PESQUERA v. A & E Supermarket Group, Inc., Defendant. (2024)

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

Josefina PESQUERA, Plaintiff–Respondent, v. 1968 2ND AVENUE REALTY LLC, et al., Defendants–Appellants, A & E Supermarket Group, Inc., Defendant.

1606

Decided: February 08, 2024

Manzanet–Daniels, J.P., Kern, Friedman, O'Neill Levy, Michael, JJ.

Schiavetti, Corgan, DiEdwards, Weinberg & Nicholson, LLP, White Plains (Samantha E. Quinn of counsel), for appellants. Raskin & Kremins, LLP, New York (Michael F. Kremins of counsel), for respondent.

Order, Supreme Court, Bronx County (Elizabeth A. Taylor, J.), entered on or about March 31, 2023, which denied defendants 1968 2nd Avenue Realty Corp., i/s/h/a 1968 2nd Avenue Realty LLC and Hermana Mirabal, Inc., d/b/a Cherry Valley Marketplace's motion for summary judgment dismissing the complaint as against them, unanimously affirmed, without costs.

In support of the motion, defendants submitted video surveillance footage which purportedly supported their position that they neither created nor had notice of the allegedly wet floor that caused plaintiff's fall. The court providently exercised its discretion in finding that defendants failed to lay the proper foundation for the authentication of video evidence (see Zegarelli v. Hughes, 3 NY3d 64, 69 [2004]).

Consequently, defendants failed to establish prima facie entitlement to summary judgment by submitting admissible evidence that it neither created nor had notice of the alleged wet floor that caused plaintiff to slip and fall (Hamilton v. 3339 Park Dev. LLC, 158 AD3d 440, 441 [1st Dept 2018]).

We have considered defendants’ remaining arguments and find them unavailing.

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