DECISION AND ORDER
Plаintiff Bazak International Corp. (“Ba-zak”), a textile merchandising company, brought this action in New York State Supreme Court against defendant Tarrant Apparel Group (“Tarrant”), a corporation also in the textile merchandising business. Tarrant removed the case to this Court on the basis of diversity jurisdiction,
see
28 U.S.C. § 1332, and the Court subsequently granted Tarrant’s motion to dismiss Ba-zak’s claim of unjust enrichment.
See Bazak International Corp. v. Tarrant Apparel Group,
I. BACKGROUND 1
On September 15, 2003, Tuvia Feldman (“Feldman”), the president of Bazak, met with Gerrard Guez (“Guez”), Tarrant’s Chief Executive Officer, in Tarrant’s New York office to discuss Bazak’s proposed purchase of certain jeans from Tarrant. During this meeting, Guez indicated that Tarrant had 1,600,000 pairs of jeans available to sell to Bazak. The parties allegedly agreed that, subject to Bazak’s receipt of a written inventory and visual inspection of the items in Tarrant’s warehouses in Los Angeles, Tarrant would sell Bazak the jeans at a price of between $3.00 and $3.50 per item, provided that Bazak would buy the entire inventory and take possession of the items by the end of the year.
On September 18, 2003, an employee of Tarrant sent Feldman an inventory list that detailed the merchandise Tarrant apparently planned to sell to Bazak. Following receipt of the inventory, Feldman and Avi Jacobi (“Jacobi”), an agent of R & I Trading of New York (“R & I”), 2 flew to Los Angeles on September 29, 2003 to inspect the merchandise. Feldman and Jacobi were taken to Tarrant’s office to meet with Guez, who indicated that they were to deal directly with Brian Buchan (“Buchan”) on the transaction.
When Feldman and Jacobi inspected the merchandise at Tarrаnt’s warehouse, they learned that approximately 700,000 of the pairs of jeans that Bazak had expected to purchase were not among the inventory and had been sold to a third party. This change in inventory altered the price Ba-zak was willing to pay per item. Consequently, Feldman and Jacobi spent two days spot-checking the merchandise to de
According to Bazak, Feldman sent Bu-chan a signed letter (“Exhibit 3”), dated October 3, 2003, whiсh purported to confirm the agreement between Guez and Feldman and detailed an inventory of 912,-714 items at $2.40 per item. Tarrant contests the authenticity of Exhibit 3 and alleges it was never received by Tarrant. The disputed Exhibit 3 addressed to Bu-chan reads:
As per our agreement with Mr. Gerrard Guez, we would like to inform you that Bazak International Corp. has purchased the total inventory of 912,714 pcs of assorted jeans and twills as per inventory submitted and calculated by yourself and your assistant on September 30, 2003. The total inventory purchased is 912,714 pcs at $2.40 per pcs totaling approx $2,190,513.60. Please send us a proforma invoice immediately in order for us to proceed in preparing our Letter of Credit. Please ship all the samples per your conversation with Mr. Jacobi to Bazak International Corp. at the address listed above.
The letter contains both a typed and handwritten signature of Feldman. (Affidavit of John Linville, dated February 4, 2005 (“Linville Aff.”), Ex. A at 1, attached as Part 6 of Defendant’s Motion for Summary Judgment, dated March 4, 2005 (“Def.Mot.”).)
Bazak has also produced another letter (“October 3 email”), also dated October 3, 2003, addressed to Buchan and sent via email by Gali Neufeld (“Neufeld”) of R & I on behalf of Feldman. 3 The e-mail’s subject line reads “Total Inventory Purchased,” and the electronically attached letter sent on Bazak letterhead states:
As per our agreement with Mr. Gerard Guez, we would like to inform you that Bazak International has bought the total inventory of 747,096 pcs per your Sep 30, 2003 inventory report less the following: Kohls men 8,000 pcs; Structure men 22,000 pcs; Express junior 10,000 pcs; Express missy 19,200 pcs. The total inventory purchased is 687,896 pcs. Please send us a proforma invoice in order for us to proceed in preparing our L/C. Please ship all samples per your cоnversation with Mr. Jacobi to Bazak International at the Address listed above.
