Opinion
Index No. E2023002965
10-26-2023
AJ Equity Group LLC, Plaintiff, v. The Office Connection, Inc; SWIFT COMPUTER SUPPLY, INC; OFFICE CONNECTION-ILLINOIS LLC, JOSEPH JACK MINC, KAREN ESTHER MINC, Defendants.
Steven Zakharyayev, Esq., Law Offices of Steven Zakharyayev, PLLC, for the Plaintiff James Puritz, Esq., and Edward J. Aucoin, Esq., pro hac vice, Grant & Eisenhofer P.A., for Defendant Karen E. Minc
Unpublished Opinion
Steven Zakharyayev, Esq., Law Offices of Steven Zakharyayev, PLLC, for the Plaintiff
James Puritz, Esq., and Edward J. Aucoin, Esq., pro hac vice, Grant & Eisenhofer P.A., for Defendant Karen E. Minc
HON. DANIEL J. DOYLE SUPREME COURT JUSTICE
AJ Equity Group LLC (hereinafter "plaintiff") initiated this action by the filing of a Summons and Complaint in March of 2023 alleging that THE OFFICE CONNECTION, INC; SWIFT COMPUTER SUPPLY, INC; and OFFICE CONNECTION - ILLINOIS LLC (hereinafter "corporate defendants") and JOSEPH JACK MINC and KAREN ESTHER MINC (hereinafter "guarantor defendants") breached a sale of a receivables agreement (hereinafter "agreement") and seeking resultant damages. Defendant Karen E. Minc answered the complaint. Important to the issues herein, in her answer defendant Minc raised the defense of lack of jurisdiction and that she did not sign the agreement. The remaining defendants did not answer the complaint.
The Verified Complaint contains three causes of action: (1) breach of contract; (2) breach of guaranty as to Defendant Joseph Jack Minc; and (3) breach of guaranty as to Defendant Karen Esther Minc. (NYSCEF Docket # 1.)
Plaintiff now moves for summary judgment. Defendant Minc moves to dismiss the complaint. For the reasons set forth below, the plaintiff's motion is granted as to the non-answering defendants and denied- without prejudice- as to defendant Minc. Defendant's Minc motion is denied, without prejudice.
Motion to for Summary Judgment
A party seeking summary judgment pursuant to CPLR 3212 must make prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate the absence of any material issue of fact. (Iselin & Co. Inc v Landau, 71 N.Y.2d 420 [1988].) Summary judgment may only be granted when "it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function". (Suffolk County Dep't of Soc. Servs. v James M., 83 N.Y.2d 178, 182 [1994].) Only when the proponent demonstrates entitlement to summary judgment, the opposing party must then demonstrate, generally by admissible evidence, the existence of an issue of fact requiring a trial. (Zuckerman v City of New York, 49 N.Y.2d 851 [1985].)
Plaintiff submits the affidavit of Joshua Feig to establish the necessary foundation to admit the agreement and the defendants' remittance history as business records. The agreement and remittance history- and Mr. Feig's averment that plaintiff provided the purchase price and that the defendants defaulted- is sufficient for plaintiff to meet its initial burden on the 1st and 2nd causes of action in the Verified Complaint.
The corporate defendants and defendant Joseph Jack Minc did not submit any evidentiary submissions which would establish the existence of a material fact requiring a trial. Thus, summary judgment is awarded to the plaintiff on the 1st and 2nd causes of action. According to the terms of the agreement, plaintiff is entitled to $173,761.17 (representing the balance of the purchases receivables plus a default fee of $2,500 and an NSF fee of $150).
Summary Judgment as to Defendant Karen E. Minc and her Motion to Dismiss
"On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction (see, CPLR 3026). We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Morone v. Morone, 50 N.Y.2d 481, 484, 429 N.Y.S.2d 592, 413 N.E.2d 1154; Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 634, 389 N.Y.S.2d 314, 357 N.E.2d 970)." (Leon v. Martinez, 84 N.Y.2d 83, 87-88 [1994].)
