Baez v. City of New York ( 2000 )

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered July 24, 1998, which, upon defendant’s motion at the conclusion of plaintiffs’ case, dismissed the complaint, affirmed, without costs.

Plaintiff alleges that he fell and was injured at the corner of Murray Street and Broadway. Although he originally claimed that the accident was caused by a jagged piece of protruding metal, at trial he sought to show that his fall resulted from the excessive slope of the pedestrian ramp. This, it was asserted, was a condition of which defendant was aware.

The trial court properly dismissed the complaint since plaintiff failed to make a prima facie showing that defendant City had written notice of or created any defect in the sidewalk curb (Kelly v City of New York, 172 AD2d 350; see also, Poirier v City of Schenectady, 85 NY2d 310, 315). To the extent that plaintiffs may have been entitled to an adverse inference pertaining to this issue, as argued by the dissent, they failed to raise this argument either on appeal or before Supreme Court. Contrary to the suggestion made by the dissent, an adverse inference is distinguishable from a rebuttable presumption (George Foltis, Inc. v City of New York, 287 NY 108, 121; Prince, Richardson on Evidence § 3-102 [Farrell 11th ed]). The latter shifts the burden of proof while the former only permits the trier of fact to reach a conclusion; a rebuttable presumption has a required effect, while the effect of an adverse inference is only permissive (compare, Malacow v Consolidated Rail Corp., 167 AD2d 123, lv denied 77 NY2d 807 [proof required to obtain adverse inference], with Wisniewski v New York Cent. R. R. Co., 228 App Div 27, 31-32 [distinguishing between burden of proof, based on policy judgment, and “presumption” or inference, based on logical deduction from evidence]). Plaintiffs did not prove that the documents they sought actually existed. This record simply does not furnish proof from which a conclusion should or could be drawn that any permit for the curb cut would have been issued during the relevant time frame. Concur — Lerner, J. P., Andrias, Buckley and Friedman, JJ.