SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1023 

CAF 14-01469 

PRESENT: CENTRA, J.P., PERADOTTO, CARNI, WHALEN, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF KEVIN BLAIR, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

CRYSTAL DIGREGORIO, RESPONDENT-RESPONDENT. 

 

FRANK H. HISCOCK LEGAL AID SOCIETY, SYRACUSE (PIOTR BANASIAK OF

COUNSEL), FOR PETITIONER-APPELLANT. 

KELLY M. CORBETT, FAYETTEVILLE, FOR RESPONDENT-RESPONDENT. 

 

Appeal from an order of the Family Court, Onondaga County

(Salvatore Pavone, R.), entered July 24, 2014 in a proceeding pursuant

to Family Court Act article 6. The order, among other things, awarded

respondent sole custody of the subject child. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Petitioner father appeals from an order that, inter

alia, awarded sole custody of the subject child to respondent mother.

We affirm. We agree with the father that Family Court erred in not

admitting in evidence a video depicting the child in a vehicle with

the mother on the ground that only the creator of that video could lay

a proper foundation for its admission in evidence. During her

testimony, the mother denied recording the video and testified that

her older son recorded it. The father sought to introduce the video,

which was sent by the mother to the father’s cell phone, to show that

the mother was engaged in distracted driving by taking a video of the

child while she was driving the vehicle. The father also sought to

introduce that video to show that the mother was not a credible

witness because the video supported the father’s assertion that the

mother recorded the video, not her older son. A video may be

authenticated by a person other than the creator of the video where

“the testimony of a witness to the recorded events . . .

[demonstrates] that the videotape accurately represents the subject

matter depicted” (People v Patterson, 93 NY2d 80, 84; see Zegarelli v

Hughes, 3 NY3d 64, 69; Read v Ellenville Natl. Bank, 20 AD3d 408,

409), and thus the court erred in not admitting the video in evidence

on the ground that the mother did not record it. We conclude,

however, that the error is harmless. Inasmuch as the father watched

the video and testified to its contents, we conclude that the

admission of the video would have been cumulative of the testimony
-2- 1023 

CAF 14-01469 

adduced at trial (see generally Hixson v Cotton-Hanlon, Inc., 60 AD3d

1297, 1298).

Contrary to the father’s further contention, the court properly

determined that it was in the best interests of the child to award

sole custody to the mother. The court’s custody determination

following a hearing is entitled to deference (see Eschbach v Eschbach,

56 NY2d 167, 173), “particularly in view of the hearing court’s

superior ability to evaluate the character and credibility of the

witnesses” (Matter of Thillman v Mayer, 85 AD3d 1624, 1625). Here,

the court’s written decision establishes that the court engaged in a 

“ ‘careful weighing of [the] appropriate factors’ ” (Matter of

Triplett v Scott, 94 AD3d 1421, 1422), and the court’s determination

has a sound and substantial basis in the record (see Matter of Misty

D.B. v David M.S., 38 AD3d 1317, 1317; Betro v Carbone, 5 AD3d 1110,

1110).

Entered: October 9, 2015 Frances E. Cafarell

Clerk of the Court