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Supreme Court, Appellate Division, Second Department, New York.

Hala FANEK, etc., et al., Appellants, v. CITY OF YONKERS, Respondent.

Decided: October 29, 2001

GABRIEL M. KRAUSMAN, J.P., SONDRA MILLER, ROBERT W. SCHMIDT and STEPHEN G. CRANE, JJ. Nader J. Sayegh, Scarsdale, N.Y. (Andrew Bersin of counsel), for appellants. William M. Mooney, Corporation Counsel, Yonkers, N.Y. (Kevin D. Crozier of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Westchester County (Cowhey, J.), entered March 14, 2000, which, upon a jury verdict on the issue of liability, and upon the denial of their motion pursuant to CPLR 4404 to set aside the verdict as against the weight of the evidence, is in favor of the defendant and against them dismissing the complaint.

ORDERED that the judgment is affirmed, with costs.

 The plaintiffs contend that the Supreme Court erred in refusing to permit them to use the deposition testimony of the defendant's employee to establish a foundation for the admission of a certain report as a business record.   Although we agree that the Supreme Court improvidently exercised its discretion in excluding the deposition testimony which was admissible pursuant to CPLR 3117(a)(2) (see, Lagana v. French, 145 A.D.2d 541, 536 N.Y.S.2d 95), the error was harmless in light of the jury's finding that the defendant was negligent in maintaining the outdoor stairs where the infant plaintiff fell, but that the defendant's negligence was not a proximate cause of the accident (see, Martin v. City of New York, 275 A.D.2d 351, 353, 712 N.Y.S.2d 169;  Sherwood v. State of New York, 238 A.D.2d 396, 657 N.Y.S.2d 336;  Di Santo v. County of Westchester, 210 A.D.2d 628, 629, 619 N.Y.S.2d 852).

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