On October 23, 2024, the Second Department issued a decision in Yakubov v. Gaft, 2024 NY Slip Op. 05240, holding that the best evidence rule does not bar evidence if there is an adequate explanation for the absence of the original, explaining:
An exception to the best evidence rule provides that secondary evidence of the contents of an unproduced original may be admitted upon threshold factual findings by the trial court 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. Contrary to the defendant’s contention, the Supreme Court properly admitted into evidence copies of a ledger, since the plaintiff Michael Yakubov, through his testimony, satisfactorily accounted for his inability to produce the original ledger.
(Internal quotations and citations omitted).