Opinion
July 12, 1996
Appeal from the Supreme Court, Monroe County, Stander, J.
Present — Denman, P.J., Pine, Callahan, Balio and Davis, JJ.
Order insofar as appealed from unanimously reversed on the law with costs and motion denied in part in accordance with the following Memorandum: Plaintiff commenced this action seeking damages for breach of an alleged written agreement to provide pension benefits. Defendants moved, inter alia, for an order declaring that, because the three original copies of the written agreement cannot be found and defendants do not admit the existence of such an agreement, the Statute of Frauds (General Obligations Law § 5-701 Gen. Oblig. [a] [1]) precludes plaintiff from proving the existence and terms of the agreement by secondary evidence. Supreme Court erred in granting that part of the motion.
A party may elicit parol evidence to prove the existence and terms of a written agreement, thereby satisfying the requirements of the Statute of Frauds, when the failure to produce the original is adequately explained. The parol evidence may consist of the admission of an adversary ( see, Lapidus v. New York City Ch. of N.Y. State Assn. for Retarded Children, 118 A.D.2d 122; Dependable Lists v. Malek, 98 A.D.2d 679, appeal dismissed 62 N.Y.2d 645) or the testimony of others who have first-hand knowledge of the existence of the writing and its terms ( see, Lynch v. Savarese, 217 A.D.2d 648; Webb Knapp v. United Cigar-Whelan Stores Corp., 276 App. Div. 583; Posner v Rosenbaum, 240 App. Div. 543; Matter of Bernard, 176 Misc. 132; C.I.F. Prods. v. Burlington Coat Factory Warehouse Corp., 881 F. Supp. 104; A.F.L. Falck v. Karay Co., 722 F. Supp. 12; contra, Matter of Talco Contrs. v. New York State Tax Commn., 140 A.D.2d 834 ). The deposition testimony and affidavit of Edwin Schulman, Esq., stating that he personally observed defendants' decedent sign three copies of the alleged agreement and setting forth the details of the agreement, are sufficient to raise factual issues concerning the existence and terms of the alleged agreement.