The letter closes with Feldman’s typed signature. (Linville Aff., Ex. A at 2.) Bu-chan claims to recall neither seeing the email message nor opening its attachment. (Affidavit of Brian Buchan, dated February 2, 2005 (“Buchan Aff.”), ¶ 9, attached as Part 4 of Def. Mot.) Bazak alleges that it did not receive a reply to either letter.
On October 6, 2003, Tarrant sent Bazak eleven cartons of sample inventory with accompanying documentation but no in
The Complaint filed by Bazak in the instant action claimed that Tarrant and Bazak had a contract for the purchase of 912,712 specific inventory items at a price of $2.40 per item and that Tarrant breached the agreement when it sold the merchandise to David’s Place. Bazak further alleged that Tarrant was unjustly enriched by this sale. Following removal of the action to this Court and Tarrant’s motion to dismiss for failure to state a claim, Bazak amended its complaint with respect to its cause of action for breach of contract, attaching the Exhibit 3 letter. (See Am. Compl., dated June 11, 2004, ¶¶ 10, 17.) Bazak concurrently responded to Tarrant’s motion to dismiss. In a letter to the Court, Tаrrant disputed the authenticity of Exhibit 3. (See Letter from John Linville to the Court, dated June 25, 2004.) Tarrant subsequently filed a reply, voluntarily withdrawing its motion to dismiss as to the breach of contract claim until the authenticity of Exhibit 3 could be determined. The Court later granted Tarrant’s motion to dismiss Bazak’s claim of unjust enrichment. The Court also authorized discovery with regard to the parties’ dispute concerning Exhibit 3, following the completion of which Tarrant moved for summary judgment. The Court now considers the merits of Tarrant’s motion for summary judgment on Bazak’s breach of contract claim.
II. LEGAL STANDARD
To prevail on a motion for summary judgment pursuant to Federal Rule of Civil Procedure 56(c), the moving party must demonstrate that “the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a mаtter of law.” Fed.R.Civ.P. 56(c). A fact is material if it might affect the outcome of the suit under the governing law.
See Anderson v. Liberty Lobby, Inc.,
“[T]he parties rely exclusively on New York substantive law, and ‘where the parties have agreed to the application of the forum law, their consent concludes the choice of law inquiry.’”
3Com Corp. v. Banco do Brasil, S.A.,
A breach of contract claim under New York law “requires proof of (1) a contract;
Tarrant presents two grounds for its summary judgment motion. Neither is sufficiently supported by the record. First, Tarrant contends that the alleged contract violates the Statute of Frauds. Specifically, Tarrant argues both that the October 3 e-mail does not fulfill the “merchant’s exception” requirements and that the Exhibit 3 letter cannot be admitted as evidence of an alternative writing. (Def. Mem. at 11.) The Court disagrees, and finds that the October 3 e-mail satisfies the New York Uniform Commercial Code (“UCC”) statutory requirements that present questions of law. The remaining issues raise questions of fact as to which Bazak has produced sufficient evidence on the basis of which a reasonable jury cоuld find in its favor.
Second, Tarrant maintains that the contract alleged by Bazak is unenforceable because it lacks essential prerequisites of a contract, such as possibility of performance and mutual assent. (Def. Mem. at 18.) However, similar to Tarrant’s arguments pertaining to the Statute of Frauds, the force of these claims depends on the resolution of factual questions. Consequently, the Court cannot properly grant Tarrant’s motion for summary judgment.
III. DISCUSSION
A. THE ALLEGED CONTRACT DOES NOT VIOLATE THE STATUTE OF FRAUDS
Tarrant has failed to demonstrate the absence of any genuine issue of material fact concerning the applicability of the Statute of Frauds. The UCC sale of goods provision states:
Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
N.Y. U.C.C. Law § 2-201(1). While neither party contends that a written contract was formed, Bazak asserts that the parties’ agreement falls within the UCC’s “merchant’s exception.” This exception provides:
Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten days after it is received.
N.Y. U.C.C. Law § 2-201(2).
In
Bazak International Corp. v. Mast Industries, Inc.,
the New York Court of Appeals directly addressed the issue of the adequacy of a writing necessary to enable an alleged oral contract to withstand the Statute of Frauds.
1. E-mails Can Satisfy the ‘Writing” Requirement
Tarrant contends that Bazak’s October 3 e-mail cannot satisfy UCC Section 2-201(2)’s “writing in confirmation” requirement because the statute does not specifically mention e-mail as a recognized form of writing. (Defendant’s Reply Memorandum in Support of Motion for Summary Judgment, dated March 4, 2005 (“Def.Reply”), at 7.) However, the October 3 e-mail does, as a matter of law, satisfy this element.
