LAURO v. BRADLEY (1999)

 Plaintiff and defendants executed a contract pursuant to which defendants agreed to auction the contents of plaintiff's painting and hardware stores and contracting business.   Plaintiff commenced this action alleging fraud, misrepresentation and breach of contract, and a jury found in favor of plaintiff on the breach of contract theory.   Defendants failed to preserve for our review their contention that Supreme Court erred in admitting parol evidence (see, CPLR 5501[a][3] ).   In any event, the “general merger clause [in the contract] is ineffective to exclude parol evidence to show fraud in inducing the contract” (Danann Realty Corp. v. Harris, 5 N.Y.2d 317, 320, 184 N.Y.S.2d 599, 157 N.E.2d 597;  see, Schooley v. Mannion, 241 A.D.2d 677, 678, 659 N.Y.S.2d 374;  Smith v. Fitzsimmons, 180 A.D.2d 177, 181, 584 N.Y.S.2d 692).

 We reject defendants' contention that the court erred in admitting in evidence a list of the items sold at the auction.   A witness testifying concerning hundreds of items may use a list of those items, and after the witness has testified the list may be admitted in evidence, “not as proving anything of itself, but as a detailed statement of the items testified to by the witness” (Howard v. McDonough, 77 N.Y. 592, 594;  see, Prince, Richardson on Evidence § 6-221 [Farrell 11th ed.] ).

 Finally, we reject defendants' contention that the court erred in refusing to admit an audio recording in evidence.   The court properly exercised its discretion in determining that the recording was so inaudible and indistinct that the jury would have to speculate concerning its content (see, Wilson v. Bodian, 130 A.D.2d 221, 232, 519 N.Y.S.2d 126;  cf., People v. Scarbrough, 254 A.D.2d 824, 678 N.Y.S.2d 764, lv. denied 92 N.Y.2d 1038, 684 N.Y.S.2d 503, 707 N.E.2d 458;  People v. Morgan, 175 A.D.2d 930, 932, 573 N.Y.S.2d 765, lv. denied 79 N.Y.2d 861, 580 N.Y.S.2d 733, 588 N.E.2d 768).

Judgment unanimously affirmed without costs.

MEMORANDUM: