Whitfield v City of New York

[*1] Whitfield v City of New York 2007 NY Slip Op 51433(U) [16 Misc 3d 1115(A)] Decided on July 27, 2007 Supreme Court, Kings County Battaglia, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on July 27, 2007
Supreme Court, Kings County

Michael Whitfield, Plaintiff,

against

The City of New York, New York City Housing Authority, New York City Department of Design and Construction, De Micco Brothers, Inc. and Vales Construction Corp., Defendants.



27697/06



Plaintiff was represented by Beth J. Schlossman, Esq. Defendants the City of New York and New York City Department of Design and Construction were represented by David C. Cooperstein, Esq. of the Corporation Counsel of the City of New York. Defendant New York City Housing Authority was represented by Robert L. Boydstun, Esq. of Harvey Gladstein & Partners LLC. Defendant De Micco Brothers, Inc. was represented by Andrew L. Klauber, Esq. and Patrick Ryan, Esq. of Malapero & Prisco LLP. Defendant Vales Construction Corp. was represented by Norman H. Dachs, Esq. of Shayne, Dachs, Stanisci, Corker & Sauer, LLP.

Jack M. Battaglia, J.

This motion raises the question of the evidentiary value of statements as to the absence of a business record or entry in establishing the nonexistence or nonoccurrence of a fact or event not recorded. Termed "negative hearsay" by at least one court (see United States v Rich, 580 F2d 929, 937 [9th Cir 1978]), statements of this type are regularly proferred by affidavit on motions for summary judgment in sidewalk and roadway accident cases. The evidentiary value of "negative hearsay" in New York State courts is clouded by a divergence between what the courts say, or at least have said in the past, and what they do, at least now.

Plaintiff Michael Whitfield alleges that on October 16, 2005 he fell "on the sidewalk/curb area approximately 12 feet west of the walk/pathway between buildings 851 and 869 Flushing Avenue, . . . which are part of the Bushwick Housing Complex and is approximately 90 feet west of the northwest corner of Bushwick Avenue." (See Verified Bill of Particulars, ¶ 3.) Named as defendants are the City of New York, New York City Housing Authority, New York City Department of Design and Construction, De Micco Brothers, Inc., and Vales Construction Corp.

A preliminary conference was held on April 27, 2007, resulting in a disclosure order. Defendant Vales Construction served this motion for summary judgment on May 7, 2007, before fully complying with the disclosure order. Although Vales has a contract with the City "to perform sidewalk renovation or replacement when specifically hired by THE CITY for this purpose" (see Affidavit of Silvano Vales, ¶ 3), the basis for Vales's motion is its contention that it performed no work for the City or the New York City Housing Authority at the location where Plaintiff fell (see id, ¶ ¶ 3, 4.)

In support of its motion, Vales Construction proffers the Affidavit of its Secretary, Silvano Vales, who asserts in the two operative paragraphs:

"3.As frequently occurs, it is assumed that VALES has been named as a defendant in this action solely on the basis that VALES, in accordance with its contract with THE CITY OF NEW YORK to perform sidewalk renovation or replacement when specifically hired by THE CITY for this purpose, applied for and obtained a permit to perform work on Flushing Avenue in the general vicinity of the accident. However, as the records maintained by VALES in the regular course of its business, annexed as Exhibit "C", conclusively demonstrate, VALES work was limited to even numbered addresses along Flushing Avenue, whereas plaintiff's accident is alleged to have occurred at an odd numbered address, i.e. 869 Flushing Avenue, located acrossthestreet from where VALES performed its work.

4.Furthermore, the work performed by VALES on the opposite side of the street was performed in April, 2002, some 18 months prior to plaintiff's alleged accident. Finally, the accident is alleged to have occurred on the housingproject property. [*2]VALES did not perform any work for the NYCHA on Flushing Avenue or, for that matter, anywhere else." (Id.)

There is nothing in Mr. Vales's Affidavit to indicate that his assertions as to the work performed by Vales Construction, and as to Vales's not having performed work, are based on anything other than "the records maintained by VALES in the regular course of its business"

(see id., ¶ 3.) "[A]nnexed as Exhibit C' " to the Affidavit are 27 sheets, each headed "Preliminary Inspection Report."

