Electronic signatures unconditionally accepted

Martin v Portexit Corp., 2012 NY Slip Op 05088 (1st Dept. 2012)

Interestingly, my view of the law when I handled Rogy v. Mercury became the law in the First Department.  Perhaps, this is more of an academic issue in light of the fact that most of these electronic signatures now contain the appropriate language stating that it was placed at the request of the signor.

Here are the highlights:

“State Technology Law § 304(2) provides 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” (see Wen Zong Yu v Charles Schwab & Co., Inc., 34 Misc 3d 32 [2011]; People v Johnson, 31 Misc 3d 145[A][2011]; Alpha Capital Anstalt v Qtrax, Inc., 26 Misc 3d 1234[A][2010]). CPLR 2106, which provides for affirmations by attorneys, physicians, osteopaths and dentists does not specifically provide that an electronic signature may not be used and that the signature may only be affixed by hand.

In Naldi v Grunberg (80 AD3d 1,12 [2010], lv denied 16 NY3d 711 [2011]), we held that the Legislature “appear[s] to have chosen to incorporate the substantive terms of E-SIGN [Electronic Signatures in Global and National Commerce Act, 15 USC § 7001 et seq.] into New York state law.” Notably, E-SIGN provides that where a statute requires a signature to be notarized, acknowledged, verified, or made under oath, “that requirement is satisfied if the electronic signature of the person authorized to perform those acts, together with all other information required to be included . . . is attached to or logically associated with the signature or record” (15 USC § 7001[g]). In Naldi, we concluded that “E-SIGN’S requirement that an electronically memorialized and subscribed contract be given the same legal effect as a contract memorialized and subscribed on paper” is New York law. We therefore held that the terms “writing” and “subscribed” in General Obligations Law § 5-703 should be construed to include, respectively, electronic communications and signatures (80 AD3d at 12).

There is no sound reason to treat the term “subscribed” as used in CPLR 2106 any differently than it is used in the statute of frauds. The Second Department’s decision in Vista Surgical Supplies, Inc. v Travelers Ins. Co. (50 AD3d 778 [2008]), upon which the motion court relied in concluding that the doctors’ reports were inadmissible, is unpersuasive, and we decline [*3]to follow it. In that case, the Court held that the reports containing the computerized, affixed or stamped facsimiles of the physician’s signature failed to comply with CPLR 2106 in that there was no indication as to who placed them on the reports, or any indicia that the signatures were authorized (see also Rogy Med. P.C. v Mercury Cas. Co., 23 Misc 3d 132[A][2009]). However, requiring such additional information imports a requirement not contemplated or included in either E-SIGN’s provision for signatures made under oath (see 15 USC § 7001[g]), or State Technology Law § 304(2)[FN1]. Additionally, State Technology Law § 306 provides that in any legal proceeding where the CPLR applies, an electronic record or signature may be admitted into evidence pursuant to article 45 of the CPLR. Based upon the foregoing, we conclude that the electronic signatures complied with CPLR 2106, that the affirmations of defendants’ medical experts were admissible and that the affirmations should have been considered by the motion court.”

Mr. Five Boro finally squeaks one out

Five Boro Psychological Servs., P.C. v GEICO Gen. Ins. Co., 2012 NY Slip Op 51057(U)(App. Term 2d Dept. 2012)

He is a rambunctious soul.  They say he is devoted to performing a never ending battery of Beck Inventory Tests and has a mobile Scantron reader because the patients need results.  Instant gratification is how business is performed nowadays.  His patients need physical therapy and are engaged with his form of therapy.  The Appellate Term generally disfavors him, but he beat back Geico.  Fear not, it was not on the merits.  Mr. Five Boro took a page out of Mercury’s 2010 play book.  He figured it worked then; why should it not work now?

“Plaintiff argues on appeal, as it did in the Civil Court, that the peer review reports defendant submitted in support of its cross motion for summary judgment were not in admissible form. We agree, as the peer review reports were affirmed by a psychologist, which is not permissible pursuant to CPLR 2106 (see Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 34 Misc 3d 145[A], 2012 NY Slip Op 50151[U] [App Term, 2d, 11th & 13th Jud Dists 2012]; High Quality Med., P.C. v. Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). We note that, although one of the peer review reports contained a notary public’s stamp and signature, it did not include an attestation that the psychologist had appeared before the notary public and been duly sworn”

I tip my hat to Mr. Five Boro on this one.

