Testimony Regarding Documents Precluded by Best Evidence Rule

On November 13, 2014, the First Department issued a decision in Shanmugam v. SCI Engineering, P.C., 2014 NY Slip Op. 07749, affirming a trial court’s exclusion of evidence under the best evidence rule.

In Shanmugam, the trial court precluded the defendant “from presenting testimony concerning the value of defendant company’s carry-forward contracts, accounts receivable, and monthly billings,” because it had not produced the underlying documents. The First Department affirmed, explaining that the preclusion was proper because

the best evidence rule requires production of those documents themselves, and since defendant did not proffer an adequate explanation for his failure to produce the documents. Because testimony on the value of the assets at issue would be based on the contents of the unproduced documents, any such testimony would also be inadmissible hearsay. Similarly, the court properly precluded any testimony concerning client dissatisfaction with defendant company, as such testimony would be based on the client’s out-of-court statements and would constitute inadmissible hearsay. The prelitigation letter by defendant to plaintiff explaining his refusal to pay on the notes at issue was also properly precluded as inadmissible hearsay. Defendant’s alleged availability to testify at trial about the contents of the letter does not, alone, render the letter admissible. Lastly, the court properly precluded defendant’s summary of customer revenues for 2012; even if relevant, the summary is inadmissible under the best evidence rule, as it is based on defendant company’s books and records, which defendant, without explanation, failed to produce during discovery.

(Internal citations omitted).

Court Uses Doctrine of Falsus in Uno, Falsus in Omnibus to Find Whole of Witness’s Testimony Not Credible

On October 2, 2014, Justice Emerson of the Suffolk County Commercial Division issued a decision in Motherway v. Retail Unlimited Maintenance or Remodel, Inc., 2014 NY Slip Op. 32673(U), applying the principle of falsus in uno, falsus in omnibus to disregard the entirety of a witness’s testimony.

In Motherway, the plaintiff sought damages for the defendants’ alleged use of proprietary information. This post focuses on that part of the court’s decision after a bench trial that addressed its credibility findings. The court wrote:

In reaching its decision, the court has considered the record in its entirety. In addition, the court has assessed the credibility of each of the witnesses. In particular, the court has considered the testimony of both Mr. Motherway and Mr. Cartisano. The courts finds Mr. Motherway to be a credible witness and his version of key events to be believable. The court credits Mr. Motherway’s testimony and significant portions of the testimony of his employee witness. On the other hand, the court finds that Mr. Cartisano’s testimony conflicts in significant ways with the credible evidence produced by Mr. Motherway and that it is both unreliable and improbable. Applying the doctrine of falsus in uno, falsus in omnibus, which permits the fact finder to disregard in its entirety the testimony of a witness who has willfully given false testimony on a material matter (NY PJI 1:22), the court does not credit any of Mr. Cartisano’s testimony.

(Emphasis added). Ouch! If ever you have trouble getting your client simply to testify to the facts as they happened, show them this post.

Evidence Inadmissible Under Dead Man’s Statute Admissible In Opposition to Summary Judgment

On March 31, 2014, Justice Schmidt of the Kings County Commercial Division issued a decision in Peck v. Mitchell, 2014 NY Slip Op. 50715(U), applying the Dead Man’s Statute on a motion for summary judgment.

In Peck, the plaintiff asserted claims relating to ownership of her home. The defendant moved for summary judgment on the plaintiff’s claims. One argument raised by the defendant related to the admissibility of the plaintiff’s affidavit, which described an oral agreement between the plaintiff and her now-deceased son regarding ownership of her home. The court explained:

[T]he court rejects defendant’s assertion that the Dead Man’s Statute bars the plaintiff’s evidence regarding the alleged oral agreement. CPLR 4519 (the Dead Man’s Statute) bars testimony from a person interested in the event or a person from, through or under whom such person derives his or her interest or title with regard to any personal transaction or communication with the decedent. Generally, evidence that is inadmissible at trial under CPLR 4519 cannot be used to support a motion for summary judgment. However, statements of a decedent are not rendered inadmissible under the Deadman’s Statute’ (see CPLR 4519), when offered in opposition to a motion for summary judgment. Indeed, hearsay testimony which violates the Dead Man’s Statute (CPLR 4519) may be admitted for the purpose of opposing a motion for summary judgement. Nonetheless, evidence otherwise excludable at trial may not form the sole basis for a court’s determination, and standing alone, may be insufficient to defeat a motion for summary judgment.

Thus, the primary evidence presented in opposition to defendant’s motion (i.e., statements in the plaintiff’s affidavit referencing the alleged oral agreement) will be deemed admissible for purposes of defeating the summary judgment motion as long as there is some supportive admissible evidence.

(Internal quotations and citations omitted) emphasis added). The court went on to hold that other admissible was present and denied the plaintiff’s motion for summary judgment.

The Dead Man’s Statute does not frequently play a role in commercial litigation, but as this decision illustrates, it can have a significant impact and the rules for its application are not straightforward.