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Sibling Challenges 1990 Lease by Parents to Son and Daughter-In-Law

Was Photocopy of Lease Dispositive Evidence of Lost Original?

Many real property disputes arise out of written contracts, such as a lease. The “original” lease is the “best evidence” of the agreement. With the passage of time, the original document often cannot be found. As a recent case illustrates, the Court must then determine if what is propounded as a photocopy is an evidentiary substitute for the original.

Peter and Elizabeth Casanas, husband and wife, sued Carlei Group, LLC, alleging that in 1990, they executed a lease with the owner of the building located at 73 West 82nd Street, in New York County, for apartment 3C/3W, in which they resided. And sought a declaration of their rights as lessees.

At the time the lease was signed, the corporate entity that owned the building was owned by Peter’s parents.  Richard Casanas, Peter’s brother, was the sole member of Carlei Group, LLC, which now owned the building.  Carlei sued and challenged the validity of the lease. The original lease could not be found. Supreme Court admitted into evidence a photocopy of the purported lease and a photocopy of a purported memorandum of lease—which the Court found to be valid. Carlei  (i.e. Richard) appealed.

The best evidence rule requires the production of an original writing where its contents are in dispute and sought to be proven. However, under an exception to the rule, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court that: the proponent sufficiently explained the unavailability of the original; and the secondary evidence was reliable and accurate portrayal of the original. Once such threshold showings are made, final determination of the weight to be given to the secondary evidence is left to the trier of fact. And where, as was the case here, the Court sat as the factfinder, its fact-finding determination would not be disturbed on appeal unless its conclusions could not have been reached under any fair interpretation of the evidence, particularly where the findings of fact rested largely on the credibility of witnesses.

In this case, the appeals court found that reliability of the photocopies turned on the trial Court’s credibility determinations, which there was no reason to disturb. Carlei’s handwriting expert acknowledged that the images of the parents’ signatures on the photocopy of the lease were consistent with their known signatures and he found no evidence that the images of their signatures or the document itself was manipulated. Rather, he merely speculated that such a danger of manipulation always existed. Carlei asserted that the parents would not have given the Casanas the lease because there was a strained relationship between them.

But that was no basis to disturb Supreme Court’s conclusion that the parents “wanted to provide for their progeny” and “loved [the Casanas], certainly enough to give them an apartment in a building” which Richard now owned.

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