Blum v. State — 202 A.D.2d 538

Majority

p. 538

Marc Blum, as Executor of Deborah Blum, Also Known as Deborah K. Blum, Deceased, et al., Appellants-Respondents, v State of New York, Respondent-Appellant.

(Claim No. 80413.)

[610 NYS2d 813]

—In a claim to recover damages for, inter alia, wrongful death, the claimants appeal from so much of a judgment of the Court of Claims (Silver-man, J.), dated October 17, 1991, as dismissed the claim, and the State of New York cross-appeals from so much of the same judgment as dismissed its counterclaims.

Ordered that the cross-appeal is dismissed as abandoned; and it is further,

Ordered that the judgment is affirmed insofar as appealed from; and it is further,

Ordered that the respondent-appellant is awarded one bill of costs.

We find that the Court of Claims properly dismissed the claim on the merits for failure to establish, by a fair preponderance of the evidence, that there was a dangerous condition in the eastbound lane of Route 25 which caused the accident at issue (see, Fiege v State of New York, 189 AD2d 748 ).

The claimants’ remaining contentions are either unpreserved for appellate review (see, Matter of New York City Asbestos Litig. [Brooklyn Nav. Shipyard Cases], 188 AD2d 214 , affd 82 NY2d 821 ; Richardson, Evidence § 538, at 531 [Prince 10th ed]) or without merit. Rosenblatt, J. P., Lawrence, Altman and Goldstein, JJ., concur.

Cases cited

Fiege v. State 189 AD2d 748 N.Y. App. Div. 1993-01-11 p. 538
In re New York City Asbestos Litigation 188 AD2d 214 N.Y. App. Div. 1993-02-09 p. 538