New York State Court of Claims

New York State Court of Claims

GONZALEZ v. THE STATE OF NEW YORK, #2006-028-542, Claim No. 104279, Motion Nos. M-70394, CM-70457


Synopsis


Defendant’s motion to dismiss a claim because it did not comply with the substantive requirements of section 11(b) is denied because the notice of intention provided the State with all information needed to conduct an investigation and assess possible liability; Claimant’s motion for summary judgment or sanctions for spoliation of necessary evidence is granted only to the extent that a negative inference can be drawn from the absence of a piece of wood involved in Claimant’s accident.


Case Information

UID:
2006-028-542
Claimant(s):
MARY GONZALEZ, a/k/a MARIANA RIVERA
Claimant short name:
GONZALEZ
Footnote (claimant name) :

Defendant(s):
THE STATE OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104279
Motion number(s):
M-70394
Cross-motion number(s):
CM-70457
Judge:
RICHARD E. SISE
Claimant’s attorney:
ISEMAN, CUNNINGHAM, RIESTER & HYDE, LLPBY: John F. Queenan, Esq.
Defendant’s attorney:
HON. ELIOT SPITZER, ATTORNEY GENERAL
BY: Glenn C. King, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
April 12, 2006
City:
Albany
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision

The following papers were read on Claimant’s motion for summary judgment in her favor or, alternatively, for an order of preclusion and on Defendant’s cross motion for an order of dismissal:

1. Notice of Motion and Supporting Affirmation of John F. Queenan, Esq, with annexed Exhibits and Memorandum of Law


2. Notice of Cross Motion and Supporting Affirmation of Glenn C. King, AAG, with annexed Exhibits


3. Reply Affirmation of John F. Queenan, Esq., with annexed Exhibit and Memorandum of Law


Filed papers: Claim; Answer


This action arose on May 14, 2000, at Greene Correctional Facility, when Claimant Mary Gonzalez, who was a visitor to the facility, tripped and fell while going from one building to another. By these motions, Claimant seeks partial summary judgment in her favor or, alternatively, an order of preclusion, and defendant seeks dismissal of the claim on the ground that it fails to meet the pleading requirements of section 11(b) of the Court of Claims Act. Because of the jurisdictional nature of Defendant’s cross motion, it will be addressed first.

Cross Motion to Dismiss

On July 12, 2000, within 90 days of the accident, a Notice of Intention to File a Claim was served on Defendant.[1] This document (Queenan Affirmation, Exhibit E) contained the following substantive statement regarding the event giving rise to the proposed action:
On May 14, 2000 claimant MARY GONZALEZ was at the Green [sic] Correctional Facility Coxsackie N.Y. 12051 visiting inmate number 98R3030. After leaving the wood building where she was scanned and searched prior to entering the correctional facility, claimant was directed to the main building and was instructed to cross over a temporary ramp which led from the location where she was searched and scanned to the location where she was to visit with an inmate. She was caused to trip and fall and be injured by reason of the negligence, recklessness and carelessness of THE STATE OF NEW YORK, its agents, servants, employees and/or licensees in the ownership, operation, control and maintenance of said premises in causing, permitting and /or allowing said premises at the aforementioned location to be, become and remain in a dangerous and hazardous and defective condition constituting a trap, nuisance and hazard.
The notice of intention also contained a description of the injury (fractured right foot), reference to some of the types of damage suffered (medical expenses, lost income), and a demand for $3,000,000.

The Claim (Queenan affirmation, Exhibit F) was subsequently filed (May 15, 2001) and served on May 10, 2001, approximately a year after the accident. Paragraph 3 of the Claim alleges that on the date in question “a premises existed in the County of Albany, State of New York with the address of Greene Correctional Facility, Coxsackie, N.Y. 12051.” Following a number of paragraphs alleging Defendant’s responsibilities to maintain, control, operate and in other ways be responsible for this premises, Paragraph 14 contains the only substantive description of the occurrence on which the Claim is based: “That on May 14, 2000, while Claimant was lawfully at the aforesaid location, Claimant was caused to trip and fall and sustain severe and permanent injuries.” There is no further description of the location within the facility where the accident occurred, the time of day that it occurred, the nature of the State’s alleged wrongdoing, the kind of injury suffered by Claimant, or the types of damages for which she sought compensation. The Claim does, however, contain a demand for the sum of $5,000,000.

