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Parma Tile Mosaic & Marble Co. v. Estate of Short

Court of Appeals of New York

February 20, 1996, Decided ; January 9, 1996, Argued and Submitted

No. 20


 [*526]  [**633]  [***477]    Smith, J.

The issue presented on this appeal is whether the automatic imprinting, by a fax  [**634]   [***478]  machine, of the sender's name at the top of each page transmitted, satisfies the requirement that a writing be subscribed under New York State's general Statute of Frauds (General Obligations Law § 5-701). We reverse the order of the Appellate Division because we conclude that a subscription requires an act to authenticate the writing as defendant's. Defendant did not so subscribe the writing in this case.

In September 1989, Sime Construction Co. (Sime), a subcontractor, sought to purchase from plaintiff a large quantity of ceramic tile for use in a construction project. When plaintiff expressed reluctance to enter into such a large contract without a guaranty, Sime suggested that plaintiff approach MRLS Construction Corporation (MRLS), the general contractor on the project, for a guaranty of payment. Plaintiff contacted MRLS and after several discussions, MRLS faxed a document to plaintiff which plaintiff asserts is a guaranty. MRLS contends that it merely transmitted an unsubscribed proposal for [****5]  a guaranty by fax.

Plaintiff's copy of the document bore a heading at the top of each page which indicated the name "MRLS Construction," a telephone number, the date and time, an unidentified number and a page number. It is undisputed that sometime before sending the document at issue, MRLS had programmed its fax machine to automatically imprint this information on every transmitted page. By this method, the heading would appear only on the recipient's faxed copy, not on the originating document. The two-page fax document in issue was not preceded by a cover letter or any other identifying document.

After the facsimile transmission, plaintiff began furnishing Sime with quantities of ceramic tile. When Fred Short, the principal of Sime, died in April 1990, plaintiff sought payment for Sime's outstanding invoices from MRLS. MRLS refused to make payment on the ground that the document was not an enforceable guaranty.

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87 N.Y.2d 524 *; 663 N.E.2d 633 **; 640 N.Y.S.2d 477 ***; 1996 N.Y. LEXIS 115 ****

Parma Tile Mosaic & Marble Co., Inc., Respondent, v. Estate of Fred Short, Doing Business as Sime Construction Co., Defendant, and MRLS Construction Corp., Appellant.

Prior History:  [****1]   Appeal, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the Second Judicial Department, entered November 14, 1994, which affirmed a judgment of the Supreme Court (Alan LeVine, J.), entered in Queens County, in favor of plaintiff and against defendant MRLS Construction Corp., upon an order of that court upon reargument (Alan LeVine, J.; see, 155 Misc 2d 950), granting a motion by plaintiff for summary judgment on its third cause of action, severing that cause of action from the remaining causes of action of plaintiff's complaint, directing entry of judgment against defendant MRLS Construction Corp., and denying a cross motion by defendants for summary judgment.

 Parma Tile Mosaic & Marble Co. v Estate of Short, 209 AD2d 495, reversed.

Disposition:  Construction Corporation dismissed.


fax machine, fax, authenticate, subscription, Obligations, transmitted, subscribed, guaranty, promise, cause of action, programmed, imprinted

Business & Corporate Compliance, Contracts Law, Contract Formation, Execution & Delivery, Contracts Law, Statute of Frauds, General Overview, Consideration, Mutual Obligations, Requirements, Writings, Evidence, Authentication, Affirmative Defenses, Fraud & Misrepresentation