Defendant Karen E. Minc moves to dismiss the Complaint. Although the defendant does not delineate the statutory basis for her dismissal motion, it appears that the essence of her claim is that she did not sign the agreement. Thus, as alleged by the defendant, she did not consent to New York subject matter jurisdiction (as the agreement's terms stated New York law would apply), or personal jurisdiction (as the agreement allowed service of process by regular mail as opposed to service of process pursuant to the CPLR). In support of the motion, the defendant submits an affidavit in which she avers that she has never lived in the State of New York, she was not a party to the agreement, and she did not sign the agreement.
The agreement also contained a Venue and Forum Selection clause limiting venue to certain counties: "Any litigation relating to this Agreement, whether sounding in contract, tort, law, equity, or otherwise, or involving AJ on one side and any Merchant or any Guarantor on the other must be commenced and maintained in any court located in the Counties of Kings, Nassau, New York, or Sullivan in the State of New York (the "Acceptable Forums"). The parties agree that the Acceptable Forums are convenient, submit to the jurisdiction of the Acceptable Forums, and waive any and all objections to the jurisdiction or venue of the Acceptable Forums. If any litigation is initiated in any other venue or forum, the parties waive any right to oppose any motion or application made by any party to transfer such litigation to an Acceptable Forum...". The defendant has not moved to transfer venue to one of the listed counties.
The agreement does not have a signature of Karen E. Minc. Instead, it has an "e-signature" The agreement contains a "signature certificate" which purports to show that a "Karen Minc" at an IP address located in Farmington Hills, Michigan consented to an e-signature through an email address of karen.minc@yahoo.com. The agreement contains data fields for social security number and driver license number, but both of those fields are blank.
The plaintiff does not provide an affidavit, or other admissible evidence, explaining the significance of the "signature certificate" to allow this Court to determine, as a matter of law, that the agreement contains Ms. Minc's signature or that it constitutes valid acceptance of the contract.
Instead, plaintiff cites to Sterling Nat'l Bank v. Alan B. Brill, P.C. (186 A.D.3d 515 [2nd Dept. 2020]). In Sterling, the Second Department dismissed a forgery claim noting "[t]he signature on the guaranty is similar to the signatures on the other loan agreement documents, which Brill admits he signed, and do not "differ enough... to raise a triable issue of fact" (TD Bank, N.A. v. Piccolo Mondo 21st Century, Inc., 98 A.D.3d 499, 500, 949 N.Y.S.2d 444)." (Id. at 518.) Here, unlike in Sterling, there is no "pen and ink" signature to compare to the other documents signed. Another case cited by plaintiff Bank of New York Mellon v. West (183 A.D.3d 683 [2nd Dept. 2020] contained a notarized certificate of acknowledgment, notably absent from this case.
However, Ms. Minc did not meet her burden on her motion to dismiss. "A court may grant a motion seeking dismissal pursuant to CPLR 3211(a)(1) "only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Meyer v. Zucker, 160 A.D.3d 1243, 1245, 75 N.Y.S.3d 325 [2018] [internal quotations marks, brackets and citations omitted], lv denied 32 N.Y.3d 905, 2018 WL 4440633 [2018]; accord Lilley v. Greene Cent. Sch. Dist., 168 A.D.3d 1180, 1181, 90 N.Y.S.3d 661 [2019]; see Zeppieri v. Vinson, 190 A.D.3d 1173, 1175, 140 N.Y.S.3d 311 [2021]). To constitute such conclusive documentary evidence, "the evidence must be unambiguous" (Koziatek v. SJB Dev. Inc., 172 A.D.3d 1486, 1486, 99 N.Y.S.3d 480 [2019] [internal quotation marks and citations omitted]; accord New York Mun. Power Agency v. Town of Massen a, 188 A.D.3d 1517, 1518, 137 N.Y.S.3d 520 [2020])." (Shephard v. Friedlander, 195 A.D.3d 1191, 1193 [3rd Dept. 2021].)
