AJ Equity Group LLC (hereinafter "plaintiff") initiated this action by the filing of a Summons and Complaint in March of 2023 alleging that THE OFFICE CONNECTION, INC; SWIFT COMPUTER SUPPLY, INC; and OFFICE CONNECTION - ILLINOIS LLC (hereinafter "corporate defendants") and JOSEPH JACK MINC and KAREN ESTHER MINC (hereinafter "guarantor defendants") breached a sale of a receivables agreement (hereinafter "agreement") and seeking resultant damages.^[FN1] Defendant Karen E. Minc answered the complaint. Important to the issues herein, in her answer defendant Minc raised the defense of lack of jurisdiction and that she did not sign the agreement. The remaining defendants did not answer the complaint.

Plaintiff now moves for summary judgment. Defendant Minc moves to dismiss the complaint. For the reasons set forth below, the plaintiff's motion is granted as to the non-answering defendants and denied- without prejudice- as to defendant Minc. Defendant's Minc motion is denied, without prejudice.

A party seeking summary judgment pursuant to CPLR 3212 must make prima facie showing of entitlement to judgment as a matter of law and submit sufficient evidence to demonstrate the absence of any material issue of fact. (Iselin & Co. Inc v Landau, 71 NY2d 420 [1988].) Summary judgment may only be granted when "it has been clearly ascertained that there is no triable issue of fact outstanding; issue finding, rather than issue determination, is its function". (Suffolk County Dep't of Soc. Servs. v James M., 83 NY2d 178, 182 [1994].) Only [*2]when the proponent demonstrates entitlement to summary judgment, the opposing party must then demonstrate, generally by admissible evidence, the existence of an issue of fact requiring a trial. (Zuckerman v City of New York, 49 NY2d 851 [1985].)

Plaintiff submits the affidavit of Joshua Feig to establish the necessary foundation to admit the agreement and the defendants' remittance history as business records. The agreement and remittance history- and Mr. Feig's averment that plaintiff provided the purchase price and that the defendants defaulted- is sufficient for plaintiff to meet its initial burden on the 1st and 2nd causes of action in the Verified Complaint.

The corporate defendants and defendant Joseph Jack Minc did not submit any evidentiary submissions which would establish the existence of a material fact requiring a trial. Thus, summary judgment is awarded to the plaintiff on the 1st and 2nd causes of action. According to the terms of the agreement, plaintiff is entitled to $173,761.17 (representing the balance of the purchases receivables plus a default fee of $2,500 and an NSF fee of $150).

Defendant Karen E. Minc moves to dismiss the Complaint. Although the defendant does not delineate the statutory basis for her dismissal motion, it appears that the essence of her claim is that she did not sign the agreement. Thus, as alleged by the defendant, she did not consent to New York subject matter jurisdiction (as the agreement's terms stated New York law would apply), or personal jurisdiction (as the agreement allowed service of process by regular mail as opposed to service of process pursuant to the CPLR).^[FN3] In support of the motion, the defendant submits an affidavit in which she avers that she has never lived in the State of New York, she was not a party to the agreement, and she did not sign the agreement.

The agreement does not have a signature of Karen E. Minc. Instead, it has an "e-signature" The agreement contains a "signature certificate" which purports to show that a "Karen Minc" at an IP address located in Farmington Hills, Michigan consented to an e-signature [*3]through an email address of karen.minc@yahoo.com. The agreement contains data fields for social security number and driver license number, but both of those fields are blank.

The plaintiff does not provide an affidavit, or other admissible evidence, explaining the significance of the "signature certificate" to allow this Court to determine, as a matter of law, that the agreement contains Ms. Minc's signature or that it constitutes valid acceptance of the contract.

Instead, plaintiff cites to Sterling Nat'l Bank v. Alan B. Brill, P.C. (186 AD3d 515 [2nd Dept. 2020]). In Sterling, the Second Department dismissed a forgery claim noting "[t]he signature on the guaranty is similar to the signatures on the other loan agreement documents, which Brill admits he signed, and do not "differ enough ... to raise a triable issue of fact" (TD Bank, N.A. v. Piccolo Mondo 21st Century, Inc., 98 AD3d 499, 500, 949 N.Y.S.2d 444)." (Id. at 518.) Here, unlike in Sterling, there is no "pen and ink" signature to compare to the other documents signed. Another case cited by plaintiff Bank of New York Mellon v. West (183 AD3d 683 [2nd Dept. 2020] contained a notarized certificate of acknowledgment, notably absent from this case.

