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THE TRIAL COURT AS FACT-FINDER PROPERLY ADMITTED IN EVIDENCE A PHOTOCOPY OF THE LEASE AT THE HEART OF THE DISPUTE AS AN EXCEPTION TO THE BEST EVIDENCE RULE (FIRST DEPT).

The First Department determined a photocopy of a lease at the heart of the dispute was properly admitted in evidence pursuant to an exception to the best evidence rule:

The best evidence rule “requires the production of an original writing where its contents are in dispute and sought to be proven” … . However, under an exception to the rule, “secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that the proponent [] has sufficiently explained the unavailability of the [original]” and that the secondary evidence “is a reliable and accurate portrayal of the original” … . Once such threshold showings have been made, “final determination” of the weight to be given to the secondary evidence is “left to the trier of fact” … . …

… [T]he reliability of the photocopies turned on the court’s credibility determinations, which we find no reason to disturb. Defendants’ handwriting expert acknowledged that the images of the parents’ signatures on the photocopy of the lease were consistent with their known signatures and he found no evidence that the images of their signatures or the document itself was manipulated. Rather, he merely speculated that such a danger of manipulation always exists. Casanas v Carlei Group, LLC, 2021 NY Slip Op 06787, First Dept 12-2-21

 

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