        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

259
CA 15-01236
PRESENT: PERADOTTO, J.P., LINDLEY, DEJOSEPH, CURRAN, AND SCUDDER, JJ.


WILLIAM SPATH, INDIVIDUALLY AND AS PARENT AND
NATURAL GUARDIAN OF BENJAMIN W. SPATH, AN
INFANT, PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

STORYBOOK CHILD CARE, INC., DAVID L. CLEARY,
MISTY ZAMBUTO AND MICHAEL ROSS,
DEFENDANTS-APPELLANTS.


BURKE, SCOLAMIERO, MORTATI & HURD, LLP, ALBANY (LIA B. MITCHELL OF
COUNSEL), FOR DEFENDANTS-APPELLANTS.

BRENNA BOYCE PLLC, ROCHESTER (DONALD G. REHKOPF OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (William
P. Polito, J.), entered October 14, 2014. In its order, entered after
a bifurcated bench trial on liability, the court determined that
defendants Storybook Child Care, Inc. and Michael Ross were negligent
and that their negligence was a substantial factor in causing the
injuries sustained by plaintiff’s child.

     It is hereby ORDERED that said appeal by defendants David L.
Cleary and Misty Zambuto is unanimously dismissed and the order is
affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking to recover
damages for traumatic head injuries allegedly sustained by his son
while he was at a daycare center operated by defendant Storybook Child
Care, Inc. (Storybook). Defendants appeal from an order in which
Supreme Court found, following a bifurcated bench trial on liability,
that Storybook and defendant Michael Ross, a Storybook employee and
the child’s primary caregiver while at the daycare center, were
negligent, and that their negligence was a substantial factor in
causing the child’s injuries. We note at the outset that the appeal
insofar as taken by defendants David L. Cleary and Misty Zambuto must
be dismissed because they are not aggrieved by the order (see CPLR
5511). We affirm the order.

     Plaintiff did not present any eyewitness to the child being
injured, and the medical testimony presented at trial did not
establish the precise timing or mechanism of injury. Plaintiff
presented testimony from the child’s mother that the child’s head was
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                                                         CA 15-01236

fine before she left the child in the care of Storybook and Ross
(defendants) and that, upon returning to the daycare center at the end
of the day, she observed that the child was red, his head was wet, and
Ross was acting “nervous or weird.” Defendants presented testimony
that no one witnessed any injury to the child and that he may have
injured himself at home that morning, prior to being placed in
defendants’ care.

     We reject defendants’ contention that the court’s determination
of liability is against the weight of the evidence. Where, as here,
direct evidence of a defendant’s negligence is not available, a
plaintiff may nevertheless establish defendant’s negligence through
circumstantial evidence (see Gayle v City of New York, 92 NY2d 936,
937; see also Tenkate v Moore, 274 AD2d 934, 936). In such instances,
the plaintiff “need not positively exclude every other possible cause
of” the alleged injury (Gayle, 92 NY2d at 937). Rather, “[a] prima
facie case of negligence based on circumstantial evidence is
established [where, as here,] plaintiff’s evidence proves that it is
‘more likely’ or ‘more reasonable’ that the injury was caused by
defendant’s negligence than by some other agency” (New York Tel. Co. v
Harrison & Burrowes Bridge Contrs., 3 AD3d 606, 608; see generally
Tenkate, 274 AD2d at 936). Further, the decision of the court
following a bench trial should not be disturbed on appeal “unless it
is obvious that the court’s conclusions could not be reached under any
fair interpretation of the evidence, especially [where, as here,] the
findings of fact rest in large measure on considerations relating to
the credibility of witnesses” (Thoreson v Penthouse Intl., 80 NY2d
490, 495, rearg denied 81 NY2d 835 [internal quotation marks omitted];
see Livingston v State of New York, 129 AD3d 1660, 1660, lv denied 26
NY3d 903).

      Defendants further contend that the court erred in admitting
evidence that Ross had been involved in two other incidents involving
children under his care at the daycare center, on the ground that it
was inadmissible evidence of a prior bad act. We reject that
contention, inasmuch as the evidence was relevant to plaintiff’s
negligent supervision and negligent retention causes of action (see
DeJesus v DeJesus, 132 AD3d 721, 722). Defendants’ contention that
the court erred in excluding written statements made by employees of
the daycare center in connection with the internal investigation of
the incident at issue also is without merit, inasmuch as defendants
failed to establish that such statements were made in the regular
course of the daycare center’s business (see CPLR 4518 [a]).

     Defendants failed to preserve for our review their contention
that the court erred in admitting the opinions and conclusions
contained in the police report because they failed to object at trial
to the testimony of the investigator who authored the police report
(see Matter of State of New York v Wilkes [appeal No. 2], 77 AD3d
1451, 1452). We note in any event that defendants waived their
contention by stipulating to the admission of the redacted police
report in evidence at trial (see generally Wittman v Wittman, 302 AD2d
914, 914). Finally, although defendants contend that the court abused
its discretion in drawing an adverse inference against them based on
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                                                         CA 15-01236

the failure of defendant Misty Zambuto to testify, we note that the
court’s decision does not indicate that the court in fact drew any
such inference.




Entered:   March 25, 2016                       Frances E. Cafarell
                                                Clerk of the Court
