DIAZ v. STATE (2023)

Judgment, Court of Claims of the State of New York (Richard E. Sise, J.), entered May 31, 2022, after a nonjury trial, in this action arising from a motor vehicle accident, apportioning 70% liability to claimant and 30% liability to defendant and setting the matter down for trial on the issues of serious injury and damages, unanimously affirmed, without costs.  Appeal from order, same court and Judge, entered May 13, 2022, which made findings of fact as to liability and directed entry of aforesaid judgment, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

The court's finding that claimant was comparatively negligent and apportioning of 70% liability to him was not against the weight of the evidence (see Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145 [1978]).  Its finding that claimant struck defendant's stopped vehicle, as opposed to defendant's vehicle striking his, was supported by a fair interpretation of the evidence (see Lolik v. Big v. Supermarkets, Inc., 86 N.Y.2d 744, 746, 631 N.Y.S.2d 122, 655 N.E.2d 163 [1995];  Hardwick v. State of New York, 90 A.D.3d 540, 540, 935 N.Y.S.2d 22 [1st Dept. 2011]).  Drivers are duty bound to operate their motor vehicles in a manner that is reasonable and prudent under the circumstances and to see what is there to be seen through the ordinary use of their senses (see Bunn v. City of New York, 166 A.D.3d 491, 492–493, 89 N.Y.S.3d 34 [1st Dept. 2018]).