Hardwick v. State , 935 N.Y.2d 22 ( 2011 )

Since the trial court’s apportionment of liability was based on a credibility determination, our review is limited to whether the court arrived at its conclusion by means of a fair interpretation of the evidence (see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]; Green v William Penn Life Ins. Co. of N.Y., 74 AD3d 570, 571-573 [2010, Saxe, J., concurring]; see also Watts v State of New York, 25 AD3d 324 [2006]). The record supports the finding that claimant bears some responsibility for his injuries. However, it does not support the finding that the dangerous condition was open and obvious. Thus, we modify the apportionment accordingly. Concur — Gonzalez, P.J., Mazzarelli, Andrias, Sweeny and Román, JJ.