Pesquera v. 1968 2nd Ave. Realty LLC

2024 NY Slip Op 00689

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: February 8, 2024
• Docket: Index No. 26812/19 Appeal No. 1606 Case No. 2023-02811
• Status: Published

Opinion

Pesquera v 1968 2nd Ave. Realty LLC (2024 NY Slip Op 00689)

Pesquera v 1968 2nd Ave. Realty LLC

2024 NY Slip Op 00689

Decided on February 08, 2024

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided and Entered: February 08, 2024
Before: Manzanet-Daniels, J.P., Kern, Friedman, O'Neill Levy, Michael, JJ.

Index No. 26812/19 Appeal No. 1606 Case No. 2023-02811

[*1]Josefina Pesquera, Plaintiff-Respondent,

v

1968 2nd Avenue Realty LLC, et al., Defendants-Appellants, A & E Supermarket Group, Inc., Defendant.

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.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: February 8, 2024