Opinion
2011-11-10
Dudley BENEDICT, Claimant–Appellant,v.STATE of New York, Defendant–Respondent. (Claim No. 107784.)
Appeal from a judgment of the Court of Claims (Jeremiah J. Moriarty, III, J.), entered June 17, 2010 in a personal injury action. The judgment dismissed the amended claim.Gallo & Iacovangelo, LLP, Rochester (David D. Spoto of Counsel), for claimant-appellant.Eric T. Schneiderman, Attorney General, Albany (Julie M. Sheridan of Counsel), for defendant-respondent.MEMORANDUM:
Claimant appeals from a judgment that, following a trial, dismissed his amended claim for damages arising from injuries he allegedly sustained when he fell on an ice patch in a parking lot of the State University of New York. Viewing the evidence in the light most favorable to sustain the judgment and giving due deference to the
credibility determinations of the Court of Claims ( see generally Matter of City of Syracuse Indus. Dev. Agency [Alterm, Inc.], 20 A.D.3d 168, 170, 796 N.Y.S.2d 503), we reject claimant's contention that the court erred in determining that defendant did not have constructive notice of the dangerous condition, i.e., the ice patch ( see Carricato v. Jefferson Val. Mall Ltd. Partnership, 299 A.D.2d 444, 445, 749 N.Y.S.2d 575; cf. Gonzalez v. American Oil Co., 42 A.D.3d 253, 255–256, 836 N.Y.S.2d 611). We also reject claimant's contention that reversal is required based on the refusal of the court to draw a negative inference based on defendant's failure to call an engineering expert as a witness. The record does not contain the expert disclosure of the engineering expert that was purportedly reviewed by the court, and on the record before us we therefore are unable to review plaintiff's contention that a negative inference was warranted. In any event, we note that the determination whether to draw a negative inference is permissive rather than required ( see Kronenberg v. Morris, 174 A.D.2d 610, 611, 571 N.Y.S.2d 316), and it cannot be said that the court's determination not to do so under the circumstances of this case constitutes reversible error ( see 318 E. 93 v Ward, 276 A.D.2d 277, 278, 713 N.Y.S.2d 860).
It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.
PRESENT: SCUDDER, P.J., CENTRA, GREEN, and GORSKI, JJ., concur.