Peer hearsay and electronic signatures

Alfa Med. Supplies v GEICO Gen. Ins. Co., 2012 NY Slip Op 50934(U)(App. Term 2d Dept. 2012)

Contrary to plaintiff’s argument on appeal, defendant was not required to annex to its motion papers copies of the medical records which had been reviewed by defendant’s peer [*2]reviewer (see Elmont Open MRI & Diagnostic Radiology, P.C. v New York Cent. Mut. Fire Ins. Co., 30 Misc 3d 126[A], 2010 NY Slip Op 52222[U] [App Term, 9th & 10th Jud Dists 2010]; Urban Radiology, P.C. v Tri-State Consumer Ins. Co., 27 Misc 3d 140[A], 2010 NY Slip Op 50987[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Furthermore, while plaintiff argues that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was permissibly placed on the report by the chiropractor who had performed the peer review (see Quality Health Prods. v Geico Gen. Ins. Co., 34 Misc 3d 129[A], 2011 NY Slip Op 52299[U] [App Term, 2d, 11th & 13th Jud Dists 2011]; Eden Med., P.C. v Eveready Ins. Co., 26 Misc 3d 140[A], 2010 NY Slip Op 50265[U] [App Term, 2d, 11th & 13th Jud Dists 2010]).

Nothing new to report.

A signature placed at the direction of the signor

Right Aid Diagnostic Medicine, P.C. v GEICO Ins. Co., 2012 NY Slip Op 50394(U)(App. Term 2d Dept. 2012)

Assuming one breaches the threshold issue of whether Plaintiff provided sufficient evidence to demonstrate that the signature was anything but holographic, the Court held that the peer report affidavit sufficiently made the proper showing that the signature was electronic and placed at the direction of the signor.

“While plaintiff also asserted that the peer review report contained an electronic stamped facsimile of the peer reviewer’s signature and, as a result, the report was inadmissible, the record indicates that the facsimile signature was placed on the report by the doctor who had performed the peer review or at his direction”

Proof in opposition was insufficient to show a forgery

JPMorgan Chase Bank, N.A. v Bauer,  2012 NY Slip Op 00932 (2d Dept. 2012)

“[S]omething more than a bald assertion of forgery is required to create an issue of fact contesting the authenticity of a signature,” and Bauer’s “affidavit was alone inadequate to raise an issue of fact necessitating a trial” (Banco Popular N.A. v Victory Taxi Mgt., 1 NY3d 381, 384; see [*2]Seaboard Sur. Co. v Nigro Bros., 222 AD2d 574).”

Progressive wins the Mr. Five Boro award today

Eagle Surgical Supply, Inc. v Progressive Cas. Ins. Co., 2012 NY Slip Op 50151(U)(App. Term 2d Dept. 2012)

If it could go wrong it did.  There was probably no point of appealing this one.  Ask yourself this question: If you had to pay $1,500 to create a reproduced record, would you spend your client’s money on these facts?  The answer is probably obvious.

“However, in support of its motion for summary judgment dismissing the complaint, defendant also submitted two peer review reports of its chiropractor, to which plaintiff objected in its opposing papers on the ground that the reports were not in proper form, as they were affirmed (see CPLR 2106; High Quality Med., P.C. v Mercury Ins. Co., 29 Misc 3d 132[A], 2010 NY Slip Op 51900[U] [App Term, 2d, 11th & 13th Jud Dists 2010]). Although one of the peer review reports contained a notary public’s stamp and signature, it contained no attestation that the chiropractor had been duly sworn or that she had appeared before the notary public (see New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 32 Misc 3d 69 [App Term, 2d, 11th & 13th Jud Dists 2011]; cf. Furtow v Jenstro Enters., Inc., 75 AD3d 494 [2010]; Collins v AA Truck Renting Corp., 209 AD2d 363 [1994]). Consequently, this peer review report failed to meet the requirements of CPLR 2309 (b). Moreover, even if the documents submitted by defendant’s chiropractor had been in proper form, the affidavit of plaintiff’s osteopath submitted in opposition to defendant’s motion for summary judgment would have been sufficient to rebut the peer review reports and raise a triable issue of fact.”

An affidavit really is not an affidavit

New Millennium Psychological Servs., P.C. v Unitrin Advantage Ins. Co., 2011 NY Slip Op 21240 (App. Term 2d Dept. 2011)

“Plaintiff argues that the “affidavit” of its psychologist, submitted in opposition to defendant’s motion for summary judgment, was sufficient to raise a triable issue of fact. However, the “affidavit,” which contained a notary public’s stamp and signature, bore no caption and contained no attestation that the psychologist was duly sworn or that he had appeared before the notary public”

Well, the caption defect has to be rejected within two (2) days of receipt of the document.  The no attestation defect has to be objected to in the answering or reply papers, where appropriate.  Failure to properly object leads to the waiver of the objection.

The minimum that an affidavit must contain

Furtow v Jenstro Enters., Inc., 2010 NY Slip Op 05987 (2d Dept. 2010)

“Here, Ching submitted an affidavit which recited that he was “duly sworn” and contained a jurat stating that the affidavit was “sworn to before” a notary public, who signed and stamped the document. On the record presented here, the form of the affidavit was adequate (see Sirico v F.G.G. Prods., Inc., 71 AD3d 429; Sparaco v Sparaco, 309 AD2d 1029, 1030; Feinman v Mennan Oil Co., 248 AD2d at 504; Collins v AA Truck Renting Corp., 209 AD2d at 363).”

The affidavit at a minimum must say this: John Doe, DULY SWORN….

Sworn to before

notary public

[notary stamp]