See Mast Industries,
Although e-mails are intangible messages during their transmission, this fact alone does not prove fatal to their qualifying as writings under the UCC. Aside from posted mail, the forms of communication regularly recognized by the courts as fulfilling the UCC “writing” requirement, such as fax, telex and telegraph, are all intangible forms of communication during portions of their transmission. Just as messages sent using these accepted methods can be rendered tangible, thereby falling within the UCC definition, so too can e-mails.
See
Deborah L. Wikerson,
Electronic Commerce Under the U.C.C. Section 2-201 Statute of Frauds: Are Electronic Messages
Enforceable?, 41 U. Kan. L.Rev. 403, 412 (1992). Additionally, because “[ujnder any computer storage method, the computer system ‘remembers’ the message even after being turned off,” whether or not the e-mail is eventually printed on paper or saved on the server, it remains an objectively observable and tangible record that such a confirmation exists.
Id.
at 412. Consequently, there
Moreover, the policy motivation behind the UCC and its adoption in New York, as well as the Second Circuit’s generally liberal view toward Section 2-201(2)’s construction, suggest that the electronic form of an e-mail “writing” does not as a rule preclude enforcement of the underlying agreement.
See Apex Oil Co. v. Vanguard Oil & Service Co.,
At the same time, the UCC drafters, in attempting to promote predictable and dependable business practices, endeavored to set forth clear, practical rules in line with the real pace and practices of the commercial world.
See id.,
Arguments in favor of a more strict reading of the UCC requirements — arguments clearly rejected by the New York Court of Appeals in
Mast Industries
— are no more compelling in a case concerning email confirmation than those based on more traditional forms of correspondence. While the possibility that a party could create a “binding contract simply by dispatching unsolicited [writings], thus unfairly disadvantaging the recipient” exists, the risk run is no greater with e-mails than with other forms of transmission.
Id.,
[W]e recognize that we are permitting a substantial transaction to be consummated on fragmentary conversation and documentation. However, it is the practice in many fields to transact business quickly and with a minimum of documentation .... Parties doing business with each other in such circumstances take the risk that their conflicting versions of conversations will be resolved to their disfavor by a fact-finder whose findings, even if incorrect, are immune from appellate revision.
Apex Oil,
The October 3 e-mail put forward by Bazak is distinguishable from messages at issue in other cases that were held insufficient to satisfy the Statute of Frauds. Two recent cases in this District provide apt comparisons. In
S & S Textiles International v. Steve Weave, Inc.,
the court granted the plaintiffs motion for summary judgment, holding that the modification of
In comparison, the October 3 e-mail at issue here in substance is sufficient to meet the requirements of the Statute of Frauds,
see infra
Part II.A.2-5;
see also Mast Industries,
Likewise, the case at bar is distinguishable from
Sel-Leb Marketing, Inc. v. Dial Corp.,
where the court granted defendant’s motion to dismiss, finding the offered email “writing” to be insufficient. No. 01 Civ. 9250,
In contrast to the e-mails rejected in Sel-Leb under the UCC section applicable in that case, Section 1-206, the October 3 e-mail need only be sufficient against the sender, Bazak, under the “merchant’s exception.” See N.Y. U.C.C. Law § 2-201(2). As discussed below, thе October 3 e-mail satisfies this requirement. Further, that e-mail deals exclusively with the parties’ transaction, explicitly refers to a specific conversation between the parties and outlines in detail the merchandise at issue. In addition, while both the October 3 email and those in SeT-Leb omit the price term, only UCC Section 1-206, which is inapplicable in the case at bar, requires such a term. 4
Finally, as in
S & S Textiles,
the key point in
Sel-Leb
is that the court considered the e-mails as writings that might potentially satisfy the Statute of Frauds, and rejected them for their substantive
The notable lack of discussion concerning the ability of e-mail to stand as a “writing” in both S & S Textiles and Selr-Leb may be explained in part by the adoption in 2000 of 15 U.S.C. Section 7001. The federal provision states:
Notwithstanding any statute, regulation, or other rule of law ... with respect to any transaction in or affecting interstate or foreign commerce — (1) a signature, contract, or other record relating to such transaction may not be denied legal effect, validity, or enforceability solely because it is in electronic form; and (2) a contract relating to such transaction may not be denied legal effect, validity, or enforceability solely because an electronic signature or electronic record was used in its formation.
