Clarke v. Rodriguez

New York Court of Appeals

Clarke v. Rodriguez

945 N.E.2d 1027, 16 N.Y.3d 815

CourtNew York Court of Appeals

DecidedMarch 29, 2011

StatusPublished

Cited by2 cases

This text of 945 N.E.2d 1027 (Clarke v. Rodriguez) is published on Counsel Stack Legal Research, covering New York Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Clarke v. Rodriguez, 945 N.E.2d 1027, 16 N.Y.3d 815 (N.Y. 2011).

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Opinion

OPINION OF THE COURT

Memorandum.

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 [816]*816Penn 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.

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OPINION OF THE COURT

Memorandum.

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 [816]*816Penn 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.

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945 N.E.2d 1027, 16 N.Y.3d 815, Counsel Stack Legal Research, https://law.counselstack.com/opinion/clarke-v-rodriguez-ny-2011.

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