SMITH v. LLOYD (1998)

 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 A.D.2d 943, 656 N.Y.S.2d 982, lv. denied 90 N.Y.2d 857, 661 N.Y.S.2d 183, 683 N.E.2d 1057;  see also, Chanatry v. Williams, 57 A.D.2d 730, 395 N.Y.S.2d 564).   We further reject the contention that the verdict is against the weight of the evidence (see generally, Nicastro v. Park, 113 A.D.2d 129, 132-133, 495 N.Y.S.2d 184).  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 plaintiff's expert, that deficiency was not a proximate cause of the accident.

Judgment unanimously affirmed without costs.

MEMORANDUM: