Opinion
No. 121 SSM 5.
Decided March 29, 2011.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered May 4, 2010. The Appellate Division affirmed so much of a judgment of the Supreme Court, Kings County (David I. Schmidt, J.), entered after a nonjury trial, and upon a decision of that Court (Richard N. Allman, Special Ref), as was in favor of plaintiff and against defendant, directing specific performance of a contract for the sale of real property.
Clarke v Rodriguez, 73 AD3d 677, affirmed.
Law Offices of Thomas Weiss, EC, Hempstead ( Thomas Weiss of counsel), for appellant.
Ramo, Nashak, Brown Garibaldi LLP, Glendale ( Gregory J. Brown of counsel), for respondent.
Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
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 Penn Life Ins. Co. of N.Y., 84 NY2d 639, 643-644). 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 N.Y., 28 NY2d 101, 106).
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.