However, Ms. Minc did not meet her burden on her motion to dismiss. "A court may grant a motion seeking dismissal pursuant to CPLR 3211(a)(1) "only where the documentary evidence utterly refutes the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Meyer v. Zucker, 160 AD3d 1243, 1245, 75 N.Y.S.3d 325 [2018] [internal quotations marks, brackets and citations omitted], lv denied 32 NY3d 905, 2018 WL 4440633 [2018]; accord Lilley v. Greene Cent. Sch. Dist., 168 AD3d 1180, 1181, 90 N.Y.S.3d 661 [2019]; see Zeppieri v. Vinson, 190 AD3d 1173, 1175, 140 N.Y.S.3d 311 [2021]). To constitute such conclusive documentary evidence, "the evidence must be unambiguous" (Koziatek v. SJB Dev. Inc., 172 AD3d 1486, 1486, 99 N.Y.S.3d 480 [2019] [internal quotation marks and citations omitted]; accord New York Mun. Power Agency v. Town of Massena, 188 AD3d 1517, 1518, 137 N.Y.S.3d 520 [2020])." (Shephard v. Friedlander, 195 AD3d 1191, 1193 [3rd Dept. 2021].)

The defendant's affidavit, and the allegations contained therein, are not sufficient. ""Neither affidavits, deposition testimony, nor letters are considered documentary evidence within the intendment of CPLR 3211(a)(1)" (J.A. Lee Elec., Inc. v. City of New York, 119 AD3d 652, 653, 990 N.Y.S.2d 223 [internal quotation marks omitted]; see Porat v. Rybina, 177 AD3d 632, 633, 111 N.Y.S.3d 625; JBGR, LLC v. Chicago Tit. Ins. Co., 128 AD3d 900, 903, 11 N.Y.S.3d 83)."" (Davis v. Henry, supra at 597—98.)

Thus, defendant Minc's motion to dismiss must be denied.

The Court does not reach defendant Minc's arguments that the Court lacks jurisdiction. Those arguments are necessarily dependent upon whether Ms. Minc signed the agreement, and her affidavit is insufficient documentary evidence to establish that on a motion to dismiss. If plaintiff establishes that she did sign the agreement, as the agreement's terms dictated that the parties agreed on the New York jurisdiction provision and service by mail provision, those arguments are meritless. Parties are free to contractually waive the statutory rules regarding service of process. (See Alfred E. Mann Living Tr. v. ETIRC Aviation S.A.R.L.., 78 AD3d 137, 140 [1st Dept. 2010]: ". . . parties to a contract are free to contractually waive service of process (see e.g. Comprehensive Merchandising Catalogs, Inc. v Madison Sales Corp., 521 F2d 1210, 1212 [7th Cir 1975]; National Equip. Rental v DecWood Corp., 51 Misc 2d 999 [App Term 1966]; see generally 86 NY Jur 2d, Process and Papers § 7). By definition, such waivers render inapplicable the statutes that normally direct and limit the acceptable means of serving process [*4]on a defendant.")

Additionally, parties to a contract are typically free to enter into choice-of-law provisions that will be enforced by New York courts. (Ministers & Missionaries Ben. Bd. v. Snow, 26 NY3d 466, 470 [2015]: "We begin with the basic premises that courts will generally enforce choice-of-law clauses and that contracts should be interpreted so as to effectuate the parties' intent (see Welsbach Elec. Corp. v. MasTec N. Am., Inc., 7 NY3d 624, 629, 825 N.Y.S.2d 692, 859 N.E.2d 498 [2006]).

However, the Court will consider the motion to dismiss and its accompanying affidavits as evidence in opposition to the plaintiff's motion for summary judgment. Although generally a bald allegation of forgery is insufficient to defeat a motion for summary judgment, in this case Ms. Minc's denial of signature coupled with the plaintiff's failure to submit evidence, or even explain, relative to the e-signature certificate creates an issue of fact necessitating denial of the motion. Although e-signatures are considered valid in New York, the plaintiff's failure to explain the "signature certificate" prevents this Court from determining whether the procedures used complied with either the New York Electronic Signatures and Records Act (ERSA) (NY State Tech § 301 et seq.) or are sufficient for the Court to determine that defendant Karen Minc intended to be bound by the agreement. (See 15 U.S.C.A. § 7006 [5]: "[t]he term "electronic signature" means an electronic sound, symbol, or process, attached to or logically associated with a contract or other record and executed or adopted by a person with the intent to sign the record.")

Plaintiff's motion for summary judgment on the 3rd cause of action is denied, without prejudice to renew.

Based upon the foregoing, and the papers filed herein,^[FN4] it is hereby

ORDERED that plaintiff's motion for summary judgment on the 1st and 2nd causes of action is GRANTED; and it is further

ORDERED that plaintiff's motion for summary judgment on the 3rd cause of action is DENIED; and it is further

ORDERED that the defendant Karen E. Minc's motion to dismiss the Complaint is DENIED.