Opinion
2013-05-8
Nicolino PERRIELLO, Sr., appellant, v. STATE of New York, respondent.
Richard B. Herman, New York, N.Y. (Stefanie Plaumann of counsel), for appellant. Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (Vincent W. Crowe of counsel), for respondent.
Richard B. Herman, New York, N.Y. (Stefanie Plaumann of counsel), for appellant. Bleakley Platt & Schmidt, LLP, White Plains, N.Y. (Vincent W. Crowe of counsel), for respondent.
REINALDO E. RIVERA, J.P., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and ROBERT J. MILLER, JJ.
In a claim to recover damages for personal injuries, the claimant appeals from a judgment of the Court of Claims (Mignano, J.), dated November 30, 2011, which, upon a decision of the same court dated October 7, 2011, made after a nonjury trial on the issue of liability, is in favor of the defendant and against him dismissing the claim.
ORDERED that the judgment is affirmed, with costs.
“Where, as here, a case is tried without a jury, this Court's power to review the evidence is as broad as that of the trial court, ‘taking into account in a close case the fact that the trial judge had the advantage of seeing the witnesses' ” ( Terry v. State of New York, 39 A.D.3d 846, 846, 832 N.Y.S.2d 809, quoting Northern Westchester Professional Park Assoc. v. Town of Bedford, 60 N.Y.2d 492, 499, 470 N.Y.S.2d 350, 458 N.E.2d 809;see Melius v. Breslin, 46 A.D.3d 524, 525, 846 N.Y.S.2d 645;Betsy Meyer Assoc., Inc. v. Lorber, 42 A.D.3d 509, 509, 838 N.Y.S.2d 914). Here, the Court of Claims' determination, including its conclusion that the New York State Police investigator who arrested the claimant did not use excessive force, was warranted by the facts adduced at trial. Moreover, the court's determination rested in large part upon its assessment of the credibility of the witnesses, and we find no reason to disturb that assessment ( see Terry v. State of New York, 39 A.D.3d at 846, 832 N.Y.S.2d 809;see also Tornheim v. Kohn, 31 A.D.3d 748, 748–749, 818 N.Y.S.2d 491).
The claimant's remaining contentions are either not properly before this Court or without merit.