Majority
p. 815[945 NE2d 1027, 920 NYS2d 776] William B. Clarke, Respondent, v Rafael Rodriguez, Appellant. Decided March 29, 2011
APPEARANCES OF COUNSEL
Law Offices of Thomas Weiss, P.C., Hempstead (Thomas Weiss of counsel), for appellant.
Ramo, Nashak, Brown & Garibaldi LLP, Glendale (Gregory J. Brown of counsel), for respondent.
OPINION OF THE COURT
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
p. 816
Penn Life Ins. Co. of N.Y., 84 NY2d 639 , 643-644 [1994]). Moreover, as there is support for the undisturbed finding of Supreme Court that defendant frustrated plaintiffs 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 NY., 28 NY2d 101 , 106 [1971]).
Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.
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.
Cases cited
- Schozer v. William Penn Life Insurance 84 NY2d 639 at 643-644 p. 816
- Kooleraire Service & Installation Corp. v. Board of Education 28 NY2d 101 at 106 p. 816