Duntley v. State

Appellate Division of the Supreme Court of New York

Duntley v. State

274 A.D.2d 703, 710 N.Y.S.2d 469, 2000 N.Y. App. Div. LEXIS 7778

Appellate Division of the Supreme Court of the State of New York·Decided July 13, 2000·Published

Opinion

—Carpinello, J.

Appeal from a judgment of the Court of Claims (Bell, J.), entered December 28, 1998, upon a decision of the court in favor of the State.

Claimant commenced this negligence claim to recover damages for personal injuries sustained after he fell while allegedly performing a field sobriety test at the direction of a State Trooper. Following a nonjury trial, the Court of Claims dismissed the claim resulting in this appeal.

[704] We affirm. The record provides ample support for the Court of Claims’ finding that claimant, admittedly “highly intoxicated”, fell while standing with his feet together and not while performing a “one-leg stand”. Claimant’s contention to the contrary presented an issue of credibility which the court properly resolved against him (see, e.g., Savio v State, 268 AD2d 907). In any event, even assuming claimant’s contention in this regard was true, we find no evidence in the record to suggest that claimant’s performance of a one-leg stand, at the Trooper’s request, would have been unreasonable under the circumstances (cf., Thomas v State of New York, 46 NY2d 1043; Parvi v City of Kingston, 41 NY2d 553, 559-560; see, Johnson v State of New York, 253 AD2d 274). Accordingly, we find that the claim was properly dismissed.

Mercure, J. P., Peters, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.

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—Carpinello, J.

Appeal from a judgment of the Court of Claims (Bell, J.), entered December 28, 1998, upon a decision of the court in favor of the State.

Claimant commenced this negligence claim to recover damages for personal injuries sustained after he fell while allegedly performing a field sobriety test at the direction of a State Trooper. Following a nonjury trial, the Court of Claims dismissed the claim resulting in this appeal.

[704] We affirm. The record provides ample support for the Court of Claims’ finding that claimant, admittedly “highly intoxicated”, fell while standing with his feet together and not while performing a “one-leg stand”. Claimant’s contention to the contrary presented an issue of credibility which the court properly resolved against him (see, e.g., Savio v State, 268 AD2d 907). In any event, even assuming claimant’s contention in this regard was true, we find no evidence in the record to suggest that claimant’s performance of a one-leg stand, at the Trooper’s request, would have been unreasonable under the circumstances (cf., Thomas v State of New York, 46 NY2d 1043; Parvi v City of Kingston, 41 NY2d 553, 559-560; see, Johnson v State of New York, 253 AD2d 274). Accordingly, we find that the claim was properly dismissed.

Mercure, J. P., Peters, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.

Duntley v. State, 274 A.D.2d 703, 710 N.Y.S.2d 469, 2000 N.Y. App. Div. LEXIS 7778 (N.Y. Ct. App. 2000).

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