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^.”