15 U.S.C. § 7001(a). The widespread interest in permitting otherwise substantively sufficient e-mails to stand as “writings,” as evidenced by Section 7001’s adoption, supports this Court’s finding to the same effect.
2. The October 3 E-mail Satisfies the Signature Requirement
While UCC Section 2-201(2) does not explicitly state that a signature is necessary for a writing to be “sufficient against the sender,” language in
Mast Industries
hints that it may be so required.
Mast Industries,
“Signed” is meant to include “any authentication which identifies the party to be charged.” N.Y. U.C.C. Law § 2-201 official comments. The official commentary to the statutory language elaborates:
The inclusion of authentication in the definition of “signed” is to make clear that as the term is used in this Act a complete signature is not necessary. Authentication may be printed, stamped or written; it may be by initials or by thumbprint. It may be on any part of the document and in appropriate cases may be found in a billhead or letterhead .... The question always is whether the symbol was executed or adopted by the party with present intention to authenticate the writing.
N.Y. U.C.C. Law § 1-201 official cmt. 39.
Since Bazak’s President’s typed signature appears at the signatory line of the attached letter and the letter is typed on Bazak company letterhead, the writing is “sufficient against the sender.”
See Mast Industries,
3. The October 3 E-mail Can Be Construed As “In Confirmation” Of An Earlier Agreement
The October 3 e-mail also satisfies the UCC requirement of a writing “in confirmation” of an earlier agreement. To survive summary judgment, the writing need only be “sufficient to indicate that a contract for sale has been made.”
Mast Industries,
The October 3 e-mail satisfies this legal standard in that it provides a sufficient basis for belief that its message rests on a real contract. The e-mail contains the requisite quantity term, though the parties dispute whether the figure is misstated. (See Linville Aff., Ex. A at 2.) Additionally, while the message lacks a price quote, this omission is not fatal under Section 2-201.
4. A Jury Could Find That the Writing was Received and That the Receiving Party Had Reason to Know of Its Contents
Whether receipt of a confirmatory writing has occurred is a question of fact, inappropriately determined on summary judgment. See Williston on Contracts § 29:27. Though the UCC does not define “receipt” in the context of a confirmatory writing, it provides a definition of “receipt of notice.” Williston on Contracts § 29:27. Section 1-201(26) states:
A person “receives” a notice or notification when: (a) it comes to his attention; or (b) it is duly delivered at the place of business through which the contract was made or at any other place held out by him as the place for receipt of the communications.
N.Y. U.C.C. Law § 1-201(26).
Further, the requirement of having “reason to know of its contents” is satisfied when “from all the facts and circumstances known to him at the time in question he has reason to know that it exists.” N.Y. U.C.C. Law § l-201(25)(c); Williston on Contracts § 29:27.
Disputes concerning both receipt and reason to know raise questions of fact. Therefore, the Court must only determine whether Bazak has presented evidence sufficient to create a genuine issue of material fact as to these elements. See Fed. R.Civ.P. 56. The Court is persuaded that Bazak has put forth facts that demonstrate a genuine issue of material fact as to each. Neither party disputes that the October 3 e-mail appeared in Buchan’s inbox and was thereby received in the technical sense. Nonetheless, Tarrant contends that Bu-chan has no recollection of opening the email or its attachment and that the e-mail was therefore not constructively received. (Buchan Aff. ¶ 9.) However, this assertion more appropriately addresses the issue of Buchan’s “reason to know” of the contents оf the writing — reason to know to open the e-mail — than actual receipt of it. See Section 2-201(2). In spite of Tarrant’s argument, the Court finds that the October 3 email satisfies the UCC definition of receipt of notice set forth in UCC Section 1-201(26), as it sufficiently came “to [Bu-chan’s] attention” and also was “duly delivered at the place of business through which the contract was made.” N.Y. U.C.C. Law § l-201(26)(a).
Nonetheless, whether e-mail is an appropriate and reasonably expected form of communication between the two particular parties before the court is a question of fact. Here, the issue’s resolution requires a factual inquiry into trade usage and course of dealing.
