Clarke v. Rodriguez (Motion for leave to appeal granted on Nov. 23, 2010)
73 A.D.3d 677 (2d Dep’t 2010)
Trial attorneys will want to follow this appeal concerning a point of a little-discussed exception to the best evidence rule. The appeal concerns the admission of secondary evidence. A proponent of an written instrument who is unable to produce the paper because it is under the control of the opponent may produce secondary evidence of what is contained in the original instrument.
The defendant appealed a Supreme Court judgment that, after a nonjury trial, was in favor of the plaintiff and against him directing specific performance for the sale of real property. Supreme Court allowed the plaintiff to submit secondary evidence of the contents of the original contract of sale. The Second Department concluded that the plaintiff sufficiently explained the unavailability of the primary evidence -- i.e., the contract of sale for the real property. The plaintiff established that the defendant’s former attorney, who did not testify at the trial, possessed the original contract of sale.
The Court will revisit its holding in Schozer v. William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639 (1994).