Opinion
0600672/2004.
February 4, 2008.
Plaintiff makes this motion in limine seeking an order precluding defendants from offering any evidence at trial concerning any claim for labor costs incurred from remedial work alleged as part of Defendants' set-off and counterclaim. The plaintiff asserts the evidence should be precluded based on the Best Evidence Rule and for spoliation.
The defendant seeks to admit Extra Work Orders (EWO's) in support of its set off claim. The plaintiff objects based upon the Best Evidence Rule because the EWO's were generated after referencing information transcribed from Daily Foreman Reports (DFR's). The DFR's have been testified to as being lost prior to the commencement of this proceeding. The defendant seeks to admit the EWO's as Business Records kept in the ordinary course of business.
It is true that the Best Evidence Rule applies to business records (See, Richardson on Evidence, § 570 [10th Ed]). However, the Best Evidence Rule does not place categorical limitations on types of secondary evidence that is admissible (Schozer v William Penn Life Ins. Co., 84 NY2d 639).
It is also generally the law that entries in a business record must be "original" entries and not be merely transcribed records of copies. There is an exception, however, where it is customary business practice to prepare a summary from daily records, then the summary may be admissible (See, Stevens v Kirby, 86 AD2d 391 [4th Dept 1982]). The Second Department also adopted this rule when the court held that summaries or balances of accounts may be produced to prove aggregate profits or receipts without the need to produce those documents which set forth the underlying data (RI Electronics v Neuman, 81 AD2d 832 [2nd Dept 1981]).
In RI, the court found that business summaries are deemed to be independent from the writings or documents form which they are drawn (RI v Neuman 81 AD2d at 834). However, it must be clear from the record that the documents have an independent business function and are separate and distinct from the corresponding underlying documents (Id). They also must be prepared in the regular course of business and their authenticity must be vouched for (Id).
Having reviewed the witness testimony in this matter, this court finds the defendant has established on the record the EWO's do serve an independent business function and were regularly prepared in the ordinary course of business. For this reason, the EWO's can be deemed independent of the DFR's and therefore are not precluded by the Best Evidence Rule.
The court also notes that because the EWO's serve an independent function from the DFR's, the claims of spoliation of the DFR's need not be considered with respect to this motion seeking to preclude the EWO's from being admitted.
The court also notes for the record, that overall, when considering these issues, it is called to look at the reliability of the documents in question. This court is satisfied that the EWO's are reliable and accurate and therefore properly admitted into evidence.
So Ordered.