| Richardson v City of New York |
| 2013 NY Slip Op 05810 [109 AD3d 808] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Dion Richardson, an Infant, by His Mother and NaturalGuardian, Elaine Richardson, et al., Respondents, v City of New York et al.,Appellants. |
—[*1] Burns & Harris, New York, N.Y. (Seth A. Harris, Alison R. Keenan, Judith F.Stempler, and Christopher J. Donadio of counsel), for respondents.
In an action to recover damages for personal injuries, etc., the defendants appealfrom an order of the Supreme Court, Kings County (Baynes, J.), dated June 7, 2012,which, upon a jury verdict in favor of the defendants and against the plaintiffs on theissue of liability, in effect, granted the plaintiffs' application for a mistrial and directed anew trial on the issues of liability and damages.
Ordered that on the Court's own motion, the notice of appeal is treated as anapplication for leave to appeal, and leave to appeal is granted (see CPLR 5701[c]); and it is further,
Ordered that the order is reversed, on the law, with costs, the plaintiffs' applicationfor a mistrial is denied, and the jury verdict is reinstated.
On February 25, 2010, the infant plaintiff was an eighth grade student at a New YorkCity public school. While playing basketball during his first-period gym class, the infantplaintiff fell, allegedly due to a chip or hole in the floor of the gymnasium and a wetcondition, and sustained injuries. The infant plaintiff, by his mother, and his mother,individually, commenced this action against the City of New York and the New YorkCity Department of Education.
At trial, the Supreme Court sustained an objection and issued a curative instruction inresponse to comments made by defense counsel on summation regarding the likelihoodof becoming injured while playing basketball, on the ground that the doctrine of primaryassumption of the risk did not apply to the facts of this case. The jury returned a verdictin favor of the defendants and against the plaintiffs on the issue of liability. The plaintiffsthen made an application for a mistrial based on the summation comments, and the court,in effect, granted the application.
The Supreme Court erred in, in effect, granting the plaintiffs' application for amistrial since the court had previously properly sustained objections to the subjectsummation comments, openly admonished counsel, and provided curative instructions,thereby correcting any possible prejudice resulting from the subject summationcomments (see Fekry v NewYork City Tr. Auth., 75 AD3d 616, 617 [2010]; Hammond v Welsh, 29 AD3d518, 519 [2006]).[*2]
In light of our determination, we need not reachthe defendants' remaining contentions. Rivera, J.P., Skelos, Leventhal and Lott, JJ.,concur.