REESE v. NEW YORK CITY BOARD OF EDUCATION

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

Sharese REESE, et al., Appellants, v. NEW YORK CITY BOARD OF EDUCATION, Respondent.

Decided: September 30, 2002

MYRIAM J. ALTMAN, J.P., ANITA R. FLORIO, CORNELIUS J. O'BRIEN, and HOWARD MILLER, JJ. Belovin & Franzblau (Marie R. Hodukavich, Peekskill, NY, of counsel), for appellants. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Stephen J. McGrath and Cheryl Payer of counsel), for respondent.

In an action to recover damages for personal injuries, etc., the plaintiffs appeal from a judgment of the Supreme Court, Kings County (Bernstein, J.), entered April 27, 2001, which, upon a jury verdict in favor of the defendant and against them on the issue of liability, in effect, dismissed the complaint.

ORDERED that the judgment is affirmed, with costs.

The plaintiffs commenced this action against the New York City Board of Education, alleging negligent supervision, after the 14-year-old plaintiff Sharese Reese injured her knee while practicing a dance routine for a talent show in her school auditorium.   The jury found that the defendant was negligent but that this negligence was not a substantial factor in causing the infant plaintiff's injury.

The plaintiffs contend that the verdict was internally inconsistent and therefore against the weight of the evidence.   The contention that the verdict was inconsistent is unpreserved for appellate review as the plaintiffs failed to object to the verdict on this ground before the jury was discharged (see Disla v. DHL Airways, 219 A.D.2d 612, 631 N.Y.S.2d 533;  Gross v. Fontano, 206 A.D.2d 505, 615 N.Y.S.2d 279).   In any event, we conclude that the verdict was not inconsistent and that it was based on a fair interpretation of the evidence (see Lewis v. Metroplex Long Is. Corp., 290 A.D.2d 421, 736 N.Y.S.2d 247;  Jennings v. DeFreitas, 283 A.D.2d 611, 725 N.Y.S.2d 232).   The issues were not “so inextricably interwoven as to make it logically impossible to find negligence without also finding proximate cause” (Rubin v. Pecoraro, 141 A.D.2d 525, 527, 529 N.Y.S.2d 142).

The trial court providently exercised its discretion in precluding the plaintiffs' expert from testifying as to whether a “spotter” was required as a safety precaution during the infant plaintiff's dance routine, as the expert failed to demonstrate that he possessed the requisite knowledge to render a reliable opinion on that issue (see Franklin v. Jaros, Baum & Bolles, 257 A.D.2d 600, 684 N.Y.S.2d 282).

The remaining issues raised by the plaintiffs are either unpreserved for appellate review or without merit (see Colon v. City of New York, 245 A.D.2d 258, 666 N.Y.S.2d 10;  Fricker v. New York City Off Track Betting Corp., 213 A.D.2d 590, 624 N.Y.S.2d 928, cert. denied 516 U.S. 1114, 116 S.Ct. 914, 133 L.Ed.2d 845).

In view of our determination, we do not reach the defendant's contention that the trial court erred in reserving decision on its motion for a directed verdict.

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