| Shanmugam v SCI Eng'g, P.C. |
| 2014 NY Slip Op 07749 [122 AD3d 437] |
| November 13, 2014 |
| Appellate Division, First Department |
[*1]
| Chellappa Shanmugam, Respondent, v SCIEngineering, P.C., et al., Defendants, and Shahid Iqbal,Appellant. |
Ralph A. Hummel, Woodbury, for appellant.
McLaughlin & Stern, LLP, New York (Jonathan R. Jeremias of counsel), forrespondent.
Judgment, Supreme Court, New York County (Shirley Werner Kornreich, J.),entered October 23, 2013, after a jury trial, in favor of plaintiff, unanimously affirmed,with costs.
The court properly precluded defendant Shahid Iqbal (defendant) from presentingtestimony concerning the value of defendant company's carry-forward contracts,accounts receivable, and monthly billings, since the best evidence rule requiresproduction of those documents themselves, and since defendant did not proffer anadequate explanation for his failure to produce the documents (see Schozer v WilliamPenn Life Ins. Co. of N.Y., 84 NY2d 639, 643-644 [1994]). Because testimony onthe value of the assets at issue would be based on the contents of the unproduceddocuments, any such testimony would also be inadmissible hearsay (see SohoGeneration of N.Y. v Tri-City Ins. Brokers, 256 AD2d 229, 232 [1st Dept 1998]).Similarly, the court properly precluded any testimony concerning client dissatisfactionwith defendant company, as such testimony would be based on the client's out-of-courtstatements and would constitute inadmissible hearsay (see People v Brensic, 70NY2d 9, 14 [1987]). The prelitigation letter by defendant to plaintiff explaining hisrefusal to pay on the notes at issue was also properly precluded as inadmissible hearsay(see id.). Defendant's alleged availability to testify at trial about the contents ofthe letter does not, alone, render the letter admissible (see Nucci v Proper, 95NY2d 597, 602-603 [2001]). Lastly, the court properly precluded defendant's summaryof customer revenues for 2012; even if relevant, the summary is inadmissible under thebest evidence rule, as it is based on defendant company's books and records, whichdefendant, without explanation, failed to produce during discovery (Schozer, 84NY2d at 643-644; see also National States Elec. Corp. v LFO Constr. Corp., 203AD2d 49, 50 [1st Dept 1994]). Concur—Gonzalez, P.J., Tom, Renwick andGische, JJ.