In its answer, Defendant State of New York raised, among others, the following affirmative defense:
That the claim fails to comply with Section11 of the Court of Claims Act by failing to include an adequate description of the location of the incident alleged in the claim and, therefore, there is no proper claim over which the Court has jurisdiction.
The answer makes no reference to the Notice of Intention.

Section 11(b) of the Court of Claims Act requires that “[t]he claim shall state the time when and place where such claim arose, the nature of same, and the items of damage or injuries claimed to have been sustained and the total sum claimed.” The same statute provides that, when a notice of intention is employed, it shall set forth the same information “except that the items of damage or injuries and the sum claimed need not be stated.”

In support of the cross motion to dismiss, defense counsel asserts that “the claim is so lacking in terms of specifics as to be jurisdictionally defective” (King Affirmation, ¶ 44). The Court notes that both the time in which another claim could be filed and served (two years from the date of accrual [Court of Claims Act §10[3]) and the time in which Claimant could have moved for permission to late file (three years from date of accrual [Court of Claims Act §10[6]; CPLR 214) expired before either of these motions were commenced.

The accepted standard for determining whether the content of a claim or notice of intention meets the pleading requirements of section 11(b) was recently discussed by the Court of Appeals in Lepkowski v State of New York (1 NY3d 201 [2003]). The statutory requirement has been met and information contained in a claim is sufficiently definite, the court stated, if it “enable[s] the State . . . to investigate the claim[s] promptly and to ascertain its liability under the circumstances” (id. at 207, quoting Heisler v State of New York, 78 AD2d 767, 767 [4th Dept 1980]). This criteria was declared to be “the guiding principle informing section 11(b)” (Lepkowski v State of New York, at 207).

Defendant is not required to go beyond the claim or notice of intention in order to be able to investigate an occurrence or to obtain information necessary for such an investigation to occur (id. at 208, citing to Cobin v State of New York, 234 AD2d 498, 499 [2d Dept 1996], lv dismissed 90 NY2d 925, rearg denied 91 NY2d 849 and quoting Grande v State of New York, 160 Misc 2d 383, 386 [Ct Cl 1994]; see also Rhodes v State of New York, 245 AD2d 791 [3d Dept 1997]; Arquette v State of New York, 190 Misc 2d 676 [Ct Cl 2001]). In Cobin, the Notice of Intention alleged that the injured party fell “on the boardwalk at Jones Beach . . . in the East Quarter Circle, or its vicinity.” This statement, it was held, did not identify the place where the claim arose “with sufficient specificity” to meet the statutory pleading requirement. In Grande, the location of the accident was given as Rt 25A and reference was also made to the Village of Brookville. This information, the court held, “does not sufficiently identify the place of occurrance so that the defendant could investigate the accident” (160 Misc 2d at 386).

On the other hand, the substantive information in a claim or notice of intention does not have to provide all of the information the State may need in order to assess its potential liability. Rather, there must be enough specific details about the time, location, and nature of the claim to enable the State to easily conduct an investigation and, through such investigation, assess its risk of being found liable (see e.g. Arquette v State of New York, 190 Misc 2d 676, supra [a notice of intention that identified the time of an accident, the general location, and a condition that “must have been created by employees or agents of the State itself” provided enough information to permit identification of the employee involved and “through him, to learn enough about the accident to perform an initial investigation”]; Cannon v State of New York, 163 Misc 2d 623, 627 [Ct Cl 1994][“notice of intention which provides a location specific enough to [permit the State to] locate its own employee directly responsible for the building, satisfies the requirement of Section 11 to set forth the place where the claim arose"]; Vogler v State of New York, 2002 WL 32068269 [Ct Cl 2002] [because the incident occurred at 6:55 p.m. on a certain date, and involved four correction officers “Defendant had, or should have had, ample notice of the occurrence, its location, and sufficient opportunity to investigate the facts surrounding the claim”]).

Considered against this standard, the information provided by the Claim in the instant action is woefully insufficient. From the allegations contained in the Claim, Defendant would know only that at some unspecified location on the premises of Greene Correctional Facility, at some undesignated time on May 14, 2000, Claimant tripped and fell, that she was injured, and that she wants to recover $5 million. In order to be able to conduct any sort of meaningful investigation of an event so described, the State first would have to conduct a separate investigation just to identify the event.[2] As the Court of Appeals observed, “[T]his is not the State’s burden. The Court of Claims Act does not require the State to ferret out or assemble information that section 11(b) obligates the claimant to allege” (Lepkowski v State of New York, supra, at 208).