The question then is whether Mr. Vales's assertions as to the lack of any records of work performed at the location where Plaintiff fell are admissible to prove that Vales did not perform any work at the location. A separate question, although not always treated as such in judicial opinions, is whether the assertions, if admissible, are sufficient in themselves to establish prima facie that Vales is entitled to judgment as a matter of law. Considered as part of thesecond inquiry, or in connection with the question of whether any other party has raised a triable issue, is the significance of the stage of the action at which the motion has been made, specifically with respect to disclosure.

The CPLR provides for the admissibility and prima facie effect of a limited type of "negative hearsay." A statement signed by the custodian of public records "that he has made diligent search of the records and found no record or entry of a specified nature, is prima facie evidence that the records contain no such record or entry," if the statement is accompanied by a certificate as to the signatory's legal custody of the records. (See CPLR 4521; see also CPLR 4540.) "The law presumes that all officers intrusted with the custody of public files and records will perform their official duty by keeping the same safely in their offices, and if a paper is not found where, if in existence, it ought to be deposited or recorded, the presumption thereupon arises that no such document has ever been in existence, and until this presumption is rebutted it must stand as proof of such non-existence." (Deshong v City of New York, 176 NY 475, 485 [1903]; see also Jackson v Miller, 6 Cow 751, 753-54 [Sup Ct 1827], aff'd 6 Wend 228 [1830]; Matter of Atlantic Refining Co., Inc. v Zoning Board of Appeals of the Vill. of Sloan, 14 Misc 2d 1022, 1026 [Sup Ct, Erie County 1958].)

There is no provision in the CPLR, however, that the unsuccessful search for a record or entry in the business records of a private party is admissible to show the lack of the record or entry, nevermind the nonexistence or nonoccurrence of a fact or event that might have been subject to a record or entry. At least until recently, the law in New York was understood to be that "[s]uch evidence, completely negative, has uniformly been held to be hearsay in character and incompetent and irrelevant." (See Gravel Products Division v Sunnydale Acres, Inc., 10 Misc 2d 323, 325 [Sup Ct, Erie County 1958]; see also Steingart Associates, Inc. v Sandler, 28 AD2d 801, 803 [3d Dept 1967]; Roe v Nichols, 5 AD 472, 474 [2d Dept 1896]; Boor v Moschell, 8 NYS 583, 584 [Sup Ct, 5th Dept 1889]; People v Ebramha, 157 Misc 2d 222, 223 [Crim Ct,New York County 1993]; United States v Rich, 580 F2d 929, 937 [9th Cir 1978]; Bowman v Kaufman, 387 F2d 582, 587 n5 [2d Cir 1967].)

Without addressing or citing these authorities, or those to the contrary in other jurisdictions, [*3]the Appellate Division has, generally more recently, indicated that, under some circumstances at least, the lack of a record would be admissible as evidence of the fact or event not recorded. In Weinberg v Johns-Manville Products Corp. (67 AD2d 640 [1st Dept 1979]), a defendant manufacturer of asbestos products had been denied summary judgment on a motion supported solely by an affidavit of a corporate officer that, based upon a "reasonable search of all available records," the defendant had not sold asbestos products during the periods of the plaintiff's exposure to the cancer-producing substance. (See id., at 641.) A majority of the Second Department panel held that the defendant had made "a Prima (sic) facie showing that [it] was not engaged in the manufacture of the offending product at the time relevant to the plaintiff's claim." (See id.) Noauthority was cited.

But the plaintiff had not opposed the motion, "in effect abandon[ing] the action as against that defendant;" a co-defendant that had offered the only opposition to the motion before the lower court had not appeared in opposition to the appeal; and there was "not an iota of evidence controvert[ing] the [moving defendant's] disclaimer that it manufactured the asbestos." (See id.)A strong dissent acknowledged that "an assertion of fact on information based on a search of records might under certain circumstances be a sufficient predicate for summary judgment relief," but argued that "a court should be loathe to grant summary judgment . . . without affording to the other litigants the opportunity at least of pre-trial discovery and disclosure."

(See id., at 642-43 [Lupiano, J., dissenting].)

In Chiu-Caranese v DeMeo (2 AD3d 766 [2d Dept 2003]), a medical malpractice action, the Second Department held that "the trial court properly admitted the testimony of two drug company representatives that, after searching their own records and causing others with a business duty to accurately report to them to search their records, they could find no record of [the defendant doctor] receiving samples of two prescription medications" (id.) "Under the circumstances of [the] case, since the drug companies were not parties to the action and were disinterested as to its outcome, the trial court properly credited the witnesses' testimony that the searches were performed in the regular course of business." (Id., at 766-67.) The court cites CPLR 4518, which articulates the business records exception to the hearsay rule, and business records caselaw.

