Clarke v Rodriguez, 2010 NY Slip Op 03861 (App. Div., 2nd, 2010)
The plaintiff submitted secondary evidence of the contents of the
original contract of sale in this case, which sufficiently explained
"the unavailability of the primary evidence" (Schozer v William Penn
Life Ins. Co. of N.Y., 84 NY2d 639, 644; see Lipschitz v Stein, 10 AD3d 634, 637). The
plaintiff established, by a preponderance of the evidence, that the
defendant's former attorney, who did not testify at the trial, was in
possession of the original contract of sale (see Glatter v Borten, 233
AD2d 166, 168; Dependable Lists v Malek, 98 AD2d 679, 680;
Prince, Richardson on Evidence §§ 10-209, 10-210 [Farrell 11th ed]).
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