CLARKE v. RODRIGUEZ, 16 N.Y.3d 815 (2011)
Court: Court of Appeals of New York
Number: innyco20110329325
Visitors: 6
Filed: Mar. 29, 2011
Latest Update: Mar. 29, 2011
Summary: OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed, with costs. There is support in the record for the affirmed finding that the original contract was in the possession or control of defendant. Upon due notice, defendant failed to produce the original. Accordingly, plaintiff sufficiently explained the unavailability of the original contract and, therefore, a photocopy was admissible as secondary evidence of its contents ( see Schozer v William Penn Li
Summary: OPINION OF THE COURT MEMORANDUM. The order of the Appellate Division should be affirmed, with costs. There is support in the record for the affirmed finding that the original contract was in the possession or control of defendant. Upon due notice, defendant failed to produce the original. Accordingly, plaintiff sufficiently explained the unavailability of the original contract and, therefore, a photocopy was admissible as secondary evidence of its contents ( see Schozer v William Penn Lif..
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OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
There is support in the record for the affirmed finding that the original contract was in the possession or control of defendant. Upon due notice, defendant failed to produce the original. Accordingly, plaintiff sufficiently explained the unavailability of the original contract and, therefore, a photocopy was admissible as secondary evidence of its contents (see Schozer v William Penn Life Ins. Co. of N.Y., 84 N.Y.2d 639, 643-644 [1994]). Moreover, as there is support for the undisturbed finding of Supreme Court that defendant frustrated plaintiff's efforts to perform the contract, plaintiff is entitled to the remedy of specific performance (see Kooleraire Serv. & Installation Corp. v Board of Educ. of City of N.Y., 28 N.Y.2d 101, 106 [1971]).
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, with costs, in a memorandum.
Source: Leagle
