Opinion
2017–00507 Index No. 8145/11
07-10-2019
C.B., etc., Appellant, v. VALLEY STREAM CENTRAL HIGH SCHOOL DISTRICT, Respondent.
Tracy, Stilwell & Parrinello, P.C., Staten Island, N.Y. (John J. Tracy of counsel, Staten Island), for appellant. Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia, Albertson and Glenn A. Kaminska of counsel, New York), for respondent.
Tracy, Stilwell & Parrinello, P.C., Staten Island, N.Y. (John J. Tracy of counsel, Staten Island), for appellant.
Ahmuty, Demers & McManus, Albertson, N.Y. (Nicholas M. Cardascia, Albertson and Glenn A. Kaminska of counsel, New York), for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER ORDERED that the judgment is affirmed, with costs.
On March 25, 2010, C.B. (hereinafter the plaintiff) allegedly was injured when she slipped and fell while participating in a dance during an after-school cultural fair held in the cafeteria of her high school, located within the Valley Stream Central High School District (hereinafter the defendant). In June 2011, the plaintiff, by her father, commenced this action against the defendant. A trial on the issue of liability was conducted, and the jury returned a verdict in favor of the defendant, finding that it was not negligent. The plaintiff appeals from the resulting judgment.
Contrary to the plaintiff's contention, the Supreme Court's instruction to the jury as to the duty owed by the defendant was legally correct (see Benitez v. New York City Bd. of Educ. , 73 N.Y.2d 650, 656, 543 N.Y.S.2d 29, 541 N.E.2d 29 ). Additionally, the plaintiff was not entitled to a circumstantial evidence charge because she did not rely on circumstantial evidence alone to establish her case (see Del Rio v. Consolidated Edison, Inc. , 46 A.D.3d 741, 742, 847 N.Y.S.2d 481 ; Venditto v. Doody, 181 A.D.2d 729, 730, 581 N.Y.S.2d 82 ; Castagna v. John E. Flynn, M.D., P.C. , 127 A.D.2d 813, 814, 511 N.Y.S.2d 939 ). Finally, the plaintiff was not deprived of a fair trial by the conduct of the court in proceeding with the trial after asking the jurors if they had overheard a comment uttered by the court during an off-the-record bench conference and receiving assurances from the jurors that they had not heard the comment. In light of the assurances received from the jurors, the court's decision to proceed did not prejudice the plaintiff's case (see Xiao Yan Chen v. Maimonides Med. Ctr. , 160 A.D.3d 686, 687, 74 N.Y.S.3d 578 ; Coque v. Wildflower Estates Devs., Inc. , 58 A.D.3d 44, 56, 867 N.Y.S.2d 158 ).
DILLON, J.P., CHAMBERS, HINDS–RADIX and BRATHWAITE NELSON, JJ., concur.