132 A.D.2d 781 | N.Y. App. Div. | 1987
Appeal from a judgment in favor of the State, entered October 29, 1985, upon a decision of the Court of Claims (Benza, J.).
On June 27, 1980, at about 9:25 p.m., claimants were driving north on State Route 9G, a two-lane highway in Columbia County, when their car was struck by a southbound vehicle driven by Kenneth Swartz. At the time of the accident, it was dark and the only illumination was from the headlights of both cars. Swartz died immediately as a result of the collision and both claimants were injured. A blood test revealed that Swartz was intoxicated. Claimants commenced this action alleging that the accident was proximately caused by the State’s failure to properly maintain the shoulder of the highway. After a trial, the Court of Claims dismissed the claim. This appeal by claimants ensued.
Claimants correctly maintain that the State has a duty to
Since this appeal involves a determination made after a nonjury trial, this court may weigh the evidence and grant the judgment which should have been granted by the trial court (see, Arnold v State of New York, 108 AD2d 1021, 1023, appeal dismissed 65 NY2d 723). However, the Trial Judge’s findings are entitled to some deference where they are based on firsthand assessment of the evidence and the ability to observe the demeanor of the witnesses (see, Cordts v State of New York, 125 AD2d 746). The only direct evidence that the Swartz car reentered the highway at the site of the defect in the shoulder was the testimony of Gordon Saulpaugh. However, as observed by the Court of Claims, the accident occurred at night and the only illumination was provided by the headlights of the cars. Further, the lights of the oncoming car would have been shining at Saulpaugh. Thus, Saulpaugh’s opportunity to accurately observe was limited. Additionally, the expert evidence offered by claimants was not strong. One expert did not independently conclude that the Swartz vehicle ran over the defective portion of the shoulder, but based his accident reconstruction on Saulpaugh’s statement of what he observed. The other expert based his opinion to a great extent
Judgment affirmed, without costs. Mahoney, P. J., Casey, Yesawich, Jr., Levine and Harvey, JJ., concur.