Madison-68 Corp. v Malpass, 2009 NY Slip Op 06154 (App. Div., 1st, 2009)
Plaintiff's objection, made under the best evidence rule, to the
admission of the lease rider was properly overruled because it had
offered into evidence a copy of the same document. The J.H.O. at times
cut off questioning, but did so in an evenhanded manner to expedite the
trial, never amounting to prejudicial error (see Lewis v Port Auth. of N.Y. & N.J., 8 AD3d 205,
206 [2004]). Nor was the judgment against the weight of the evidence,
since the case essentially turned on the parties' competing oral
testimony. The issue of the prevailing party notwithstanding, it was
error for the J.H.O. to determine that defendants were entitled to an
award of attorneys' fees. In Oxford Towers Co., LLC v Wagner (58 AD3d 422 [2009]), this Court held that an identical lease provision was not covered by Real Property Law § 234.
The bold is mine.
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