PARMA TILE MOSAIC & MARBLE CO., INC., RESPONDENT, v. ESTATE OF FRED SHORT,
&C., DEFENDANT, MRLS CONSTRUCTION CORP., APPELLANT.
87 N.Y.2d 524, 663 N.E.2d 633, 640 N.Y.S.2d 477 (1996).
February 20, 1996
(Case Commentary by Editorial Board)
2 No. 20(1996 NY Int. 33)
Decided February 20, 1996
_________________________________________________________________
This opinion is uncorrected and subject to revision before publication
in the New York Reports.
Submitted by Gelacio M. Cordero, for Appellant.
Martin Gallent, for Respondent.
SMITH, J.:
The issue presented on this appeal is whether the automatic
imprinting, by a fax machine, of the sender's name at the top of each
page transmitted, satisfies the requirement that a writing be
subscribed under New York State's general Statute of Frauds (General
Obligations Law § 5-701). We reverse the order of the Appellate
Division because we conclude that a subscription requires an act to
authenticate the writing as defendant's. Defendant did not so
subscribe the writing in this case.
In September 1989, Sime Construction Co. (Sime), a subcontractor,
sought to purchase from plaintiff a large quantity of ceramic tile for
use in a construction project. When plaintiff expressed reluctance to
enter into such a large contract without a guaranty, Sime suggested
that plaintiff approach MRLS Construction Corporation (MRLS), the
general contractor on the project, for a guaranty of payment.
Plaintiff contacted MRLS and after several discussions, MRLS faxed a
document to plaintiff which plaintiff asserts is a guaranty. MRLS
contends that it merely transmitted an unsubscribed proposal for a
guaranty by fax.
Plaintiff's copy of the document bore a heading at the top of each
page which indicated the name "MRLS Construction," a telephone number,
the date and time, an unidentified number and a page number. It is
undisputed that sometime before sending the document at issue, MRLS
had programmed its fax machine to automatically imprint this
information on every transmitted page. By this method, the heading
would appear only on the recipient's faxed copy, not on the
SNIPPETS:
The issue presented on this appeal is whether the automatic imprinting, by a fax machine, of
We reverse the order of the Appellate Division because we conclude that a subscription
Defendant did not so subscribe the writing in this case.
In September 1989, Sime Construction Co., a subcontractor, sought to purchase from plaintiff
When plaintiff expressed reluctance to enter into such a large contract without a guaranty,
Plaintiff's copy of the document bore a heading at the top of each page which indicated the
After the facsimile transmission, plaintiff began furnishing Sime with quantities of ceramic
After reargument, the trial court granted plaintiff's motion on the third cause of action,
In granting summary judgment to plaintiff, the trial court rejected MRLS' contention that the
The court held that the heading automatically imprinted by the fax machine on plaintiff's
"Every agreement, promise or undertaking is void, unless it or some note or memorandum
MRLS contends that the fax document does not satisfy the requirement in section 5-701that a
We also reject plaintiff's contention that the intentional act of programming a fax machine,
"The purpose of statutes of frauds is to avoid fraud by preventing the enforcement of
the Legislature adopted a requirement that an intent to authenticate a particular document be
Opinion by Judge Smith.
|
