| Huner v State of New York |
| 2011 NY Slip Op 09594 [90 AD3d 992] |
| December 27, 2011 |
| Appellate Division, Second Department |
| Bruce Huner, Appellant, v State of New York,Respondent. |
—[*1] Eric T. Schneiderman, Attorney General, New York, N.Y. (Peter H. Schiff and Julie M.Sheridan of counsel), for respondent.
In an action to recover damages for personal injuries, the claimant appeals from a (1) adecision of the Court of Claims (Lack, J.), dated September 24, 2010, made after a nonjury trial,and (2) a judgment of the same court dated November 1, 2010, which, upon the decision, is infavor of the defendant and against him, dismissing the claim.
Ordered that the appeal from the decision is dismissed, as no appeal lies from a decision(see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.
On an appeal from a judgment entered after a nonjury trial, the power of this court " 'toreview the evidence is as broad as that of the trial court, bearing in mind . . . thatdue regard must be given to the decision of the Trial Judge who was in a position to assess theevidence and the credibility of the witnesses' " (Tornheim v Kohn, 31 AD3d 748, 748 [2006], quotingUniversal Leasing Servs. v Flushing Hae Kwan Rest., 169 AD2d 829, 830 [1991]; seeNorthern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499[1983]; Sprague v State of NewYork, 35 AD3d 843 [2006]). After a nonjury trial, the Court of Claims determined, interalia, that the defendant's employee's operation of a state-owned vehicle was not negligent. Basedon this determination, the Court of Claims concluded that the defendant could not be held liable,because any purported negligence in permitting the employee to drive without a driver's licensewas not a proximate cause of the accident.
We find no basis to disturb this determination. The evidence in the record revealed thatstate-owned vehicles were permitted to be operated in the area of the park where the accidentoccurred and that the defendant's employee was driving the state-owned vehicle slowly andbraked immediately upon seeing the claimant enter the walkway on his bicycle from around ablind corner (see Sprague v State ofNew York, 35 AD3d 843 [2006]).[*2]
In light of our determination, we need not address theparties' remaining contentions. Angiolillo, J.P., Dickerson, Hall and Sgroi, JJ., concur.