See Williston on Contracts
§ 34:19. Construing facts in the light most favorable to the non-movant, Bazak has demonstrated the existence of a genuine issue of material fact concerning this question. Neither party directly addresses whether e-mail is an appropriate method of communication in the re-sale trade generally or in Tarrant and Bazak’s particular relationship. Yet later e-mail
Further, Bazak has put forth evidence that demonstrates a genuine issue of material fact as to whether Buchan had reason to know of the October 3 e-mail’s contents “from all the facts and circumstances known to him at the time in question.” N.Y. U.C.C. Law § l-201(25)(c). In particular, Bazak has offered evidence demonstrating that Buchan may have had reason to know, at least generally, what the email’s subject and purpose would be. A jury certainly could find the October 3 email’s title, “Total Inventory Purchased,” sufficiently specific to put Buchan on notice of its contents given his contemporary role in the transaction, despite his alleged ignorance of the sender. (See Linville Aff., Ex. A; Buchan Aff. ¶ 9.) Moreover, since Buchan’s primary responsibility at Tarrant is to sell available merchandise, a jury could find it unlikely Buchan would think that an e-mail so titled was spam and did not require his personal attention. (Bu-chan Aff. ¶ 2.) Buchan had also met previously with a representative from R & I, the company-sender of the e-mail, although he states he did not recognize the sender. (Buchan Aff. ¶ 3.) Therefore, construing all facts in favor of Bazak, a genuine issue of material fact remains.
5. A Jury Could Find That the Writing Was Retained Without Objection
Similarly, the dispute as to whether the October 3 e-mail was retained without objection is a question of fact. See Williston on Contracts § 29:27. In the case at bar, the parties’ fаctual dispute as to what form of response constitutes objection requires consideration of trade usage. Ba-zak has provided sufficient evidence of resale merchant trade practices to buttress its contention that Tarrant’s asserted objection was not of a recognized form. (Plaintiffs Memorandum of Law in Opposition to Defendant’s Motion for Summary Judgment, dated Feb. 25, 2005 (“PL Mem.”), at 24.) Specifically, Bazak argues that Tarrant’s alleged objection manifested by the terms of its October 7, 2003 inventory report is without force. The inventory report does not express unequivocal objection and in light of trade practice in the re-sale industry, where parties allow the quantities of goods to shift continuously, Bazak would not reasonably take the sending of that report as such absent this clear expression. (Affidavit of Tuvia Feld-man, dated February 25, 2005 (“Feldman Aff.”), ¶¶ 18, 25, 32; Affidavit of Abraham Jacobi, dated February 25, 2005 (“Jacobi Aff.”), ¶¶ 15-19.) Thus, construing all facts in favor of Bazak, the Statute of Frauds does not, as a matter of law, preclude the Court from finding a contract to exist between Bazak and Tarrant.
B. THE OTHER REQUIREMENTS FOR A VALID CONTRACT ARE SUFFICIENTLY DEMONSTRATED
While the applicability of the Statute of Frauds defense is a threshold matter in many contract cases, survival on this matter does not eliminate the need to prove a contract.
Mast Industries,
However, construing all facts in favor of Bazak, Tarrant’s motion fails. The oral agrеement alleged by Bazak to underlie the October 3 e-mail is an informal contract that requires a “bargain in which there is a manifestation of mutual assent to the exchange and a consideration.” Williston on Contracts § 3:2. Tarrant has not demonstrated the absence of all genuine issues of material fact concerning these requirements.
1. The Alleged Contract Is Not Invalid on Account of Impossibility
Although Tarrant contends that the performance referred to in the October 3 email is impossible and thus demonstrative of the contract’s fabrication, possibility of performance is not essential to the formation of a contract. Notwithstanding that impossibility may “give rise to nonenforcement of the resulting agreement ... the mere fact that the parties have contracted to do an impossible thing will not necessarily prevent enforcement by way of remedy. Thus, the resulting obligation is рroperly defined as a contract.”
Williston on Contracts
§ 3:2. While Tarrant’s contention, if true, may create a presumption that the alleged contract indeed does not exist, the existence of a contract is a factual determination.