In marked contrast to the Claim, the Notice of Intention that was served by Claimant fulfilled the statutory purpose and provided sufficiently definite information to enable a prompt and efficient investigation to be conducted. In addition to the date of the occurrence, the buildings on either side of the accident site were described with sufficient detail that the location would be apparent to anyone familiar with the area.[3] By describing the point in the visitation process that had been reached, the time of the occurrence is further refined. In addition, although neither is required for a notice of intention, the nature of Claimant’s injuries were described and a monetary demand was included.

With this information, State officials could – and apparently did – readily find the written report of the incident (the Unusual Incident Report). This document described the event further, even to the type of shoes Claimant was wearing; identified eyewitnesses and the personnel who provided immediate assistance (Coxsackie Rescue Squad); noted the hospital where Claimant was treated; and identified facility officials who were notified of the event (Captain Belarge, the Officer of the Day, Superintendent David, Captain Swader, and the Fire and Safety Officer). With this, the State had ample information to provide an essentially unhindered ability to investigate the particulars of the incident. If even more information was needed from Claimant, the State could make use of its authority, pursuant to section 17-a of the Court of Claims Act,[4] to “demand an examination of the claimant relative to the occurrence and extent of the injuries or damages for which claim is made.” In short, Claimant’s Notice of Intention provided enough detail to permit the State to easily locate relevant documentary information and/or identify employees who would have information about the event.

The question presented here, therefore, is whether the jurisdictional pleading requirements for commencing an action in this Court can be satisfied by 1) a notice of intention that provides all the substantive information required by section 11(b) and 2) a claim that by any standard is deficient and fails to meet that statutory content requirement.

“Because suits against the State are allowed only by the State's waiver of sovereign immunity and in derogation of the common law, statutory requirements conditioning suit must be strictly construed” (Dreger v New York State Thruway Auth., 81 NY2d 721, 724 [1992] and cases citing thereto). Here, the Claim lacks much of the information that claims are supposed to contain. On the other hand, the “guiding principle” of section 11(b)’s pleading requirement -- that the State must be able to promptly investigate the matter and ascertain its liability under the circumstances – was accomplished by the timely Notice of Intention.

In the instant case, Defendant’s own actions suggest that it was not deprived of an opportunity to promptly investigate the matter or that it was prejudiced in any way by the deficient Claim. Other than noting that deficiency in its Answer, the State did nothing in the years following commencement of this action to suggest that it had been put at a disadvantage. Both parties appeared at the Court’s preliminary conference (King Affirmation, Exhibit A [Daily Report setting forth a discovery schedule]), and both engaged in substantial discovery, including document production, several examinations before trial, retention of experts, and exchange of CPLR 3101(d) expert responses. In February 2004, a note of issue and certificate of readiness was filed.

As unusual as this situation seems, it appears that this is not the first time a notice of intention that meets the pleading requirements of section 11(b) has been followed by service and filing of a clearly deficient claim. In Peralta v State of New York (Ct Cl, Claim No. 107542, Motion Nos. M-67396, CM-67664, Scuccimarra, J., Feb. 10, 2004, UID # 2004-030-902), a notice of intention containing all necessary information was held to have invoked the jurisdiction of the court, so that the subsequent claim’s omission of a complete description of the location of the incident was “a minor, non-jurisdictional, pleading error” that could be addressed, if necessary, by amendment. Observing that the notice of intention was the only document to been served within ninety days after the claim accrued, the court stated:
[S]ervice of a document that complies with sections 10 and 11 is the sine qua non of Court of Claims jurisdiction over tort claims. How, then, could it be rationally argued that we should ignore the contents of that document when determining whether a claimant has properly invoked that jurisdiction?
A similar result was reached in Feliciano v State of New York (Ct Cl, Claim No. 107735, Motion Nos. M-67617, CM-67764, Scuccimarra, J., March 26, 2004) where the claimant “complied with the statute by serving a notice of intention that contains everything the statute requires, by an appropriate method, within the required time period.” Such a holding does not mean that the contents of a claim are unimportant, only that the information contained in the notice of intention should be taken into account when determining whether the pleading requirements of section 11(b) have been met sufficiently to invoke the Court’s jurisdiction.

