Smith v. Lloyd

249 A.D.2d 940, 672 N.Y.S.2d 181, 1998 N.Y. App. Div. LEXIS 5038

Opinion

—Judgment unanimously affirmed without costs. Memorandum: Plaintiff was injured when she fell down a staircase in a house owned by defendant in which plaintiff was living. Following trial, the jury returned a verdict in favor of defendant. Plaintiff contends that Supreme Court erred in denying her motion for a mistrial based on the response of defendant’s attorney to a comment by a prospective juror during voir dire. Because voir dire was not recorded and the comment of the prospective juror and the attorney’s response thereto are in dispute, we are unable to review the issue (see, People v Cotton, 237 AD2d 943, lv denied 90 NY2d 857; see also, Chanatry v Williams, 57 AD2d 730). We further reject the contention that the verdict is against the weight of the evidence (see generally, Nicastro v Park, 113 AD2d 129, 132-133). Defendant presented evidence that plaintiff was confused and opened the basement door instead of her bedroom door. Thus, the jury was entitled to conclude that, even if the staircase

lights and handrail were deficient, as testified to by plaintiffs expert, that deficiency was not a proximate cause of the accident. (Appeal from Judgment of Supreme Court, Monroe County, Siragusa, J. — Negligence.) Present — Denman, P. J., Green, Wisner, Pigott, Jr., and Fallon, JJ.