PAMALA GRADY PLAINTIFF APPELLANT v. AUBURN ENLARGED CITY SCHOOL DISTRICT AUBURN BOARD OF EDUCATION DEFENDANTS RESPONDENTS ET AL DEFENDANTS (2026)

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this personal injury action pursuant to the Child Victims Act (see CPLR 214-g) against, inter alia, defendants Auburn Enlarged City School District and Auburn Board of Education (collectively, District defendants), alleging that she was sexually abused over a period of several years in the late 1970s and early 1980s by the band director while she was a high school student. A trial was held, and the jury found that the District defendants were negligent in their supervision of plaintiff but that their negligence was not a substantial factor in causing her injuries, that the District defendants were not negligent in retaining the band director, and that the District defendants did not negligently fail to train their staff regarding child sexual abuse. Plaintiff appeals from a judgment that, inter alia, dismissed the complaint. We affirm.

We reject plaintiff's contention that Supreme Court abused its discretion in granting that part of the District defendants’ pretrial motion seeking to bifurcate the trial with respect to the issues of liability and damages. “As a general rule, issues of liability and damages in a negligence action are distinct and severable issues which should be tried separately” (Almuganahi v Gonzalez, 156 AD3d 1491, 1492 [4th Dept 2017] [internal quotation marks omitted]; see generally CPLR 603; 22 NYCRR 202.42 [a]). Contrary to plaintiff's contention, she failed to establish that bifurcation would not “assist in a clarification or simplification of issues and a fair and more expeditious resolution of the action” (22 NYCRR 202.42 [a]; see Almuganahi, 156 AD3d at 1492).

We also reject plaintiff's contention that the court abused its discretion in establishing the time limitations for the questioning of prospective jurors during voir dire. Contrary to plaintiff's contention, the court did not impose unduly restrictive time restraints under the circumstances of this case when it initially afforded each side 45 minutes of questioning and then granted plaintiff an additional 5 minutes during voir dire, and the record does not establish that plaintiff was prejudiced by the time limitations (see Horton v Associates in Obstetrics & Gynecology, 229 AD2d 734, 734-735 [3d Dept 1996]; cf. Zgrodek v McInerney, 61 AD3d 1106, 1108 [3d Dept 2009]; see generally 22 NYCRR 202.33 [d]).

Plaintiff failed to preserve for our review her further contention that the District defendants improperly used the testimony of their expert as a conduit for hearsay inasmuch as she did not object to the admission of the expert's testimony on that specific ground (see Matter of State of New York v Castleberry, 120 AD3d 1535, 1535 [4th Dept 2014], lv denied 25 NY3d 908 [2015]; Balsz v A & T Bus Co., 252 AD2d 458, 458 [1st Dept 1998]; see generally CPLR 4017). We decline to exercise our power to address that contention in the interest of justice (see generally Merrill v Albany Med. Ctr. Hosp., 71 NY2d 990, 991 [1988]).

Plaintiff also contends that she was denied a fair trial because the District defendants engaged in a course of conduct designed to focus on the alleged failures of plaintiff's mother to protect plaintiff from sexual abuse by the band director and thereby to divert the jury's attention from the relevant issues. To the extent that plaintiff preserved that contention for our review, we conclude that it lacks merit because the record establishes that the District defendants did not advance any argument at trial that plaintiff's mother was negligent in failing to detect or prevent the abuse (see Driscoll v Akron Fire Co., 251 AD2d 1042, 1043 [4th Dept 1998], lv denied 92 NY2d 819 [1999]). Instead, the arguments and evidence presented were designed to show that, given the significant and largely successful efforts of the band director and plaintiff to avoid detection by people such as school employees and plaintiff's mother, the District defendants were not negligent in their supervision of plaintiff inasmuch as they exercised the same degree of care and supervision as a reasonably prudent parent would exercise given the available information and they were not negligent in their retention of the band director inasmuch as there was insufficient information to establish that they knew or should have known of the band director's propensity to commit sexual abuse of a student (see generally R.L. v Holland Cent. Sch. Dist., 244 AD3d 1807, 1808-1810 [4th Dept 2025]; Driscoll, 251 AD2d at 1043). Thus, the challenged arguments and testimony “neither diverted the jurors’ attention from the issues nor deprived plaintiff of a fair trial” (Driscoll, 251 AD2d at 1043).