The defendant's affidavit, and the allegations contained therein, are not sufficient. ""Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (J.A. Lee Elec., Inc. v. City of New York, 119 A.D.3d 652, 653, 990 N.Y.S.2d 223 [internal quotation marks omitted]; see Porat v. Rybina, 177 A.D.3d 632, 633, 111 N.Y.S.3d 625; JBGR, LLC v. Chicago Tit. Ins. Co., 128 A.D.3d 900, 903, 11 N.Y.S.3d 83)."" (Davis v. Henry, supra at 597-98.)
Thus, defendant Minc's motion to dismiss must be denied.
The Court does not reach defendant Minc's arguments that the Court lacks jurisdiction. Those arguments are necessarily dependent upon whether Ms. Minc signed the agreement, and her affidavit is insufficient documentary evidence to establish that on a motion to dismiss. If plaintiff establishes that she did sign the agreement, as the agreement's terms dictated that the parties agreed on the New York jurisdiction provision and service by mail provision, those arguments are meritless. Parties are free to contractually waive the statutory rules regarding service of process. (See Alfred E. Mann Living Tr. v. ETIRC Aviation S.A.R.L.., 78 A.D.3d 137, 140 [1st Dept. 2010]: "... parties to a contract are free to contractually waive service of process (see e.g. Comprehensive Merchandising Catalogs, Inc. v Madison Sales Corp., 521 F.2d 1210, 1212 [7th Cir 1975]; National Equip. Rental v DecWood Corp., 51 Misc.2d 999 [App Term 1966]; see generally 86 NY Jur 2d, Process and Papers § 7). By definition, such waivers render inapplicable the statutes that normally direct and limit the acceptable means of serving process on a defendant.")
Additionally, parties to a contract are typically free to enter into choice-of-law provisions that will be enforced by New York courts. (Ministers & Missionaries Ben. Bd. v. Snow, 26 N.Y.3d 466, 470 [2015]: "We begin with the basic premises that courts will generally enforce choice-of-law clauses and that contracts should be interpreted so as to effectuate the parties' intent (see Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 N.Y.3d 624, 629, 825 N.Y.S.2d 692, 859 N.E.2d 498 [2006]).
However, the Court will consider the motion to dismiss and its accompanying affidavits as evidence in opposition to the plaintiff's motion for summary judgment. Although generally a bald allegation of forgery is insufficient to defeat a motion for summary judgment, in this case Ms. Minc's denial of signature coupled with the plaintiff's failure to submit evidence, or even explain, relative to the e-signature certificate creates an issue of fact necessitating denial of the motion. Although e-signatures are considered valid in New York, the plaintiff's failure to explain the "signature certificate" prevents this Court from determining whether the procedures used complied with either the New York Electronic Signatures and Records Act (ERSA) (NY State Tech § 301 et seq.) or are sufficient for the Court to determine that defendant Karen Minc intended to be bound by the agreement. (See 15 U.S.C.A. § 7006 [5]: "[t]he term "electronic signature" means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.")
Plaintiff's motion for summary judgment on the 3rd cause of action is denied, without prejudice to renew.
Based upon the foregoing, and the papers filed herein, it is hereby
Notice of Motion for Summary Judgment (NYSCEF Docket # 13); Affirmation of Steven Zakharyayev, Esq., with exhibits (NYSCEF Docket # 14-17); Affidavit of Facts with exhibits (NYSCEF Docket # 18-20); Memorandum of Law in Support with exhibits (NYSCEF Docket # 21-23); Statement of Material Facts (NYSCEF Docket # 24); Notice of Motion to Dismiss Complaint (NYSCEF Docket # 25); Affirmation of James Puritz, Esq., with exhibits (NYSCEF Docket #s 26-29); Memorandum of Law in Opposition (NYSCEF Docket # 24).
ORDERED that plaintiff's motion for summary judgment on the 1st and 2nd causes of action is GRANTED; and it is further
ORDERED that plaintiff's motion for summary judgment on the 3rd cause of action is DENIED; and it is further
ORDERED that the defendant Karen E. Minc's motion to dismiss the Complaint is DENIED.