See Dickson v. Mitchell,
Bazak provides sufficient evidence for a fact-finder to conclude that the alleged agreement underlying the October 3 e-mail is possible. Specifically, Bazak points to the circumstances of Tarrant’s sale to David’s Place to demonstrate the constant fluctuation of precise quantities at issue in any particular re-sale contract and thus of the irrelevance of “impossibility” at any one point in the relationship. (Feld-man Aff. ¶¶ 18, 25, 32; Jacobi Aff. ¶¶ 15-19.) This is sufficient to demonstrate a genuine issue of material fact concerning the issue of trade usage, and therefore, of impossibility.
2. A Jury Could Find the Existence of Mutual Assent
Even while asserting a contract under UCC Section 2-201(2), parties must still demonstrate the element of mutual assent.
Mast Industries,
Construing evidence in the light most favorable to the non-moving party, Bazak’s actions demonstrate sufficient objective assent for a reasonable jury to find intent to form a contract. Specifically, the “confirmatory” e-mail sent on October 3 creates a genuine issue of material fact as
While there are potential discrepancies between the October 3 e-mail and other documentation allegedly pertaining to the same sale, these are not necessarily fatal to Bazak’s claim of assent. In
Mast Industries,
the New York Court of Appeals explained that not all parts of the proffered document must make sense in order for a non-moving party to survive summary judgment.
See
Most importantly, under the UCC, terms
set
forth in the confirmatory writing may be “explained or supplemented ... by course of dealing оr usage of trade or by course of performance.” N.Y. U.C.C. Law § 2-202.
7
Usage of trade is relevant not only to the interpretation of express contract terms, but may also itself constitute contract terms.
Aceros Prefabricados, S.A. v. TradeArbed, Inc.,
The court finds that Bazak has presented adequate evidence to demonstrate a genuine issue of fact concerning trade usage that, if found by a jury, could demonstrate the company’s intent to be bound. In particular, Bazak disputes that the apparent inconsistency between the parties’ understandings of the quantity of goods available for purchase or the “impossibility” of the alleged sale demonstrates a lack of mutual assent. Instead, Bazak argues that daily changes in the availability of goods for sale require transactions in the closeout re-sale textile industry to fluctuate constantly. (Feldman Aff. ¶¶ 18, 25, 32; Jacobi Aff. ¶¶ 15-19.) As a result, it is common practice within the trade to quote a quantity, fully conscious that at the point of performance, the exact quantity may be different. Having put forth evidence to this effect, Bazak has demonstrated a gen
Bazak has also presented adequate evidence to create an issue of fact concerning Tarrant’s manifested and expressed assent to the alleged agreement. Although Tar-rant argues that its constant refusal of Bazak’s requests for purchase orders, as well as its failure to perform the in-house procedures required for the re-sale transaction, demonstrate it had not yet assented, Bazak provides sufficient contradictory evidence to raise a question of fact. In particular, Bazak contends that the GMAC e-mail forwarded to it by Tarrant, along with the remark made to Bazak’s officer by Tarrant’s agent, Guez, demonstrate sufficient assent. (PI. Mem. at 8, 19, 20, 25; Def. Reply at 2; Affidavit of Ron Yeffet, dated February 23, 2005 (“Yeffet Aff.”), ¶ 7.) Bazak also disputes Tarrant’s assertion that the issuance of purchase orders prior to the formation of an oral agreement or creation of a “confirmatory writing” is standard re-sale industry practice. (Feldman Aff. ¶ 24; Jacobi Aff. ¶ 18.) In addition, Bazak contends it had been told by Buchan that pro-forma invoices were “forthcoming.” (Feldman Aff. ¶ 29.) Together, construing these facts in favor of Bazak, there is adequate evidence to demonstrate a genuine issue of material fact. This precludes the Court from granting summary judgment.
C. EXHIBIT 3 SATISFIES THE THRESHOLD REQUIREMENTS OF RELEVANCE AND AUTHENTICITY TO SURVIVE SUMMARY JUDGMENT
Tarrant contends that the Exhibit 3 letter offered by Bazak as a “writing in confirmation” of an earlier agreement is inauthentic and therefore inadmissible. However, Exhibit 3 survives the threshold determination of authenticity as a matter of law.
See United States v. Ruggiero,
The principles governing admissibility of evidence apply equally on a motion for summary judgment as in a trial.
See Raskin v. Wyatt Co.,
Exhibit 3 likewise overcomes the Court’s threshold determination of authenticity as a matter of law. Federal Rule of Evidence 901(a) states: “[t]he requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” Fed.R.Evid. 901(a).