The court also cites Cruz v City of New York (218 AD2d 546 [1st Dept 1995]), involving the prior-written-notice requirement of the so-called "pothole law" (see Administrative Code of the City of New York § 7-201 [c].) The court in Cruz held that "[t]he affidavit of an official charged with the responsibility of keeping an indexed record of all notices of defective conditions received by the Department of Transportation is sufficient to establish that no prior written notice was filed." (Cruz v City of New York, 218 AD2d at 547; see also Scafidi v Town of Islip, 34 AD3d 669, 669 [2d Dept 2006].) "The affidavit need only indicate that the official had caused a search of the department's records to be made and that no written notice of the defective condition was found." (Cruz v City of New York, 218 AD2d at 547.)

Although affidavits of this type had apparently been accepted for some time to establish lack of prior written notice (see Zigman v Town of Hempstead, 120 AD2d 520, 521 [2d Dept 1986]; Abbatecola v Town of Islip, 97 AD2d 780, 780 [2d Dept 1983]), the decision in Cruz seems to be [*4]the first to suggest any basis for admissibility. This it did only with citation to CPLR 4518, the business records provision, and CPLR 4520, "Certificate or affidavit of public officer." These cases might, therefore, be seen as particular applications of the limited "negative hearsay" rule for public records reflected in CPLR 4521. Nonetheless, Cruz also cited CPLR 4518, and Cruz was, in turn, cited in Chiu-Caranese, which did not involve public records.

Of perhaps greater significance for present purposes are recent Second Department decisions on motions for summary judgment by abutting landowners in sidewalk injury cases. In the most recent, Furey v Sayville Union Free Sch. Dist. (36 AD3d 588 [2d Dept 2007]), the court held that "[t]he School District met its initial burden . . . by demonstrating that it neither possessed any records of work having been done on the sidewalk during a reasonable period of time preceding the accident nor otherwise created the alleged defect" (id., at 589; see also Rendon v Castle Realty, 28 AD3d 532, 532-33 [2d Dept 2006]; Rosales v City of New York, 221 AD2d 329, 329-30 [2d Dept 1995].) These decision do not cite any other authority for the admissibility of the lack-of-record evidence, nor do they suggest any departure from precedent.

Similarly, and also significant, there are a number of First Department decisions in workplace or roadway accident cases in which the lack of a record of work performed at the accident location was accepted as evidence that no work was performed at the location. (See Flores v City of New York, 29 AD3d 356, 356-58 [1st Dept 2006]; Bermudez v City of New York, 21 AD3d 258, 258-59 [1st Dept 2005]; Cibener v City of New York, 268 AD2d 334, 334 [1st Dept 2000]; Piccinich v New York Stock Exchange, Inc., 257 AD2d 438, 439 [1st Dept 1999].) Again, these decisions cite no authority for the admissibility of the lack-of-record evidence, the later do not even cite the earlier, and none suggests any departure from precedent.

To sum up, the only New York decisional authority that expressly addresses whether the absence of a business record or entry can be evidence of the nonexistence or nonoccurrence of a fact or event not recorded states clearly that it cannot, but more recent authority accepts the evidence in particular circumstances, sometimes with qualification, without even noting the doctrinal statements that would preclude it. It does seem clear, however, that, to the extent "negative hearsay" is accepted in New York outside of the public records context, it is treated within the construct of the business records exception to the hearsay rule.

It is also fair to say that the trend of authority in other jurisdictions is in favor of the admissibility of "negative hearsay." Older authorities hold that, "[a]s a general rule, private books and records are not evidence of what they do not contain." (See Winnett v Detroit United Railway, 171 Mich 629, 631, 137 NW 539, 540 [Sup Ct 1912] [emphasis in original].) And that "mercantile books may be admitted as affirmative evidence but they are not admissible to establish a negative proposition." (See Louisville Railway Co. v Kritzky, 162 Ky 652, 656, 172 SW 1051, 1053 [Ct App 1915]; see also Charles D. Stone & Co. v New York Cent. R.R. Co., 214 Ill App 483, 487 [Ct App 1919]; Scott v Bailey, 73 Vt 49, 51, 50 A 557, 557 [Sup Ct 1901]; Hyde v Lookabill, 66 Iowa 453, 454, 23 NW 920, 920 [Sup Ct 1885].) But older authorities do not uniformly reject "negative hearsay." (See People v Torres, 201 Cal App 2d 290, 296-97, 20 Cal Rptr 315, 319 [Ct App 1962] [citing cases].) [*5]