This Court agrees that a claimant who complies with the requirements of section 11(a) relating to time and manner of service and who provides, in a timely manner, all of the substantive information required by section 11(b) in his or her notice of intention has properly invoked the jurisdiction of the Court. The purpose of the substantive content requirements of section 11(b) has been met when the State is given, in a timely fashion, sufficient information to allow it to conduct an investigation of the underlying events. If the claim that is filed and served sometime later does not contain all of the required information, that defect does not have jurisdictional implications because it has no impact on the State’s ability to investigate or its knowledge of the allegations against it. Defendant’s remedy, if one is needed, would be a motion for a more definite statement (CPLR 3024[a]), and/or Claimant would be able to amend. Or, as occurred here, the parties could simply proceed with discovery and ready the claim for trial. For these reasons, Defendant’s cross motion to dismiss the claim will be denied.

Claimant’s Motion for Summary Judgment or an Order of Preclusion

This motion, arising from allegations of spoliation, is based on the fact that the temporary ramp/stair structure on which Claimant fell was apparently altered between the time of the accident, May 14, 2000, and the dates on which they were inspected by Claimant’s representatives, in April 2003 and February 2005. Although there is no documentation, such as a work order, to establish that work was performed on the structure or, if so, what work was done, the State’s own expert architect, Raymond E. Webster, stated that such a change had occurred:
The edge board of the landing, called the nosing board, is where Ms. Gonzalez states that she fell. This board has been replaced since the original construction. The original board was installed and then the railing posts were installed on top of it. At some point, this nosing board was cut out and a new board was installed between the posts. Small pieces of the original board are still evident under the posts.

The photographs taken by Irving Paris [Claimant’s expert] on February 15, 2005 show the new board, and all of his “slope” measurements are based on it. However, the photos taken on the day of Ms. Gonzalez’s fall do not show a cut nosing board. Moreover, Mr. Paris’ photos show a different grain pattern in the nosing board from the photos of May 14, 2000.
(Report of Raymond E. Webster [Queenan Affirmation, Exhibit L].) Prior to receipt of this expert’s report, Claimant’s counsel had no knowledge of any change having been made to the steps (id. ¶ 21).

There are four sets of photographs of the steps and ramp structure in question.
  1. May 14, 2000: 3 photographs of Claimant at the steps, as she awaited medical attention, by Defendant’s representatives (id. Exhibit D)
  1. (date unknown but said to be after the accident)[5]: 3 photographs taken by Defendant’s investigator in anticipation of litigation (id. Exhibit H)
  1. April 1, 2003: 3 photographs taken by a representative of Claimant’s first attorney (id. Exhibit J)
  1. February 15, 2005: 2 photographs taken by Claimant’s expert (id. Exhibit K)

From a review of these photographs, it is not immediately apparent to the Court that there was any change made to the steps between the May 14, 2000 photographs and those taken later. The feature to which Webster referred as proof of the alteration – the “cut” nosing board next to a small portion of the original board – is totally in a shadow on the May 14, 2000 pictures, so it is difficult to make any real comparison. Nor is it evident, at least to the untrained eye, that there is any difference in the grain pattern of the wood on either of the two steps. Furthermore, the same, apparently old and rusty, two-piece metal bracket is attached to the outside of the post leading up from the top step, indicating that at least that portion of the step assembly was not changed. On the other hand, there do appear to be some distinctive knots in the last board on the top step in the 2000 pictures that are not apparent on the subsequent ones (see King Affirmation, ¶¶ 20-23; Exhibits H, I, J) and testimony of the plant supervisor, Henry Weinert, indicated that a change of the sort described might well be made without going through the formality of obtaining a written work order (id, ¶ 20). For purposes of this motion, therefore, the Court will assume that, at trial, expert testimony and guided examination of the photographs will establish that the edge board on the top step/platform (i.e., the “nosing board”) was altered between the day Claimant fell and the first date that any subsequent photographs were taken. The question then becomes whether such a change, and the State’s failure to retain the original nosing board, constitutes spoliation.

Spoliation occurs when a litigant disposes of an essential piece of evidence before the adversary has an opportunity to inspect it (DiDomenico v C&S Aeromatik, 252 AD2d 41, 52-53 [2d Dept 1998]; Squitieri v City of New York, 248 AD2d 201, 203-204 [1st Dept 1998]; Brown v Michelin Tire Corp., 204 AD2d 255 [2d 1994], lv denied 84 NY2d 808 [1994]). Sanctions have been found to be appropriate where a party destroys crucial evidence intentionally, knowing litigation was pending or imminent, or even where it was destroyed negligently if the evidence was key to a party’s ability to prove or defend its case (Mudge, Rose, Guthrie, Alexander & Ferdon v Penguin Air Conditioning Corp., 221 AD2d 243 [1st Dept 1995]).

