SMITH v. UNITED SKATES OF AMERICA INC (2000)

In a negligence action to recover damages for personal injuries, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Palmieri, J.), dated October 13, 1999, which, upon a jury verdict in favor of the defendant and against her, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

 In Edmonson v. Leesville Concrete Co., 500 U.S. 614, 111 S.Ct. 2077, 114 L.Ed.2d 660, the United States Supreme Court extended the anti-discriminatory rule of Batson v. Kentucky, 476 U.S. 79, 106 S.Ct. 1712, 90 L.Ed.2d 69, to civil cases (see, Riggio v. New Creation Fellowship of Buffalo, 249 A.D.2d 942, 671 N.Y.S.2d 397;  Superior Sales & Salvage v. Time Release Sciences, 227 A.D.2d 987, 643 N.Y.S.2d 291;  Ancrum v. Eisenberg, 206 A.D.2d 324, 615 N.Y.S.2d 14;  Siriano v. Beth Israel Hosp. Cent., 161 Misc.2d 512, 614 N.Y.S.2d 700;  O'Neill v. City of New York, 160 Misc.2d 1086, 612 N.Y.S.2d 303).

 Contrary to the plaintiff's contentions, she did not prove, prima facie, that the defendant used its peremptory challenges in a racially-discriminatory manner.   As this court has observed, “[i]t is incumbent upon the party mounting a Batson challenge to ‘articulate and develop all of the grounds supporting the claim, both factual and legal, during the colloquy in which the objection is raised and discussed’ ” (People v. Williams, 253 A.D.2d 901, 902, 681 N.Y.S.2d 542, quoting People v. Childress, 81 N.Y.2d 263, 268, 598 N.Y.S.2d 146, 614 N.E.2d 709).   While “a disproportionate number of strikes challenging members of a particular racial group * * * may be sufficient to create an inference establishing a prima facie claim * * * [g]enerally, however, percentages will not be conclusive of the issue” (People v. Bolling, 79 N.Y.2d 317, 324, 582 N.Y.S.2d 950, 591 N.E.2d 1136).   A bare assertion that there has been a disproportionate number of strikes against a minority group will generally not suffice to establish a prima facie case (see, People v. Williams, supra;  People v. Gray, 243 A.D.2d 648, 665 N.Y.S.2d 520).

In the companion case to People v. Bolling, supra, People v. Steele, 79 N.Y.2d 317, 582 N.Y.S.2d 950, 591 N.E.2d 1136, the prosecutor's use of three of four peremptory challenges against black prospective jurors was held to be insufficient, standing alone, to establish a prima facie case (see, People v. Steele, supra, at 325, 582 N.Y.S.2d 950, 591 N.E.2d 1136).   Here, the defense used two of three available peremptory challenges to strike two of four black prospective jurors.   Standing alone, as no other persuasive direct or circumstantial evidence was adduced, the plaintiff failed to establish a prima facie case of discrimination.

The plaintiff's remaining contentions are without merit.

MEMORANDUM BY THE COURT.