Thursday, March 2, 2017

An exception to the best evidence rule.

Practice point:  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 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. So, 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.

Case:  76-82 St. Marks, LLC v. Gluck, NY Slip Op 01329 (2d Dep't February 22, 2017)

Here is the decision.

Tomorrow's issue:  Guaranties on a note, and counterclaims.