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 The purported original guaranty was incomplete and was withdrawn as evidence: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
FAMILY COURT SHOULD NOT HAVE APPLIED THE DOCTRINE OF COLLATERAL ESTOPPEL TO DENY A PETITION TO VACATE AN ACKNOWLEDGMENT OF PATERNITY.
TAKING TIMELY STEPS TO PROCEED TO JUDGMENT AFTER DEFAULT IN FORECLOSURE ACTION SUFFICIENT TO AVOID DISMISSAL OF COMPLAINT AS ABANDONED.
Condition Which Resulted in Plaintiff’s Injury Was Not the Cause of the Injury
NEW YORK WOULD REMAIN “HOME STATE” FOR A CUSTODY MATTER IF FATHER WRONGFULLY PREVENTED CHILDREN FROM RETURNING TO NEW YORK FROM BANGLADESH IN THE SIX MONTHS BEFORE THE FILING OF THE PETITION.
Refusal to Allow Relative’s Testimony Did Not Deny Right to Present a Defense
THE PROOF REQUIRED FOR SUMMARY JUDGMENT, FOR BOTH PLAINTIFFS AND DEFENDANTS, IN FORECLOSURE ACTIONS, ON WHETHER THERE HAS BEEN COMPLIANCE WITH THE RPAPL 1304 NOTICE PROVISIONS, EXPLAINED; PRIOR DECISIONS HOLDING THAT A DEFENDANT’S DENIAL OF RECEIPT OF NOTICE WAS SUFFICIENT SHOULD NO LONGER BE FOLLOWED (SECOND DEPT).
Question of Fact Whether Hospital Had a Duty to Safeguard Plaintiff from Actions by Third Parties
ALTHOUGH PLAINTIFF’S EXPERT, A GENERAL SURGEON, PROVIDED AN OPINION IN THE AREA OF INTERNAL MEDICINE, THE EXPERT’S AFFIRMATION DEMONSTRATED THE EXPERT WAS QUALIFIED TO OFFER THE OPINION; DEFENDANT’S MOTION FOR SUMMARY JUDGMENT SHOULD NOT 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 © 2025 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...