New York Court of Appeals, 2011

Clarke v. Rodriguez

New York Court of Appeals · Decided March 29, 2011

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

Cases that cite this one

1 later published case cites this decision.

Blue Dog at 399 Inc. v. BP 399 Park Avenue LLC (In re Blue Dog at 399 Inc.) (United States Bankruptcy Court, S.D. New York 2015)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

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 *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.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.