More recent authorities hold that "a litigant may prove through negative inference . . . the non-occurrence of an event or transaction from the absence of an entry in a business's records where such records normally contain like information." (See Chapman v State, 331 Md 448, 461-62, 628 A2d 676, 683 [Ct App 1993]; see also McNamara v Honeyman, 406 Mass 43, 54 n10, 546 NE2d 139, 146 n10 [Sup Jud Ct 1989]; Short v State, 443 NE2d 298, 304 [Ind Sup Ct 1982]; Resseguie v American Mutual Liability Ins. Co., 51 Wis2d 92, 105-07, 186 NW2d 236, 244 [Sup Ct 1971]; Richter v State, 1 Tenn Crim App 270, 274-76, 438 SW2d 362, 364-65 [Ct Crim App 1968]; People v Torres, 201 Cal App 2d at 296-98, 20 Cal Rptr at 319-20.)

The history of the issue in one federal circuit is illustrative. In 1935, the Ninth Circuit followed cases holding that "the nonexistence of a debt or obligation cannot be established by proof that the books contain no such entry," noting that "under some circumstances it may be proper to show that books, particularly public records, or account books required by law to be kept by public utilities, banks, etc., may sometimes be admissible to prove a negative." (See Shreve v United States, 77 F2d 2, 7 [9th Cir 1935].) By 1969, "[a]ll of the other United States Courts of Appeals which [had] passed upon the matter [had] held such evidence admissible." (See United States v De Georgia, 420 F2d 889, 892 [9th Cir 1969] [footnote omitted].) The court noted that statutes in several states and the Preliminary Draft of the Proposed Federal Rules of Evidence favored admissibility. (See id., at 892-93.) By 1978, the Federal Rules of Evidence had "resolved the issue" (see United States v Rich, 580 F2d at 937), providing an exception to the hearsay rule for

"[e]vidence that a matter is not included in the memoranda reports, records, or data compilations, in any form, kept in accordance with paragraph (6), to prove the nonoccurrence or nonexistence of the matter, if the matter was of a kind of which a memorandum, report, record, or data compilation was regularly made and preserved, unless the sources of information or other circumstances indicate lack of trustworthiness." (See Federal Rule of Evidence, Rule 803 [7].)

Distinctions undoubtedly might be made between and among the authorities on both sides of the question. But, at the end of the day, it appears that the real issue is the adequacy of the foundation provided for admission. "To merit judicial reliance on the contents of records, it is necessary that the proponent of particular records establish the trustworthiness of those records." (United States v Rich, 580 F2d at 938.)

The conditions for admissibility of "negative hearsay" must be found in the purpose of the business records exception and the foundation requirements of CPLR 4518. "[T]he business records exception grew out of considerations of necessity and trustworthiness." (People v Kennedy, 68 NY2d 569, 579 [1986].) The necessity for an alternative to the testimony of many officers and employees with personal knowledge, even assuming their availability, may be particularly compelling where proof is required of a negative. "The essence of the business records exception to the hearsay rule is that records systematically made for the conduct of a business as a business are inherently highly trustworthy because they are routine reflections of day-to-day operations and because the entrant's obligation is to have them truthful and accurate for purposes of the conduct of the enterprise." (Id.) [*6]

Separate from the question of admissibility, but related to it, is the question of probative value. "All . . . circumstances of the making of the memorandum or record . . . may be proved to affect its weight." (See CPLR 4518 [a].) On a motion for summary judgment, the question of probative value becomes whether the "negative hearsay" can be sufficient for a movant's prima facie showing that it could not have caused the plaintiff's loss. As circumstantial evidence, the evidence as to the lack of a record or entry must allow the fact-finder to infer with the requisite degree of confidence, usually more likely than not, that the fact or event in dispute did not exist or occur. Recent decisions that have accepted "negative evidence" have also found it sufficient, usually with other evidence, to make a prima facie showing on summary judgment, but do not articulate the reasons or describe the evidence in any detail.

