Plaintiff moves for summary judgment. Plaintiff commenced this action against defendants to recover the sum of $5,299.87 plus interest at the rate of 18% and attorney fees of $1,324.97. Defendants deny liability for the debt through the affidavit of Dominick Melfi, officer and sole shareholder of the corporate defendant.

Plaintiff submits the affidavit of Christina Caubert who is a paralegal for plaintiff. Plaintiff attaches the two contracts which defendant allegedly signed in 2010 and 2011, to advertise in Yellow Book.

The 2010 contract, attached as Exhibit C, does not show that the contract was executed by defendant. However, defendants do not deny signing the 2010 contract, see paragraph 8 of Dominick Melfi's affidavit, dated November 21, 2014. Defendants question that the 2010 contract does not have a signature, but don't deny signing the agreement. Also as noted herein, plaintiff made payments on this contract.

The December 28, 2011 contract was executed by Dominick Melfi, for plaintiff, to publish defendants' print ads for the Oyster Bay 2013 publication, the Manhasset 2013 publication, the Glen Cove 2013 publication, the Nassau County 2013 publication and the Port Washington 2013 publication.

The 2010 contract provides for print ads for the Manhasset 2012 publication and the Nassau County 2012 publication.

Plaintiff states that the 2010 contract is a document maintained by plaintiff in the regular course of business. It is the procedure of plaintiff upon execution of each contract to have the original imaged into its database. Upon execution of each contract the salesperson submits the contract to the sales department who enters it into the system, creating an electronic file. The contracts are stamped with the received date and imaged date. The contract is scanned into the imaging system with unalterable electronic document format.

Ms. Caubert states that one of her duties is to maintain the scanned document repository for the account. She transmits the electronic copy of the contract to the attorney for litigation purposes.

Both the 2010 and 2011 contracts have similar provisions. The signature line reads as follows:

(Read paragraph 15 of the terms and conditions)

Paragraph 15 reads as follows:

Other pertinent provisions are as follows:

Paragraph 8 provides that the agreement can only be cancelled in writing given within 14 [*3]days after the agreement is executed.

Paragraph 14 is relevant because it provides that:

(1)An authentic copy or electronic reproduction of the agreement shall have the same effect as an original contact.

(2)The agreement supersedes all other verbal or written agreements.

(3)The agreement may not be changed except by a writing signed by an authorized signature of Yellow Book and the Customer.

Paragraph 15 provides for liability of the individual.

Above the signature line appears the following clause on both contracts:

The statement of account dated August 19, 2013 demonstrates that $7,480.08 was billed for the two contracts and $2,180.21 was paid, leaving a balance of $5,299.87.

Defendants made the following payments on the 2010 contract:

Defendants made the following payments on the 2011 contract:

Defendants claim that they don't owe the money claimed because "numerous payments over the years" were made. Defendants offer no specific proof on what was paid.

The controlling case on this subject is Yellow Book of NY, Inc. v. Shelley, 74 AD3d 1333, [*4]904 NYS2d 216 (2nd Dept 2010). In Yellow Book, the defendant Jack Shelley, President of 2 Shell Interiors, Inc., signed an advertising contract with Yellow Book which provided that the signatory was signing "Individually and for the Company." The advertising contract also referred to another clause making the signatory personally liable for full performance. The contract also provided no oral agreements could alter the contract terms.

The Second Department in Yellow Book of NY upheld the individual liability of the defendant president individually for the debt on the advertising contract because:

In the case at bar, the defendant Dominick Melfi accepted individual liability for full performance. Thus, based upon the rationale of Yellow Book v. Shelley, Mr. Melfi is personally liable on both contracts for the amount owed on the two contracts.

The payments made by defendants on both contracts conclusively show that they were signed by defendants and enforceable. Payments on the 2010 contract constitute an admission that the contract was valid and enforceable. Defendants fail to specifically deny that the 2010 contract was not signed by Mr. Melfi.

Defendant Mr. Melfi claims that he called the plaintiff to cancel on three occasions in September and October 2012 to cancel the advertising for the 2013 year.

The 2012 contract executed by the parties provides in paragraph 8 that the contract can only be cancelled in writing within 14 days after execution of the contract. Paragraph 14 provides that the contact cannot be changed unless in writing, signed by authorized [*5]representatives of the parties.

This court rejects defendants attempt to modify the contract orally when the agreement provides otherwise. No names of the representatives to whom Mr. Melfi spoke are provided.

Attempts to vary the written contract which is unambiguous by parol evidence is ineffective. See Moloney v. Weingarten, 118 AD2d 836, 500 NYS2d 320 (2nd Dept 1986), wherein the Court stated:

The Second Department in Yellow Book of NY v. Shelley, supra, also rejected defendant's attempts to vary the written agreement by parol evidence. Thus, any verbal modifications claimed by defendants are rejected.

Plaintiff is entitled to judgment for $5,299.87, plus interest at the rate of 18% interest (see paragraph 6 which provides for a late payment of 1.5% of the overdue payments). Also, plaintiff is entitled to attorney fees of 25% of the amount owed, see paragraph 12 of the agreement. The evidence submitted demonstrates that plaintiff is entitled to attorney fees of $1,322.00.

So Ordered:

DISTRICT COURT JUDGE