Opinion
2020-852 K C
09-23-2022
Robert DOYLE, Appellant, v. P.A. SPORTS AUTHENTICATOR, Respondent.
Robert Doyle, Islandia, appellant pro se. Law Offices of Armen R. Vartian (Armen R. Vartian of counsel), for respondent.
Robert Doyle, Islandia, appellant pro se.
Law Offices of Armen R. Vartian (Armen R. Vartian of counsel), for respondent.
PRESENT: MICHELLE WESTON, J.P., WAVNY TOUSSAINT, DONNA-MARIE E. GOLIA, JJ.
ORDERED that so much of the appeal as is from the order entered November 28, 2016 is dismissed, as that order was superseded by the order entered April 20, 2017, made upon reargument; and it is further,
ORDERED that the order entered April 20, 2017, insofar as appealed from, is affirmed, without costs.
Plaintiff commenced this action in Civil Court, Kings County, against defendant, a California entity that is in the business of grading baseball cards, claiming that he submitted 15 baseball cards to defendant, which allegedly damaged, switched, and/or misgraded a number of his cards. A copy of defendant's printed "submission form," which lists plaintiff's baseball cards in handwriting and apparently bears plaintiff's signature, is annexed to the complaint.
Defendant moved to dismiss the complaint pursuant to CPLR 3211 (a). In a supporting affidavit, defendant's president stated that, while he had been unable to locate plaintiff's original submission form, defendant uses a two-page submission form and, based on the page annexed to the complaint, he had been able to identify the second page of that version of their form. That second page, which was annexed to defendant's motion papers, constituted, according to defendant's president, the reverse side of the form plaintiff had annexed to the complaint. That page included the statement, in bold, uppercase letters, that the Superior Court of Orange County, California, had exclusive jurisdiction and venue for any disputes "arising from customer's submission of cards" to defendant. Defendant claimed entitlement to dismissal of the instant New York action based on that forum selection clause. In opposition to the motion, plaintiff, who is an attorney, asserted that he had not known of the forum selection clause; that no restrictive terms above his signature had directed his attention to the clause; and that the clause had been printed in a type size which was not compliant with the requirements of CPLR 4544. In reply papers, defendant asserted that the type size complied with CPLR 4544 and that the forum selection clause was enforceable.
In an order entered November 28, 2016, the Civil Court (Reginald A. Boddie, J.) granted defendant's motion to dismiss upon findings that contractual forum selection clauses are prima facie valid and enforceable; that plaintiff had failed to establish that the forum selection clause was unjust or invalid due to fraud or overreaching, or that a trial in California would be gravely difficult; and that the forum selection clause had been sufficiently large and noticeable so that, had plaintiff read the document, he would have discovered it. Plaintiff subsequently moved for leave to reargue. In an order entered April 20, 2017, the Civil Court (Ingrid Joseph, J.) granted reargument but adhered to the prior determination. Plaintiff appeals from the November 28, 2016 order and from so much of the April 20, 2017 order as, upon reargument, adhered to the prior determination. At the outset, we note that so much of the appeal as is from the November 28, 2016 order is dismissed as that order was superseded by the April 20, 2017 order (see Hayon v. Levovitz , 34 Misc. 3d 158[A], 2012 WL 762565, 2012 N.Y. Slip Op. 50436[U] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2012] ).
At issue here is whether plaintiff, an attorney, may avoid the consequences of an agreement he signed, which constituted a contract, without any evidence that he was prohibited from reading and reviewing the entire document before agreeing to its terms.
As a general rule, "[a] party that signs a document is conclusively bound by its terms absent a valid excuse for having failed to read it" ( Guerra v. Astoria Generating Co., L.P. , 8 A.D.3d 617, 618, 779 N.Y.S.2d 563 [2004] ; see Shklovskiy v. Khan , 273 A.D.2d 371, 372, 709 N.Y.S.2d 208 [2000] ; Sofio v. Hughes , 162 A.D.2d 518, 519, 556 N.Y.S.2d 717 [1990] ; see also Pimpinello v. Swift & Co. , 253 N.Y. 159, 162-163, 170 N.E. 530 [1930] ). "This is so because [i]f the signer could read the instrument, not to have read it was gross negligence; if he could not read it, not to procure it to be read was equally negligent; in either case the writing binds him" ( Morris v. Snappy Car Rental, Inc. , 189 A.D.2d 115, 120, 595 N.Y.S.2d 577 [1993] [internal quotation marks omitted], affd 84 N.Y.2d 21, 614 N.Y.S.2d 362, 637 N.E.2d 253 [1994] ; see Pimpinello v. Swift & Co. , 253 N.Y. at 162-163, 170 N.E. 530 ; Manufacturers & Traders Trust Co. v. S.W.U. Assoc., Inc. , 105 A.D.2d 1118, 1119, 482 N.Y.S.2d 388 [1984] ; see also Sofio v. Hughes , 162 A.D.2d 518, 556 N.Y.S.2d 717 ; Manufacturers & Traders Trust Co. v. Commercial Door & Hardware, Inc. , 51 A.D.2d 362, 366, 381 N.Y.S.2d 709 [1976] ; James Talcott, Inc. v. Wilson Hosiery Co. , 32 A.D.2d 524, 299 N.Y.S.2d 460 [1969] ).
