You are here: / / PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE.
,

PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE.

The Second Department determined Supreme Court properly excluded a purported copy of a guaranty from evidence and properly dismissed the complaint which sought enforcement of the guaranty. The purported original guaranty was incomplete and was withdrawn as evidence:

Supreme Court properly determined that the proffered copy of the guaranty was inadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539(a). Under an exception to the best evidence rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith” … . Once the absence of an original document is excused, all competent secondary evidence is generally admissible to prove its contents … . However, the proponent of the secondary evidence has a “heavy burden of establishing, preliminarily to the court’s satisfaction, that it is a reliable and accurate portrayal of the original” … . “Thus, as a threshold matter, the trial court must be satisfied that the proffered evidence is authentic and correctly reflects the contents of the original’ before ruling on its admissibility” … .

Here, even if the plaintiff sufficiently explained the unavailability of the original guaranty … , it failed to meet its heavy burden of establishing that the proffered copy was a reliable and accurate portrayal of the original … . The plaintiff’s principal was not present when the original guaranty was executed, and thus could not testify as to whether the original guaranty was similarly missing a portion of paragraph 4, while Gluck testified that the guaranty she executed contained complete paragraphs. Further, the copy was not satisfactorily identified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR 4539(a) … . 76-82 St. Marks, LLC v Gluck, 2017 NY Slip Op 01329, 2nd Dept 2-22-17

 

CONTRACT LAW (PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)/GUARANTY (EVIDENCE, PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)/EVIDENCE (PROFFERED COPY OF A GUARANTY PROPERLY EXCLUDED FROM EVIDENCE)

You might also like
DEFAMATION ACTION AGAINST UNINCORPORATED ASSOCIATION SHOULD HAVE BEEN DISMISSED UNDER THE MARTIN RULE, DEFAMATION ACTION AGAINST INDIVIDUAL DEFENDANTS SHOULD NOT HAVE BEEN DISMISSED, BREACH OF CONTRACT ACTION AGAINST THE ASSOCIATION SHOULD NOT HAVE BEEN DISMISSED (SECOND DEPT).
COURT SHOULD NOT HAVE ORDERED THE PAYMENT OF ATTORNEY’S FEES FOR FRIVOLOUS CONDUCT WITHOUT ALLOWING THE AFFECTED PARTY TO BE HEARD (SECOND DEPT).
THE EVIDENCE OF “PHYSICAL INJURY” WAS LEGALLY INSUFFICIENT, ASSAULT 2ND CONVICTION REVERSED (SECOND DEPT).
THE PLAINTIFF’S EXPERT’S ASSERTION THAT THE FAILURE TO DIAGNOSE ATHEROSCLEROTIC CARDIOVASCULAR DISEASE PROXIMATELY CAUSED DECEDENT’S PREMATURE DEATH WAS SUFFICIENT TO RAISE A QUESTION OF FACT ON CAUSATION IN THIS MEDICAL MALPRACTICE ACTION (SECOND DEPT).
EXPLOSION BENEATH AN ABANDONED AND SEALED MANHOLE OWNED BY THE VILLAGE LIFTED UP PLAINTIFF’S CAR WHICH CAME DOWN ON THE OPPOSITE SIDE OF THE STREET, COMPLAINT DISMISSED BECAUSE THE VILLAGE DEMONSTRATED IT DID NOT HAVE WRITTEN NOTICE OF THE DEFECT (SECOND DEPT).
THE BANK FAILED TO SUBMIT THE BUSINESS RECORDS RELIED ON IN ITS AFFIDAVIT IN THIS FORECLOSURE ACTION RENDERING THE AFFIDAVIT INADMISSIBLE HEARSAY; SUPREME COURT’S DETERMINATION THE BANK HAD COMPLIED WITH THE NOTICE PROVISIONS OF RPAPL 1304 AND THE MORTGAGE WAS THE LAW OF THE CASE PRECLUDING RECONSIDERATION OF THE ISSUE PURSUANT TO DEFENDANTS’ CROSS MOTION (SECOND DEPT).
Claimant’s Motion to File a Late Notice of Claim Properly Denied—Application of Statutory Factors Explained
ABUTTING PROPERTY OWNER IS NOT RESPONSIBLE FOR TREE WELLS IN CITY SIDEWALKS; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT IN THIS SLIP AND FALL CASE SHOULD HAVE BEEN GRANTED (SECOND DEPT).

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy

EXCLUDING A REPRESENTATIVE OF THE DEFENDANT ELEVATOR COMPANY FROM THE COURTROOM... QUESTION OF FACT WHETHER LANDLORD’S AGENTS WERE AWARE OF THE DOG’S...