The most critical factor is the crucial nature of the evidence that is lost or destroyed; next in importance is whether the party in possession of the evidence was aware that litigation was pending or had received any request that it be provided or preserved (Sage Realty Corp. v Proskauer Rose, LLP, 275 AD2d 11 [1st Dept 2000], lv dismissed 96 NY2d 937 [2001]). “In the absence of pending litigation or notice of a specific claim, a defendant should not be sanctioned for discarding items in good faith and pursuant to its normal business practices" (Conderman v Rochester Gas & Elec. Corp., 262 AD2d 1068, 1070 [4th Dept 1999]). In seeking to have sanctions applied, the party alleging spoliation is required to demonstrate that the opposing party "destroy[ed] essential physical evidence," leaving them without the ability to prove their claim with incisive evidence (Foncette v LA Express, 295 AD2d 471, 472 [2d Dept 2002]; see also DiDomenico v C & S Aeromatik Supplies, 252 AD2d 41, supra; Marro v St. Vincent's Hosp. & Med. Ctr. of N.Y., 294 AD2d 341 [2d Dept 2002]).

The penalties for a refusal to comply with disclosure requests are those provided for in section 3126 of the CPLR. That section allows a court to order that the issues to which the information is relevant be deemed resolved for purposes of the action against the party who destroyed or failed to preserve the significant evidence (subd 1); to prohibit the disobedient party from supporting or opposing designated claims or defenses or producing in evidence designated things or items of testimony (subd 2); or to strike the pleadings of the disobedient party, dismiss the action, or enter default judgment (subd 3).

Determining whether there should be a sanction for spoliation and, if so, what that sanction should be, is assessed on a case-by-case basis and confined to the sound discretion of the court. Sanctions are not warranted unless the moving party meets its burden of establishing that the evidence destroyed is crucial to its case (Cameron v Nissan 112 Sales Corp., 10 AD3d 591 [2d Dept 2004]; Tawedros v St. Vincent's Hospital of New York, 281 AD2d 184 [1st Dept 2001]). Nor are sanctions appropriate where there is no indication that defendants had disposed of crucial evidence with knowledge of its potential evidentiary value (see e.g. Balaskonis v HRH Constr. Corp., 1 AD3d 120, 121 [1st Dept 2003]; Boyle v City of New York, 291 AD2d 315 [1st Dept 2002]; Smith v New York City Health and Hosp. Corp., 284 AD2d 121 [1st Dept 2001], lv denied 97 NY2d 607 [2001] ). Other factors to be considered are whether the spoliation prejudices just one or both parties (De Los Santos v Polanco, 21 AD3d 397 [2d Dept 2005]) and, perhaps most significantly, whether a sanction is necessary as a matter of elementary fairness (Puccia v Farley, 261 AD2d 83 [3d Dept 1999]).

Stringent sanctions, such as dismissal of the action, may be appropriate as a matter of elementary fairness when the missing evidence is "the very instrumentality giving rise to plaintiff's injuries" (Cutroneo v Dryer, 12 AD3d 811, 813 [3d Dept 2004], quoting Cummings v Central Tractor Farm & Country, 281 AD2d 792, 793 [3d Dept 2001], lv dismissed 96 NY2d 896 [2001]). In most instances, however, lesser sanctions are imposed, such as requiring that a negative inference be drawn regarding the absence of the information or piece of evidence (see e.g. De Los Santos v Polanco, 21 AD3d 397, supra; Ifraimov v Phoenix Industrial Gas, 4 AD3d 332 [2d Dept 2004]; Mylonas v Town of Brookhaven, 305 AD2d 561, 562-563 [2d Dept 2003]; Tommy Hilfiger, USA v Commonwealth Trucking, 300 AD2d 58 [1st Dept 2002]; Favish v Tepler, 294 AD2d 396 [2d Dept 2002]).[6]