The subject agreement provided plaintiff with sufficient notice of the forum clause within the terms and conditions section. The print employed in the agreement was both clear and legible, and plaintiff has not demonstrated that the forum selection clause fails to comply with CPLR 4544. The following language appeared in bold and capitalized letters above plaintiff's signature: "I HAVE READ AND AGREE TO THE PSA [Professional Sports Authenticator] TERMS AND CONDITIONS SET FORTH ON THIS FORM." The two-sided form reveals that it is full of written information from the top of each side to the bottom. Plaintiff acknowledges that he never read the document but rather was given the agreement and instructed to sign the bottom of the agreement, which he did.
We reject plaintiff's contention that the forum clause was invalid because it appeared on the reverse side of the form. The mere fact that the terms and conditions appear on the reverse side of an agreement does not necessarily vitiate a party's responsibility to fully read and review the agreement prior to signing it (cf. Hotel 71 Mezz Lender LLC v. Falor , 64 A.D.3d 430, 430, 882 N.Y.S.2d 414 [2009] [a signer's duty to read and understand that which it signed is not "diminished merely because (the signer) was provided with only a signature page"]; see also Friedman v. Fife , 262 A.D.2d 167, 168, 692 N.Y.S.2d 61 [1999] ). A party is bound by terms printed on the reverse side of a contract if it is established that such terms were properly called to the party's attention (see Tri-City Renta-Car & Leasing Corp. v. Vaillancourt , 33 A.D.2d 613, 614, 304 N.Y.S.2d 682 [1969] ; Matter of Arthur Philip Export Corp. [Leathertone, Inc.] , 275 App. Div. 102, 105, 87 N.Y.S.2d 665 [1949] ). The totality of the circumstances determines whether an agreement sufficiently called the signer's attention to the fact that there was information on the reverse side that the parties were agreeing to.
Upon our review of this agreement, we find that the forum selection clause is fully enforceable. The terms on the reverse side of the agreement were sufficiently called to the attention of plaintiff, an attorney (see Morris v. Snappy Car Rental, Inc. , 189 A.D.2d 115, 595 N.Y.S.2d 577 ; Gillman v. Chase Manhattan Bank , 73 N.Y.2d 1, 11, 537 N.Y.S.2d 787, 534 N.E.2d 824 [1988] ). There was a clause on the front of the document that referred to terms appearing on the reverse side. The record further establishes that the terms and conditions were prominently set forth on the reverse side of the agreement. In view of the foregoing, we find incredible plaintiff's contention that he was unaware that there was a reverse side to the form until receipt of defendant's motion. Consequently, upon reargument, defendant's motion to dismiss the complaint was properly granted.
Accordingly, the order entered April 20, 2017, insofar as appealed from, is affirmed.
WESTON, J.P., and TOUSSAINT, J., concur.
GOLIA, J., concurs in part and dissents in part and votes to dismiss the appeal from the order entered November 28, 2016 and to reverse the order entered April 20, 2017, insofar as appealed from, and, upon reargument, to deny defendant's motion to dismiss the complaint in the following memorandum:
It is unclear whether, as defendant contends, the document entitled "submission form" constituted a contract or whether it was more in the nature of a receipt given in connection with a bailment, with a copy handed to plaintiff to establish defendant's possession and control of plaintiff's specific 15 baseball cards (see Chubb & Son, Inc. v. Edelweiss, Inc. , 258 A.D.2d 345, 685 N.Y.S.2d 221 [1999] ; Daptardar v. Air Park on JFK, Inc. , 72 Misc. 3d 133[A], 2021 WL 3009888, 2021 N.Y. Slip Op. 50665[U] [App. Term, 2d Dept., 2d, 11th & 13th Jud. Dists. 2021] ). Disclaimers or limitations of liability printed on the reverse side of bailment receipts are ineffective where the bailor has not been notified of the presence of such language or of the bailee's intention to disclaim or limit its liability (see Brooks v. Angelo's Cleaners , 103 A.D.2d 923, 477 N.Y.S.2d 922 [1984] ; Ginsberg v. Spring Dry Cleaners, Inc. , 2002 N.Y. Slip Op. 50084[U], 2002 WL 398522 [App. Term, 1st Dept. 2002] ). Assuming that the submission form was merely a receipt with respect to a bailment of the baseball cards, I find that defendant failed to establish its entitlement to dismissal of the complaint, since, in its motion papers, defendant failed to demonstrate that plaintiff was aware of the forum selection clause on the reverse side of the submission form.
