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Current Developments in the Commercial Divisions of the
New York State Courts by Schlam Stone & Dolan LLP
Posted: November 17, 2020

E-Mail Between Counsel Cannot Form Binding Agreement if The E-Mail Does Not Have the Attorney’s Typed E-Mail Signature

On October 23, 2020, Justice Knipel of the Kings County Commercial Division issued a decision in Doka USA, Ltd. v. Manny P Concrete, Inc., 2020 NY Slip Op. 33618(U), holding that an e-mail between counsel cannot form a binding agreement if the e-mail does not have that attorney’s typed e-mail signature, explaining:

E-mails exchanged between counsel, which contained their printed names at the end, constitute signed writings (CPLR 2104) within the meaning of the statute of frauds. The copy of the 8:29 AM email from Mr. Frade filed with the court (purportedly acknowledging and accepting the settlement offer) is redacted, and thus the court is unable to confirm the contents therein. There are no other indications that Mr. Frade properly subscribed either the 8:29 AM email or the 8:32 AM email in accordance with CPLR 2104 by typing his name therein under circumstances manifesting an intent that the name be treated as a signature.

Accordingly, Doka’s motion to enforce the settlement agreement is denied.

(Internal quotations and citations omitted).

In New York, a contract need not be in writing. However, whether oral; embodied in an exchange of e-mails, like the alleged contract discussed above; or in a full, formal written document, to be binding a contract must contain the material terms of the agreement and, as discussed here, certain formalities indicating an intent to be bound. Contact Schlam Stone & Dolan partner John Lundin at jlundin@schlamstone.com if you or a client face a situation where you are unsure how to enforce rights you believe you have under a contract.

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Posted in Commercial, Contracts
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