ON ELECTRONIC SIGNATURES

Here is an interesting situation involving the Electronic Signatures and Records Act.

SOLARTECH RENEWABLES, LLC v. Vitti, 2017 NY Slip Op 8574 - NY: Appellate Div., 3rd Dept. 2017:

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Defendant is the party to be charged, but she did not put pen to paper and physically sign any relevant document. Plaintiff contends that defendant's act of typing her name at the bottom of the proposed side letter constituted her signature and agreement to be bound. We disagree. While emails may comprise some of the documents that are read together to form a contract (see Brighton Inv., Ltd. v Har-Zvi, 88 AD3d at 1222), the question here is whether any of the relevant documents were signed by defendant.

Plaintiff cites to decisions from other Departments that have held that "[a]n e-mail sent by a party, under which the sending party's name is typed, can constitute a writing for purposes of the statute of frauds" (Newmark & Co. Real Estate Inc. v 2615 E. 17 St. Realty LLC, 80 AD3d 476, 477 [2011]; see Agosta v Fast Sys. Corp., 136 AD3d at 695; Williamson v Delsener, 59 AD3d 291, 291 [2009]; Naldi v Grunberg, 80 AD3d 1, 11-12 [2010], lv denied 16 NY3d 711 [2011]; Stevens v Publicis S.A., 50 AD3d 253, 255-256 [2008], lv dismissed 10 NY3d 930 [2008])[3]. Those holdings are consistent with the Electronic Signatures and Records Act (hereinafter ESRA), in which the Legislature provided that, "unless specifically provided otherwise by law, an electronic signature may be used by a person in lieu of a signature affixed by hand. The use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand" (State Technology Law § 304 [2]; see 9 NYCRR 540.4). An electronic signature is defined as "an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" (State Technology Law § 302 [3]). "`Electronic record' shall mean information, evidencing any act, transaction, occurrence, event, or other activity, produced or stored by electronic means and capable of being accurately reproduced in forms perceptible by human sensory capabilities" (State Technology Law § 302 [2]).

Under ESRA, plaintiff would have a viable argument that defendant signed the emails she sent, as they are electronic records and she typed her name at the end of each. As confirmed at oral argument, however, plaintiff does not contend that the emails constituted signed documents forming the contract, but that defendant's typed name at the end of the proposed side letter constituted her signature. That document was separately typed and attached to emails for transmission. Although emails are electronic records, not every attachment to an email qualifies as an electronic record under ESRA. One of the purposes of ESRA is "to promote the use of electronic technology in the everyday lives and transactions" of government entities, businesses and average citizens (L 2002, ch 314, § 1, 2002 McKinney's Session Laws of NY, at 1034 [statement of legislative intent]; see Letter from William Pelgrin, Counsel of Office for Technology, Aug. 19, 1999, Bill Jacket, L 1999, ch 4 at 32-33). To fulfill this purpose, it was necessary for the Legislature to permit emails to be considered equivalent to signed writings when that was the sender's intent (see Naldi v Grunberg, 80 AD3d at 11-13), because it was not possible to place a handwritten signature on an email or similar electronic record that was being transmitted electronically.

The same logic does not apply to ordinary typed documents that are scanned and attached to emails, because a party could easily affix a handwritten signature to those documents. Indeed, defendant provided a signature line for plaintiff on the proposed side letter and requested that plaintiff's representative sign it to acknowledge acceptance of her conditions. The record demonstrates that plaintiff's representative must have printed a copy of the proposed side letter and endorsed it with his handwritten signature, then scanned and emailed the signed copy to defendant. That ordinary letter did not transform into an electronic record simply by virtue of its attachment to an electronic record (i.e., defendant's email), revert to a non-electronic record when printed and signed, then transform into an electronic record again when the signed copy was scanned and attached to a new email. In sum, the record does not demonstrate that the proposed side letter, itself, was an electronic record.

Defendant typed her name to the proposed side letter but did not sign it, although affixing her signature would have been easy and she requested that plaintiff affix an actual signature to it. Thus, even though that letter was attached to an email, we reject plaintiff's argument that defendant's typed name at the bottom of the letter constituted a signature. Because no document was signed by defendant, the alleged contract — assuming one was ever formed — did not satisfy the statute of frauds and is void. As the claims against defendant were based on the alleged contract, defendant was entitled to summary judgment dismissing the complaint against her."