If I were to interpret the submission form as constituting a contract, I would likewise conclude that defendant failed to establish its entitlement to dismissal of the complaint. Contractual forum selection clauses are " ‘prima facie valid and enforceable unless ... shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court’ " ( Creative Mobile Tech., LLC v. Smart Modular Tech., Inc. , 97 A.D.3d 626, 626, 948 N.Y.S.2d 375 [2012], quoting LSPA Enter., Inc. v. Jani-King of N.Y., Inc. , 31 A.D.3d 394, 395, 817 N.Y.S.2d 657 [2006] ; see Somerset Fine Home Bldg., Inc. v. Simplex Indus., Inc. , 185 A.D.3d 752, 753, 127 N.Y.S.3d 131 [2020] ; Lifetime Brands, Inc. v. Garden Ridge, L.P. , 105 A.D.3d 1011, 1012, 963 N.Y.S.2d 718 [2013] ).
While it is true that the fact that an agreement is "not the product of negotiation does not render it unenforceable" ( Molino v. Sagamore , 105 A.D.3d 922, 923, 963 N.Y.S.2d 355 [2013] ), mutual assent is an element of binding contracts (see Petkanas v. Petkanas , 191 A.D.3d 708, 710-711, 140 N.Y.S.3d 586 [2021] ; 26th St. Partners, LLC v. Federation of Orgs. for the N.Y. State Mentally Disabled, Inc. , 182 A.D.3d 543, 543-544, 122 N.Y.S.3d 349 [2020] ; 1912 Newbridge Rd., LLC v. Liantonio , 172 A.D.3d 962, 963-964, 98 N.Y.S.3d 464 [2019] ) and even in printed form agreements, the terms must be "reasonably communicated" to the party (see Lischinskaya v. Carnival Corp. , 56 A.D.3d 116, 120, 865 N.Y.S.2d 334 [2008] ). It is undisputed that the forum selection clause at issue only appears on the reverse side of the submission form, with no statement directly above plaintiff's signature directing his attention to terms and conditions on the reverse side (cf. Gillman v. Chase Manhattan Bank , 73 N.Y.2d 1, 11, 537 N.Y.S.2d 787, 534 N.E.2d 824 [1988] ; Roger's Fence, Inc. v. Abele Tractor & Equip. Co., Inc. , 26 A.D.3d 788, 789, 809 N.Y.S.2d 712 [2006] ; Morris v. Snappy Car Rental, Inc. , 189 A.D.2d 115, 595 N.Y.S.2d 577 [1993], affd 84 N.Y.2d 21, 30, 614 N.Y.S.2d 362, 637 N.E.2d 253 [1994] ; Greenworld Irrigation Specialists, Inc. v. Grossman , 30 Misc. 3d 142[A], 2011 WL 817369, 2011 N.Y. Slip Op. 50320[U] [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2011] ; see generally Yellow Book Sales & Distrib. Co., Inc. [a Del. Corp.] v. RS Bldrs., Inc. , 41 Misc. 3d 146[A], 2013 WL 6569870, 2013 N.Y. Slip Op. 52104[U] [App. Term, 2d Dept., 9th & 10th Jud. Dists. 2013] ). Rather, the sole reference on the signature page of the submission form to the reverse side thereof is to information about shipping fees. Since it appears from the signature page annexed to the complaint that plaintiff paid cash to defendant and did not check a selection for shipping fees, plaintiff, as signer, should not be held to have notice of any other terms and conditions appearing on the reverse side of the form.
Additionally, in his opposition to defendant's motion, plaintiff described the circumstances under which he signed the submission form: "While at a baseball card show at the Westchester County Center, I submitted several baseball cards for grading to a woman working at defendant's table. This employee placed a pre-printed Submission Form on the table and told me to list my cards thereon and sign on the lower right corner, which I did." As a result of the circumstances under which he signed the submission form, plaintiff denied having had any awareness of the forum selection clause. Since no conflicting claims were presented in defendant's reply papers as to the circumstances under which plaintiff signed the submission form, defendant failed to establish that the forum selection clause was enforceable. Consequently, defendant's motion should have been denied.
I do not consider any arguments pertaining to CPLR 4544, since neither party provided admissible evidence pertaining to the type size used in the submission form agreement.
Accordingly, for the reasons stated by the majority, I vote to dismiss the appeal from the November 28, 2016 order. However, I vote to reverse the order entered April 20, 2017, insofar as appealed from, and, upon reargument, to deny defendant's motion to dismiss the complaint.