         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1079
CA 11-00351
PRESENT: SCUDDER, P.J., CENTRA, GREEN, AND GORSKI, JJ.


DUDLEY BENEDICT, CLAIMANT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

STATE OF NEW YORK, DEFENDANT-RESPONDENT.
(CLAIM NO. 107784.)


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.


     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.

     It is hereby ORDERED that the judgment so appealed from is
unanimously affirmed without costs.

     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 AD3d 168, 170), 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 AD2d 444, 445; cf.
Gonzalez v American Oil Co., 42 AD3d 253, 255-256). 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 AD2d 610, 611), 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
                               -2-                 1079
                                              CA 11-00351

v Ward, 276 AD2d 277, 278).




Entered:   November 10, 2011         Patricia L. Morgan
                                     Clerk of the Court
