Marzullo v. Domenici

Marzullo v Domenici (2021 NY Slip Op 50232(U)) [*1] Marzullo v Domenici 2021 NY Slip Op 50232(U) [71 Misc 3d 127(A)] Decided on March 18, 2021 Appellate Term, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports. Decided on March 18, 2021 SUPREME COURT, APPELLATE TERM, SECOND DEPARTMENT, 9th and 10th JUDICIAL DISTRICTS PRESENT: : JERRY GARGUILO, J.P., ELIZABETH H. EMERSON, HELEN VOUTSINAS, JJ 2019-1733 W C Cathleen Marzullo, Appellant, against Michael Domenici and Michele Domenici, Respondents. Peter B. Ackerman, Esq., for appellant. Miller & Lee, LLP (Joseph Miller of counsel), for respondents. Appeal from a decision of the City Court of New Rochelle, Westchester County (Susan I. Kettner, J.), dated June 3, 2019, deemed from a judgment of that court entered June 3, 2019 (see CPLR 5512 [a]). The judgment, upon the decision, after a nonjury trial, dismissed the complaint. ORDERED that the judgment is reversed, without costs, and the matter is remitted to the City Court for a new trial. Plaintiff commenced this action to recover the sum of $15,000 which she allegedly loaned to defendants. Defendants served an answer in which they denied that there was a loan and asserted that the money was given as a gift. At a nonjury trial, plaintiff sought to submit printouts of text messages from her phone between herself and defendants in order to establish that the money was a loan. Defense counsel objected, arguing that there was no certification of accuracy of the texts from the phone company. The City Court sustained the objection and precluded plaintiff from authenticating the text messages through plaintiff's testimony. Following the trial, the City Court, in a decision and order dated June 3, 2019, found that the evidence was insufficient to establish that the $15,000 was a loan rather than a gift. A judgment was entered on June 3, 2019 dismissing the complaint. Plaintiff appeals, arguing that the court erred in refusing to permit her to authenticate and enter the text messages into evidence, which proof would have established the loan. It has been held that a printed copy of the content of a set of cell phone messages may be authenticated through, among other methods, the "testimony of a participant in the conversation that it is a complete and accurate reproduction of the conversation and has not been altered" (People v Agudelo, 96 AD3d 611, 611 [2012] [internal quotation marks, brackets and citation [*2]omitted], lv denied 20 NY3d 1095 [2013]). Notably, "[t]he credibility of the authenticating witness and any motive she [or he] may have had to alter the evidence go to the weight to be accorded this evidence, rather than its admissibility" (id.). Here, plaintiff received the messages on her phone, which was available in court, and "had first-hand knowledge of their contents and was an appropriate witness to authenticate the compilation" (id. at 612). Thus, the City Court erred when it denied plaintiff the opportunity to authenticate the text messages she had printed out (see Matter of Colby II. (Sheba II.), 145 AD3d 1271 [2016]; see also People v Javier, 154 AD3d 445 [2017]; De Vera v 243 Suydam, LLC, 60 Misc 3d 1224 [A], 2018 NY Slip Op 51222[U] [Sup Ct, Kings County 2018]). Accordingly, the judgment is reversed and the matter is remitted to the City Court for a new trial. GARGUILO, J.P., EMERSON and VOUTSINAS, JJ., concur. ENTER: Paul Kenny Chief Clerk Decision Date: March 18, 2021