This threshold determination is relatively low, as evidence is admissible as authentic “if sufficient proof has been introduced so that a reasonable juror could find in favor of authenticity or identification.”
Ruggiero,
Once the court determines that the proponent of the evidence meets the threshold, the evidencе may be admitted and any outstanding issues regarding its authenticity are to be resolved by the fact-finder.
See Raskin,
IV. CONCLUSION
For the reasons set forth above, Tarrant has failed to demonstrate the absence of genuine issues of material fact necessary to prevail on a motion for summary judgment. The October 3 e-mail is a legally cognizable “confirmatory writing” under the UCC “merchant’s exception.” The remaining Section 2-201(2) elements of receipt and objection are questions of fact as to which Bazak has put forth sufficient evidence for the fact-finder to conclude in its favor. In addition, Bazak has provided adequate proof of mutual assent for a reasonable jury to find its existence. Finally, Bazak’s submission of Exhibit 3 is supported by enough evidence of its relevance and authenticity to be sent to the jury for final determination. Therefore, Tarrant’s motion for summary judgment is denied.
V. ORDER
For the reasons stated above, it is hereby
ORDERED that the motion of defendant, Tarrant Apparel Group, for summary judgment on the breach of contract claim is DENIED; and it is hereby further
ORDERED that the parties appear at a conference on July 29, 2005 at 1:30 p.m. to discuss remaining pretrial proceedings.
SO ORDERED.
Notes
. The factual summary derives from the representations of the parties in their submissions. The Court "construe[s] the facts in the light most favorable to the non-moving party and must resolve all ambiguities and draw all reasonable inferences against the movant.”
Williams v. R.H. Donnelley, Corp.,
. R & I originally planned to purchase merchandise from Tarrant jointly with Bazak. Instead, however, it entered into a separate agreement with Bazak whereby Bazak would re-sell Tarrant's goods to R & I.
. In an opinion granting Tarrant’s motion to dismiss Bazak's claim of unjust enrichment, the Court characterized the October 3 e-mail as "unsigned.” However, the legal adequacy of the e-mail was not the subject of that opinion, and the characterization of the email as "unsigned” was not in reference to the legal definition of "signature” under the UCC. Instead, it was employed solely as a descriptive term making use of its commonplace meaning of lacking a handwritten signature. As explained in Part III.B, the October e-mail satisfies the UCC’s requirement of a signature.
. Compare UCC Seсtion 1-206(1) ("at a defined or stated price”) with Section 2-201(2).
. But such a "contract is not enforceable under this paragraph beyond the quantity of goods shown in such a writing.” N.Y. U.C.C. Law § 2-201(1).
. The court in American Plastic was interpreting, the New Jersey UCC statute, which is identical to New York’s provisions.
. The phrase is further defined as "any practice or method of dealing having such regu-Iarity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question.” N.Y. U.C.C. Law § 1-205.
. While not dispositive on the issue of Exhibit 3’s authenticity, the Court notes that the affidavit of Robert Gezelter ("Gezelter’') submitted by Bazak is inadmissible to support Exhibit 3’s authenticity. (See Affidavit of Robert Gezelter, dated February 24, 2005 ("Gezelter Aff.”).) Bazak has submitted no claim that Gezelter be considered an expert witness, nor has it fulfilled any of the procedures necessary to expert discovery. See Fed.R.Civ.P. 26. As a result, the Court determines the admissibility of Gezelter’s affidavit under Federal Rule of Evidence 701. Federal Rule of Evidence 701 states:
If the witness is not testifying as an expert, the witness' testimony in the form of opinions or inferences is limited to those opinions or inferences which are (a) rationally based on the perception of the witness, (b) helpful to a clear understanding of the witness’ testimony or the determination of a fact in issue, and (c) not based on scientific, technical, or other specialized knowledge within the scope of Rule 702.
Fed.R.Evid. 701. Gezelter's affidavit fails these criteria. It provides no "firsthand knowledge or observation” of Bazak’s computer as required by Rule 701(a). Fed. R.Evid. 701 advisory committee’s note; (Gez-elter Aff. ¶¶ 9-10.)
The affidavit also directly contravenes the restriction of 701(c), since it pertains exclusively to specialized and technological knowledge of computers. Fed.R.Evid. 701 advisory committee's note; (Gezelter Aff. ¶¶ 1, 15-19, 20-21.)