DUNTLEY v. STATE (2000)

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.

 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 A.D.2d 907, 703 N.Y.S.2d 548).   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 N.Y.2d 1043, 416 N.Y.S.2d 546, 389 N.E.2d 1068;  Parvi v. City of Kingston, 41 N.Y.2d 553, 559-560, 394 N.Y.S.2d 161, 362 N.E.2d 960;  see, Johnson v. State of New York, 253 A.D.2d 274, 687 N.Y.S.2d 761).   Accordingly, we find that the claim was properly dismissed.

ORDERED that the judgment is affirmed, without costs.

CARPINELLO, J.

MERCURE, J.P., PETERS, GRAFFEO and MUGGLIN, JJ., concur.