| 76-82 St. Marks, LLC v Gluck |
| 2017 NY Slip Op 01329 [147 AD3d 1011] |
| February 22, 2017 |
| Appellate Division, Second Department |
[*1](February 22, 2017)
| 76-82 St. Marks, LLC, Appellant, v Cindy Gluck,Respondent, et al., Defendant. |
Bedford Mantia, LLP, New York, NY (James Mantia of counsel), for appellant.
Stern & Stern, Brooklyn, NY (David Lyle Stern of counsel), for respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Kings County(Yvonne Lewis, J.), dated March 3, 2015. The order and judgment granted the motion of thedefendant Cindy Gluck pursuant to CPLR 4401 for judgment as a matter of law dismissing thecomplaint, made at the close of the plaintiff's case, and dismissed the complaint.
Ordered that the order and judgment is affirmed, with costs.
The plaintiff commenced this action to recover damages for breach of a personal guaranty ofa commercial lease. At trial, the plaintiff proffered a faxed copy of the guaranty agreementwhich, on its face, was an incomplete document, since only the last two lines of what shouldhave been paragraph 4 were included on the second page of the purported guaranty. The plaintiffattempted to have the copy admitted into evidence pursuant to a response to its notice to admit bythe defendant Cindy Gluck, in which she admitted that the exhibit was a true and complete copyof the guaranty agreement. However, the Supreme Court permitted Gluck to withdraw herresponse to the notice to admit. The court further denied admission of the copy of the guaranty.At the close of the plaintiff's case, Gluck moved pursuant to CPLR 4401 for judgment as a matterof law dismissing the complaint, arguing that the plaintiff failed to make a prima facie caseregarding the terms of the guaranty or its damages. The Supreme Court granted the motion andentered judgment against the plaintiff dismissing the complaint. The plaintiff appeals.
The Supreme Court providently exercised its discretion in permitting Gluck to withdraw heradmission that the copy of the guaranty was a true and complete copy of the guaranty agreement,since the admission was at the heart of the controversy and was contrary to Gluck's previouslysubmitted pleading (see CPLR 3123 [b]; Voigt v Savarino Constr. Corp., 94 AD3d 1574 [2012]; Riner vTexaco, Inc., 222 AD2d 571 [1995]). The plaintiff could not have reasonably believed thatthe authenticity and completeness of the copy of the guaranty, which was on its face missing aportion of paragraph 4, would not be in "substantial dispute at the trial" (CPLR 3123 [a]; see Nacherlilla v Prospect Park Alliance,Inc., 88 AD3d 770, 771 [2011]).
[*2] Moreover, the Supreme Court properly determined that the proffered copy of the guaranty wasinadmissible as secondary evidence of the terms of the guaranty or pursuant to CPLR 4539 (a).Under an exception to the best evidence rule, "secondary evidence of the contents of anunproduced original may be admitted upon threshold factual findings by the trial court that theproponent of the substitute has sufficiently explained the unavailability of the primary evidenceand has not procured its loss or destruction in bad faith" (Schozer v William Penn Life Ins.Co. of N.Y., 84 NY2d 639, 644 [1994] [citations omitted]; see Amica Mut. Ins. Co. v Kingston OilSupply Corp., 134 AD3d 750, 752 [2015]; Kliamovich v Kliamovich, 85 AD3d 867, 869 [2011]). Once theabsence of an original document is excused, all competent secondary evidence is generallyadmissible to prove its contents (see Schozer v William Penn Life Ins. Co. of N.Y., 84NY2d at 645). However, the proponent of the secondary evidence has a "heavy burden ofestablishing, preliminarily to the court's satisfaction, that it is a reliable and accurate portrayal ofthe original" (id.; see People v Joseph, 86 NY2d 565, 570 [1995]; Stathis v Estate of Karas, 130 AD3d1008, 1010 [2015]). "Thus, as a threshold matter, the trial court must be satisfied that theproffered evidence is authentic and 'correctly reflects the contents of the original' before ruling onits admissibility" (Schozer v William Penn Life Ins. Co. of N.Y., 84 NY2d at 645,quoting United States v Gerhart, 538 F2d 807, 809 [8th Cir 1976]; see Marion v CoonConstr. Co., 216 NY 178, 182 [1915]).
Here, even if the plaintiff sufficiently explained the unavailability of the original guaranty(see Glatter v Borten, 233 AD2d 166, 168 [1996]), it failed to meet its heavy burden ofestablishing that the proffered copy was a reliable and accurate portrayal of the original (seeStathis v Estate of Karas, 130 AD3d at 1010-1011; Bell Atl. Yellow Pages v Havana RioEnters., 184 Misc 2d 863, 867 [Civ Ct, NY County 2000]). The plaintiff's principal was notpresent when the original guaranty was executed, and thus could not testify as to whether theoriginal guaranty was similarly missing a portion of paragraph 4, while Gluck testified that theguaranty she executed contained complete paragraphs. Further, the copy was not satisfactorilyidentified as a copy of the guaranty so as to be admissible as a reproduction pursuant to CPLR4539 (a) (see People v Rosa, 156 AD2d 733, 734 [1989]; cf. Kaliontzakis v Papadakos, 69 AD3d803, 805 [2010]; see also Citibank[South Dakota] N.A. v Improta, 47 Misc 3d 1202[A], 2015 NY Slip Op 50361[U] [CivCt, Richmond County 2015]).
The plaintiff had the burden of proving the existence, terms, and validity of the guaranty(see Amica Mut. Ins. Co. v Kingston Oil Supply Corp., 134 AD3d at 752; Verizon N.Y., Inc. v Barlam Constr.Corp., 90 AD3d 1537 [2011]). Absent evidence of the complete terms of the guaranty,the plaintiff failed to establish its prima facie case (see Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053,1056 [2016]; Wong v Wong, 86AD3d 439 [2011]; Ellen v Lauer, 210 AD2d 87, 88 [1994]). Furthermore, Gluck iscorrect that the plaintiff failed to make a prima facie case regarding its damages, since thesummary chart of charges and payments made under the lease was prepared solely in anticipationof litigation and should not have been received in evidence, and the plaintiff failed to provide anyunderlying documents to establish the proper charges and payments made (see CPLR4518 [a]; National States Elec. Corp. v LFO Constr. Corp., 203 AD2d 49 [1994];Equidyne Corp. v Vogel, 160 AD2d 389 [1990]; Wilson v Bodian, 130 AD2d221, 229-230 [1987]).
Accordingly, the Supreme Court properly granted Gluck's motion for judgment as a matter oflaw dismissing the complaint (see CPLR 4401; Armonk Snack Mart, Inc. v Robert Porpora Realty Corp., 138 AD3d1045 [2016]).
In light of our determination, the plaintiff's contentions regarding Gluck's affirmativedefenses have been rendered academic (cf. Ross Realty v v & A Fabricators, Inc., 42 AD3d 246, 251[2007]). The plaintiff's remaining contentions are without merit. Chambers, J.P., Austin,Hinds-Radix and Barros, JJ., concur.