Certainly the circumstances will vary. As a general proposition, however, the stronger the showing on the foundation requirements for admissibility, the stronger the inference that a fact or event would have been recorded if it existed or occurred. The foundation requirements, found in CPLR 4518 [a], have been elaborated by the Court of Appeals:

"first, that the record be made in the regular course of business - - essentially, that it reflect a routine, regularly conducted business activity, and that it be needed and relied on in the performance of functions of the business; second, that it be the regular course of such business to make the record (a double requirement of regularity) - - essentially, that the record be made pursuant to establish procedures for the routine, habitual, systematic making of such a record; and third, that the record be made at or about the time of the event being recorded - - essentially, that recollection be fairly accurate and the habit or routine of making the entries assured." (People v Kennedy, 68 NY2d at 579-80.)

The foundation requirements for the admissibility of business records apply to the movant's prima facie showing. (See Contreras v Klein, 17 AD3d 396, 396 [2d Dept 2005].) "A proper foundation for the admission of a business record must be provided by someone with personal knowledge of the maker's business practices and procedures." (West Valley Fire Dist. No. 1 v Village of Springville, 294 AD2d 949, 950 [4th Dept 2002]; see also Lodato v Greyhawk North America, LLC, 39 AD3d 494, 495 [2d Dept 2007]; Carrion v McNally & McNally, Inc., 18 AD3d 212, 212 [1st Dept 2005]; Vermont Commissioner of Bank. and Ins. v Welbilt Corp., 133 AD2d 396, 397 [2d Dept 1987].) These requirements are particularly important for the admissibility and weighing of "negative hearsay," since the requirements bear so heavily on the strength of an inference that a record or entry would have been found if the fact existed or event occurred.

When the Affidavit submitted in support of the instant motion is measured against the foundation requirements and general evidentiary principles, it falls significantly short. Mr. Vales states, first, that Vales Construction "applied for and obtained a permit to perform work on Flushing Avenue in the general vicinity of the accident" (see Affidavit of Silvano Vales, ¶ 3), but a copy of the permit is not provided, nor is the omission explained. (See Cosme v City of New York, 20 AD3d 320, 323 [1st Dept 2005].) The Court may fairly infer that, had the permit been provided, it would support the possibility that Vales Construction performed work at the location where Plaintiff fell. (See Jean-Pierre v Touro College, 40 AD3d 819, __ [2d Dept 2007].) The significance of the permit [*7]will be addressed below.

Mr. Vales then refers to "records maintained by VALES in the regular course of its business, annexed as Exhibit C." (See Affidavit of Silvano Vales, ¶ 3.) The documents are not listed or described, and we are not even told the number, that is, 27. There is no explanation of what is purportedly shown on the documents, except for the even-numbered addresses that appear. More importantly, two of the three requirements for the business records exception are not met. (See CPLR 4518 [a].)

Mr. Vales asserts that these attached documents "conclusively demonstrate [that] VALES work was limited to even numbered addresses along Flushing Avenue, whereas plaintiff's accident is alleged to have occurred at an odd numbered address . . . located across the street from where VALES performed its work." (See Affidavit of Silvano Vales, ¶ 3.) The documents, of course, "demonstrate" nothing of the kind. If the Affidavit is to have any value at all on this motion, it must be read as containing Mr. Vales's assertion that these are the only records of work performed by Vales Construction under the permit or "in the general vicinity of the accident" (see id.), and that, therefore, the conclusion must follow that Vales Construction performed no work at the location where Plaintiff fell. This implied assertion is similar to, and followed by, a statement that "VALES did not perform any work for the NYCHA on Flushing Avenue or, for that matter, anywhere else." (See id., at 4.)

First, the Affidavit of Mr. Vales "does not indicate the sources (e.g., documents he may have searched or reviewed, or persons he consulted) of his familiarity with" the work Vales Construction performed on Flushing Avenue, "or the company's purported lack of involvement with same." (See Barraillier v City of New York, 12 AD3d 168, 169 [1st Dept 2004].) "Where an officer's knowledge has been obtained either from unnamed and unsworn employees or unidentified and unproduced work records, the affidavit lacks any probative value." (See Dempsey v Intercontinental Hotel Corp., 126 AD2d 477, 479 [1st Dept 1987]; see also Flick Lumber Co., Inc. v Breton Industries, Inc., 223 AD2d 779, 780 [3d Dept 1996]; Republic National Bank of NY v Luis Winston, Inc., 107 AD2d 581, 582 [1ST Dept 1985].)

