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274 A.D.2d 703

Duntley v. State

Appellate Division of the Supreme Court of the State of New York · decided 2000-07-13

Decided 2000-07-13

—Carpinello, J.

¶1Appeal 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.

¶2Claimant 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.

¶3*704We 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.

¶4Mercure, J. P., Peters, Graffeo and Mugglin, JJ., concur. Ordered that the judgment is affirmed, without costs.

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