In the instant case, because there was no written work order or other documentation, it is impossible to know when the nosing board of the stairs was altered and the original board removed and discarded. Consequently, it is not possible to determine with any certainty whether Defendant was on notice that it would be sued in connection with the condition of that feature of the ramp/stair structure. If the alteration occurred prior to May 2002, Defendant might well have been unaware of the potential importance of that piece of wood. The temporary structure on which Claimant fell contains both an inclined ramp and, at right angles to the ramp, a set of two stairs (shown most clearly in Queenan Affirmation, Exhibit H). The Notice of Intention mentioned only a ramp (“claimant was directed to the main building and was instructed to cross over a temporary ramp”), and the Claim, as discussed above, provided no specific information about the location or cause of Claimant’s accident. It does not appear that there was necessarily any focus on the stairs until May 2002, when Defendant produced copies of the photographs showing Claimant where she fell, on the walkway in front of the stairs (Queenan Affirmation, Exhibit G). It was more than a year later, at Claimant’s November 2003 deposition, before attention was directed to the nosing board of the top step (Queenan Affirmation, Exhibit A, pp 13-14). If the nosing board had been altered prior to May 2002, therefore, there can be no basis for concluding that Defendant took such action with any knowledge that litigation relating to it was pending or imminent.[7]

Although the board that was present on the structure on the day in question would be a critical piece of evidence in this case, its absence affects both parties’ ability to prove their case. Since Claimant bears the burden of proof, however, she is more prejudiced than Defendant. Still, the inevitable conclusion to be drawn from the fact that it is absent will, if the Court were to require that a negative inference be drawn, even that disparity. If one assumes that the nosing board was altered after the accident, thereby making the measurements taken by Claimant’s expert irrelevant to the action, the natural and logical conclusion is that it was repaired in the normal course of business because it was in some fashion defective or damaged. Accordingly, the Court concludes that there is no basis for the sanctions requested by Claimant – partial summary judgment in her favor or striking the answer – and grants the motion only to the extent that a negative inference may be drawn from the fact (if established) that the original nosing board is missing.

Claimant’s motion is denied except to the extent set forth above, and Defendant’s cross motion is denied.


April 12, 2006
Albany, New York

HON. RICHARD E. SISE
Judge of the Court of Claims




[1]. At the time the Notice of Intention was served, Claimant was represented by a different law firm.
[2]. In all likelihood, the State would have to collect every document relating to events that occurred at Greene Correctional Facility, at any location within that facility, at any time on the date in question to see if Claimant’s name appeared anywhere or if there were any references to a slip and fall accident involving a woman.
[3]. Counsel for Defendant argues that the Notice of Intention was deficient because it did not provide an adequate description of the site of the accident (King Affirmation, ¶ 47). The Court disagrees. The actual location of the action was described on the Unusual Incident Report (Queenan Affirmation, Exhibit C) as the “visit process area outdoor stairs located between the visit process area and administration building.” The Notice of Intention infers that the fall occurred on a temporary ramp between the “wood building where she was scanned and searched” and “the main building” where “she was to visit with an inmate.” In the Court’s view, anyone familiar with Greene Correctional Facility, including anyone charged with investigating the incident, would be able to identify the “the wood building where she was searched and scanned” as the “the visit processing center” and the “main building” as the “administration building.”

[4]. Subdivision 1 of this statute provides, in relevant part, as follows: “Wherever a notice of intention to file a claim is served, the defendant shall have the right to demand an examination of the claimant relative to the occurrence and extent of the injuries or damages for which claim is made, which examination shall be upon oral questions unless the parties otherwise stipulate and may include a physical examination of the claimant by a duly qualified physician.” The statute further provides, in subdivision 5, that “no claim shall be commenced against the defendant against which the notice of intention to file a claim is made unless the claimant has duly complied with such demand for examination” (see First Church in Albany of the Reformed Church in America v State of New York, 192 Misc 2d 66 [Ct Cl 2002]).
[5]. Claimant’s counsel states that “upon information and belief” these photographs were taken more than one year after Claimant’s fall (Queenan Affirmation, p 5 n 1).

[6]. If the instant claim were to be decided by a jury, the negative inference instruction would be that the jury could infer that the evidence if produced “would not have supported Defendant” and/or “would not contradict the evidence offered by Claimant” (based on NY PJI 1:77).
[7]. The fact that Defendant could have learned at a much earlier date that the stairs were involved in the accident by investigating its own records is not determinative. Although the law requires that the State be given the opportunity to conduct a prompt investigation of events that are or may become the subject of lawsuits, it does not place an affirmative duty on Defendant to conduct such investigation. Consequently, Defendant cannot be charged with knowledge that it could have discovered as soon as it learned of the lawsuit, in the absence of evidence or some reason to believe that it did, in fact, acquire such knowledge.