As to the "negative hearsay," the Affidavit does not describe the records regularly created and maintained in Vales's construction business, nor does it describe the practices and procedures for their creation, maintenance, retrieval, or use. We are not told, for example, that all work performed by or for Vales follows the preparation of a Preliminary Inspection Report of the type attached to the Affidavit, or that the work proceeds as reflected in other particular records. We are given no assurance, and no basis for concluding, that the absence of a particular record means that no work was performed.

Whether in assessing a contractor's proffer of a prima facie showing or a plaintiff's contention that a triable issue exists, a permit for work at the location where the plaintiff fell must be considered some evidence that the contractor performed work at the location. Indeed, if the absence of a permit that would have been obtained in the regular course of business can be evidence that the contractor performed no work, it would seem necessarily that the existence of a permit [*8]should be evidence of the contrary. In our case, the permit is, in effect, in the record through Mr. Vales's Affidavit, and Vales's showing must be considered in that light. (See Watt v St. Vincent's Hospital, 10 AD3d 557, 557 [1st Dept 2004].) Where a permit exists, but does not include the accident location, the permit provides support for the contractor's assertion that no work was performed at that location. (See Flores v City of New York, 29 AD3d at 358.)

A permit has been held "insufficient to raise any question of fact as to whether such work was actually performed," where there was "undisputed testimony" for the contractor that, "although it had obtained the permit, the City had cancelled the contract and, as a result, [the contractor] performed no work at the site," and that testimony was accompanied by "the undisputed record of [the contractor's] job site locations listing the areas where it actually worked pursuant to the contract, which did not include the site of plaintiff's accident." (See Bermudez v City of New York, 21 AD3d at 258-59.) But where the contractor's evidence consisted solely of the assertion of its principal that no work was done and "was otherwise unsupported," a permit for the work issued to the contractor, together with insurance certificates for the worksite, was held to raise a triable issue. (See Bral v City of New York, 221 AD2d 283, 284 [1st Dept 1995].)

Constructs like "prima facie showing" and "triable issue" can be disputed by the best and fairest minds. (See, for example, Strowman v Great Atlantic and Pacific Tea Co., Inc., 252 AD2d 384 [1st Dept 1998]; Weinberg v Johns-Manville Products Corp., 67 AD2d 640; Celotex Corp. v Catrett, 477 US 317 [1986].) In the context of summary judgement, the meaning ascribed must be affected by the status and progress of the action. Opposers are given more evidentiary leeway (see Zuckerman v New York, 49 NY2d 557, [1980]), and a need for disclosure will warrant denial (see CPLR 3212 [f].) A motion made, like this one, immediately after a preliminary conference order, without full compliance by the movant, does not present itself as among the most worthy of consideration. (See McGlynn v Palace Co., 262 AD2d 116, 117 [1st Dept 1999]; Gaughan v Chase Manhattan Bank, 204 AD2d 67, 68 [1st Dept 1994].)

"It [is] the burden of [the contractor], as the party moving for summary judgment, to come forward with evidence that, if uncontradicted, would establish its entitlement to judgment as a matter of law." (Cosme v City of New York, 20 AD3d at 323.) "[A]bove all, where the evidence bearing on the potentially dispositive issue (the location of [the contractor's] work site) is in [the contractor's] possession, and no such evidence is in the plaintiff's possession, [courts] should adhere to this rule." (Id.) In an appropriate case, where the contractor's showing is based entirely on "negative hearsay", the plaintiff may be entitled to inspect the underlying records. (See CPLR 3120; Barraillier v City of New York, 12 AD3d at 169; see also Ed Guth Realty, Inc., 34 NY2d 440, 451-52 [1974].)

For approximately a century, the law in New York was that testimony as to the lack of a record could not be evidence of the nonexistence of a fact. This Court is confident from its review of the cases discussed and cited above that, without fanfare or even acknowledgment, the Appellate Division has changed the law, at least in sidewalk and roadway accident cases. Given the history, however, and the absence of clearer direction from the appellate courts, this Court will require from a contractor that seeks dismissal of an action against it, notwithstanding the existence of a permit that indicates that it performed work at the accident location, and before any meaningful disclosure, [*9]strong evidence that the contractor did not perform any work at the location. For the reasons articulated above, Vales Construction has not provided that evidence.

The motion of defendant Vales Construction for summary judgment of dismissal is denied, with leave to renew after appropriate disclosure.

July 27, 2007___________________

Jack M. Battaglia

Justice, Supreme Court