On October 26, 2023, Justice Doyle of the Seventh Judicial District Commercial Division issued a decision in AJ Equity Group LLC v. Office Connection, Inc., 2023 NY Slip Op. 51157(U), holding that defendant’s mere denial that she e-signed an agreement is an insufficient basis to dismiss claims related to the agreement, explaining:
[A]s 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 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 [email protected]. 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 AD3d 515 [2nd Dept. 2020]). In Sterling, the Second Department dismissed a forgery claim noting the 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. 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 AD3d 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. To constitute such conclusive documentary evidence, the evidence must be unambiguous.
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).
Thus, defendant Minc’s motion to dismiss must be denied.(Internal quotations and citations omitted).