On March 20, 2026, Justice Cohen of the New York County Commercial Division issued a decision in EHL Funding LLC v. McFarland, 2026 NY Slip Op. 31128(U), holding that a contract can be enforced even if the original is not available, explaining:
The fact that EHL has not produced the original version of the Guaranty does not disturb this prima facie showing. While a party seeking to prove the contents of a document must generally offer in evidence the original document, secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings that the proponent of the substitute has sufficiently explained the unavailability of the primary evidence and has not procured its loss or destruction in bad faith.
Here, EHL has adduced secondary evidence of the Guaranty in the form of a facially valid copy of the original (Guaranty) and, through the affirmation of its former counsel, explained that the original cannot be located despite a thorough search. While Mr. Nemeth challenges the enforceability of the guaranty (addressed below), there is no indication that either Mr. Fleischmann or EHL falsified the copy or otherwise procured it in bad faith.
. . .
Turning to the merits, it is undisputed that the signature page of the Guaranty was, first, individually signed and notarized by Mr. Nemeth and, at some point thereafter, attached to the Guaranty’s substantive pages. While Mr. Nemeth asserts that he believe[d he] was guaranteeing the transfer of McFarland’s Facebook (FB) stock, the record conclusively shows that Mr. Nemeth agreed to guaranty the $3,000,000 loan from EHL to Fyre Festival LLC: (i) Mr. Nemeth received an email from Mr. McFarland attaching an agreement guaranteeing a $3,000,000 loan and stating, “please sign by 5!”; (ii) Mr. Nemeth responded to this email five minutes later stating, “Ok to sign […] for me as proxy”: (iii) Mr. McFarland proceeded to send Mr. Nemeth the e-signed guaranty to which Mr. Nemeth responded, “All good to go thanks”; and (iv) two days later, Mr. Nemeth signed and had notarized a single signature page which he proceeded to mail to Mr. Fleischmann.
. . .
Mr. Nemeth contends that NY Gen Oblig. 5-701(a)—pursuant to which a promise to answer for the debt of another (e.g., a guaranty) is void unless it or some note or memorandum thereof be in writing, and subscribed by the party to be charged therewith— renders any agreement made between Mr. Nemeth and EHL unenforceable. However, the fact that Mr. Nemeth only signed and returned a signature page does not itself preclude the Guaranty’s enforceability provided EHL can establish that Mr. Nemeth knew, or ought to have known, that the page corresponded to the terms of the Guaranty as presented in this action by EHL, which, as explained above, it has done.
. . .
Finally, as explained above, the fact that EHL has not adduced the Guaranty in original form does not require summary judgment in Mr. Nemeth’s favor; EHL may establish Mr. Nemeth’s obligation based on the copy, the signature page, and the surrounding circumstances.
(Internal quotations and citations omitted).