| Stathis v Estate of Karas |
| 2015 NY Slip Op 06330 [130 AD3d 1008] |
| July 29, 2015 |
| Appellate Division, Second Department |
[*1]
| Sam Stathis, Respondent-Appellant, v Estate ofDonald Karas, Deceased, by Nancy Bloom and Another, as Executors, et al.,Appellants-Respondents. (And a Third-Party Action.) |
McCabe & Mack LLP, Poughkeepsie, N.Y. (Richard R. DuVall of counsel), forappellants-respondents.
Catania, Mahon, Milligram & Rider, PLLC, Newburgh, N.Y. (Richard M.Mahon II of counsel), for respondent-appellant.
In an action, inter alia, to recover damages for breach of contract and conversion, thedefendants appeal from a judgment of the Supreme Court, Orange County (Onofry, J.),dated November 13, 2012, which, upon a jury verdict, and upon an order of the samecourt dated July 23, 2012, granting the defendants' motion pursuant to CPLR 4404 (a) toset aside the jury verdict to the extent of reducing the amount of damages awarded on thecause of action to recover damages for conversion from the principal sum of $602,500 tothe principal sum of $50,000, is in favor of the plaintiff and against the defendants Estateof Donald Karas, by and through its executors Nancy Bloom and Charles Karas, andMarital Trust Under the Will of Donald Karas, by and through its Trustees Nancy Bloomand Charles Karas, in the principal sum of $835,000, and the plaintiff cross-appeals, aslimited by his brief, from stated portions of the same judgment.
Ordered that the appeal by the defendants Nancy Bloom, individually, Charles Karas,individually, Natalie Karas, individually, and as beneficiary of Marital Trust Under theWill of Donald Karas, and Hope Assets, LLC, is dismissed, as those defendants are notaggrieved by the judgment appealed from (see CPLR 5501); and it is further,
Ordered that the judgment is reversed insofar as appealed from by the defendantsEstate of Donald Karas, by and through its executors Nancy Bloom and Charles Karas,and Marital Trust Under the Will of Donald Karas, by and through its Trustees NancyBloom and Charles Karas, on the law, the order dated July 23, 2012, is vacated, and thematter is remitted to the Supreme Court, Orange County, for a new trial in accordanceherewith; and it is further,
Ordered that the cross appeal is dismissed as academic in light of our determinationof the appeal by the defendants Estate of Donald Karas, by and through its executorsNancy Bloom and Charles Karas, and Marital Trust Under the Will of Donald Karas, byand through its Trustees Nancy Bloom and Charles Karas; and it is further,
Ordered that one bill of costs is awarded to the defendants Estate of Donald Karas,by and through its executors Nancy Bloom and Charles Karas, and Marital Trust Underthe Will of [*2]Donald Karas, by and through its TrusteesNancy Bloom and Charles Karas, payable by the plaintiff.
The plaintiff commenced this action to enforce his alleged rights arising from awritten agreement (hereinafter the joint development agreement). Pursuant to thisagreement, the plaintiff and Donald Karas (hereinafter the decedent) agreed and boundthemselves to develop certain real property owned by the decedent, and the decedent wasto convey his interest in the property to the plaintiff, or to entities formed by the plaintiffand the decedent, of which the plaintiff and decedent were to be equal joint owners. Attrial, the Supreme Court permitted the plaintiff to enter into evidence a copy of the jointdevelopment agreement, rather than the original document. The jury returned a verdict infavor of the plaintiff, and judgment was entered in favor of the plaintiff and against thedefendants Estate of Donald Karas, by and through its executors Nancy Bloom andCharles Karas, and Marital Trust Under the Will of Donald Karas, by and through itsTrustees Nancy Bloom and Charles Karas, in the principal sum of $835,000.
The Supreme Court erred in permitting the plaintiff to enter into evidence a copy ofthe joint development agreement. The best evidence rule requires the production of anoriginal writing where its contents are in dispute and are sought to be proven (seeSchozer v William Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643 [1994]; Kliamovich v Kliamovich, 85AD3d 867, 869 [2011]). The rule "serves mainly to protect against fraud, perjuryand inaccuracies . . . which derive from faulty memory"(Schozer vWilliam Penn Life Ins. Co. of N.Y., 84 NY2d at 644 [internal quotation marksomitted]). Under an exception to the rule, "secondary evidence of the contents of anunproduced original may be admitted upon threshold factual findings by the trial courtthat the proponent of the substitute has sufficiently explained the unavailability of theprimary evidence and has not procured its loss or destruction in bad faith" (id.[citations omitted]). The proponent of the secondary evidence "has the heavy burden ofestablishing, preliminarily to the court's satisfaction, that it is a reliable and accurateportrayal of the original. Thus, as a threshold matter, the trial court must be satisfied thatthe proffered evidence is authentic and correctly reflects the contents of the originalbefore ruling on its admissibility" (id. at 645 [internal quotation marksomitted]).
Here, the plaintiff failed to adequately explain the unavailability of the primaryevidence, i.e., the original executed joint development agreement (see Schozer vWilliam Penn Life Ins. Co. of N.Y., 84 NY2d at 644; Matter of Neenan, 35 AD3d475, 476-477 [2006]). While the court considered the deposition testimony of JerryJacobowitz, an attorney who had represented the decedent, that he had seen a "cleaner"copy of the original than that which was admitted at trial, and that the "cleaner" copy wasprovided either by the defendant Nancy Bloom or the decedent's brother, this testimonydid not establish that the original was in the possession of the defendants. Moreover, theplaintiff did not establish that the original was kept in the corporate office or that he hadconducted a diligent search in that location prior to his being locked out of the office bythe defendants more than two months after the decedent's death. While the plaintiffaverred that the original joint development agreement was placed in the corporate bookat the time of its execution in 1997, he offered no evidence to establish that the originalwas in the corporate book or office at the time of the decedent's death in 2005.
Further, even if the plaintiff met his threshold burden of explaining the unavailabilityof the original joint development agreement, the Supreme Court erred in finding that theplaintiff elicited sufficient proof to establish that the copy was a reliable and accurateportrayal of the original. The plaintiff's deposition testimony that the copy was an exactcopy of the original joint development agreement could not be offered at trial, as it wasprecluded by the application of the Dead Man's Statute (see CPLR 4519). Otherevidence submitted by the plaintiff, including Jacobowitz's deposition testimony, failedto establish that the copy proffered by the plaintiff was a reliable and accurate portrayalof the original joint development agreement.
The issue of whether the plaintiff and the decedent entered into the subject jointdevelopment agreement was vital to the plaintiff's proof of his case, as it was to thedefense, and the admission into evidence of this agreement undoubtedly had a substantialinfluence in bringing about the verdict (see CPLR 2002; Nelson v Friends of AssociatedBeth Rivka Sch. for Girls, 119 AD3d 536, 537 [2014]). Accordingly, theSupreme Court's error was not harmless. We thus remit the matter to [*3]the Supreme Court, Orange County, for a new trial.
The parties' remaining contentions either are without merit or need not be reached inlight of our determination. Balkin, J.P., Dickerson, Sgroi and Cohen, JJ., concur.