Plaintiff contends more specifically that the court erred in admitting in evidence portions of the deposition testimony of an assistant principal, who was not available to testify at trial (see CPLR 3117 [a] [3] [ii], [iii]), because the assistant principal's recollection of statements made by a different principal and plaintiff's mother at a meeting during the investigation of rumors that the band director had an inappropriate relationship with plaintiff constituted hearsay. We conclude that plaintiff's contention lacks merit inasmuch as the assistant principal's “deposition testimony concerning that conversation does not constitute inadmissible hearsay” (Howard v Codick, 55 AD3d 1376, 1377 [4th Dept 2008]). “Hearsay statements are out-of-court statements offered for the truth of the matter asserted” and, here, “the out[-]of[-]court statements were offered solely to establish that they were made, rather than for their truth” (id.; see CRC Ins. Servs., Inc. v Kullman, 244 AD3d 684, 685 [2d Dept 2025]; see generally Jerome Prince, Richardson on Evidence § 8-105 [Farrell 11th ed 1995]).

Contrary to plaintiff's related contention, the court properly overruled plaintiff's objection to the comments by the District defendants’ counsel on summation about that meeting inasmuch as those comments were within the bounds of permitted commentary on the evidence (see Clemons v Vanderpool, 289 AD2d 1078, 1079 [4th Dept 2001]). We note that, although no curative instruction was necessary, the court immediately instructed the jury that closing arguments by counsel were not evidence and that the jury was the sole judge of the facts, and plaintiff failed to preserve for our review her contention that the instruction was inadequate inasmuch as she failed to object thereto or request a further instruction (see Venancio v Clifton Wholesale Florist, 1 AD3d 505, 506 [2d Dept 2003]).

Plaintiff also contends that the court erred in refusing to include PJI 2:262 in its charge to the jury. We agree with the District defendants, however, that the record establishes that plaintiff's counsel affirmatively waived any objection to the court's refusal to provide that instruction to the jury (see Matter of New York City Asbestos Litig., 224 AD3d 597, 599 [1st Dept 2024], lv dismissed 42 NY3d 1030 [2024]). In any event, plaintiff's contention lacks merit inasmuch as PJI 2:262, which precludes the jury from reducing an award of damages to an infant plaintiff even if the jury finds that negligence on the part of the infant plaintiff's parent contributed to the infant plaintiff's injury, applies only if the jury first finds that the defendant breached a duty that was a proximate cause of the infant plaintiff's injury (see PJI 2:262; Vaughan v Saint Francis Hosp., 29 AD3d 1133, 1136 [3d Dept 2006]), and that is not the case here.

Even assuming, arguendo, that plaintiff preserved for our review her additional challenge to the court's instruction to the jury, we conclude that plaintiff's challenge lacks merit inasmuch as the court's charge and the verdict sheet properly instructed the jury on the necessary element of proximate cause (see PJI 2:70; see generally Maurer v Tops Mkts., LLC [appeal No. 3], 70 AD3d 1504, 1505-1506 [4th Dept 2010]).

Finally, to the extent that plaintiff contends that the verdict is inconsistent, we conclude that she did not preserve that contention for our review inasmuch as she failed to raise it before the jury was discharged (see Barry v Manglass, 55 NY2d 803, 806 [1981], rearg denied 55 NY2d 1039 [1982]; Alligood v Doe, 198 AD3d 1271, 1272 [4th Dept 2021]; Schreiber v University of Rochester Med. Ctr., 88 AD3d 1262, 1263 [4th Dept 2011]). In any event, that contention lacks merit. Under the facts of this case, “it was logically possible for the jury to find negligence without also finding proximate cause” (Held v Cheektowaga-Sloan Union Free Sch. Dist. [appeal No. 3], 240 AD3d 1369, 1371 [4th Dept 2025]). Here, the jury could have concluded that “the District [defendants’] negligence [in their supervision of plaintiff] was not a substantial factor in bringing about plaintiff's injuries and that the [band director] was the sole proximate cause of those injuries” (id.). “Where a verdict can be reconciled with a reasonable view of the evidence, the successful party is entitled to the presumption that the jury adopted that view,” and we conclude that the District defendants are entitled to that presumption (id.).

Entered: July 24, 2026

Ann Dillon Flynn

Clerk of the Court