Civil Court of the City of New York, Richmond County, September 10, 2021

Tenaglia & Hunt for plaintiff.

Jennifer Narvaez, defendant pro se.

The decision on plaintiff's motion for summary judgment is as follows:

Plaintiff Citibank, N.A., commenced this action against defendant Jennifer Narvaez with a summons and complaint dated September 1, 2020, alleging various causes of action relating to a breach of a credit card agreement between the parties. Defendant previously filed an in-person answer with the court on November 4, 2020, and issue was joined.

Plaintiff filed the instant motion for summary judgment on May 10, 2021, with an initial return date of June 9, 2021, and the defendant was referred to CLARO (Civil Legal Advice and Resource Office) for legal assistance. A second rescheduling order was issued on July 14, 2021, directing the parties to appear in person on August 25, 2021. Prior to the final return date, defendant submitted an unsworn, unsigned, and undated affirmation in opposition.^[FN*] The parties appeared before the court on August 25, 2021, and the motion was deemed submitted.

For the reasons set forth below, the motion is rejected on procedural grounds.

The plaintiff's moving papers, specifically the notice of motion, affirmation in support, and memorandum of law, were purportedly signed by plaintiff's attorney with a typed "/s/Jason Kim, Esq./s/" (the /s/ signature) in lieu of a handwritten or "wet" signature. The motion papers were filed in person with the court rather than electronically through the court's electronic document delivery system (EDDS).{**73 Misc 3d at 711}

The court notified plaintiff's counsel that the motion papers were not properly signed. However, the attorney appearing before the court was not the same attorney who submitted the motion papers. Therefore, plaintiff could not "promptly correct" the signature after being notified by the court pursuant to Rules of the Chief Administrator of the Courts (22 NYCRR) § 130-1.1a (a). After the court inquired how counsel wanted to proceed (i.e., withdraw the motion, request adjournment, or other relief), counsel requested that the motion be deemed submitted for decision.

Upon consideration and for the reasons set forth below, the court finds the /s/ signature offered by the plaintiff's attorney is insufficient to qualify as an e-signature.

Section 130-1.1a of the Rules of the Chief Administrator of the Courts (22 NYCRR) directs:

"(a) . . . Every pleading, written motion, and other paper, served on another party or filed or submitted to the Court shall be signed by an attorney, or by a party if the party is not represented by an attorney, with the name of the attorney or party clearly printed or typed directly below the signature. Absent good cause shown, the court shall strike any unsigned paper if the omission of the signature is not corrected promptly after being called to the attention of the attorney or party.

"(b) . . . By signing a paper, an attorney or party certifies that, to the best of that person's knowledge, information and belief, formed after an inquiry reasonable under the circumstances:

"(1) the presentation of the paper or the contentions therein are not frivolous as defined in section 130-1.1(c) of this Subpart; and

"(2) where the paper is an initiating pleading:

"(i) the matter was not obtained through illegal conduct, or that if it was, the attorney or other persons responsible for the illegal conduct are not participating in the matter or sharing in any fee earned therefrom; and

"(ii) the matter was not obtained in violation of Part 1200, Rule 4.5 of this Title" (emphasis added).

Subpart 130-1 also authorizes the court to assess costs and sanctions on conduct inconsistent with court rules. The court is justified in rejecting the papers of an attorney who does not{**73 Misc 3d at 712} sign the document or who uses a signature that cannot be attributed to her or him since that could impede the assessment of such penalties. Indeed, it is possible that in order to avoid sanctions, an attorney might argue that a paralegal or staff member used the /s/ signature without the attorney's authorization. In this instance, there is no indication of who placed the /s/ signature on the document.

Furthermore, the motion documents for this matter were filed by paper copy with the court. While the court recognizes that new office procedural hurdles have been injected into the practice of law by the COVID-19 pandemic, there was no deadline that would have prevented the plaintiff's attorney from physically signing the paper copy of the motion prior to submission. Therefore, the court cannot see a reason why an original signature could not have been employed since the motion was filed by paper copy with the court rather than electronically.

The court recognizes that electronic signatures are permissible in New York State. The Electronic Signatures and Records Act (ESRA) directs that "[t]he use of an electronic [*3]signature shall have the same validity and effect as the use of a signature affixed by hand" (State Technology Law § 304 [2]). An electronic signature is defined as "an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record" (State Technology Law § 302 [3]). Of particular importance to this court is the phrase "executed or adopted by a person with the intent to sign the record." It is up to the signer to make some representation of that intent.

The ESRA required the Office of Information Technology Services (ITS) to establish rules governing the use of electronic signatures (9 NYCRR 540.1 [a]). The ITS has published guidelines (Off of Info Tech Servs Guideline No. NYS-G04-001 [updated May 4, 2021]) that provide different methods to demonstrate the signer's intention to sign the document. None of those methods were used by the plaintiff's attorney who used the /s/ signature. While the attorney may have used a symbol (the /s/ signature) there was no indicia of his intent to sign the document electronically by using the symbol. Therefore, the /s/ signature was not a valid signature.

While the Uniform Rules for Trial Courts do provide for e-signatures in cases filed through the New York State Courts Electronic Filing System (NYSCEF), those rules do not apply{**73 Misc 3d at 713} in this case where hard copies were filed with the court and not electronically filed (22 NYCRR 202.5-b).

Finally, other courts in this state have shown reluctance to allow electronic signatures where there was no indication as to the signer's intent. The Second Department has rejected opposition papers that contained "computerized, affixed, or stamped facsimiles of the physician's signature" (Vista Surgical Supplies, Inc. v Travelers Ins. Co., 50 AD3d 778, 778 [2d Dept 2008]). The Court in Vista Surgical Supplies held that the physician's reports were "not subscribed and affirmed, but merely contained facsimiles of the physician's signature without any indication as to who placed them on the reports, nor are there any indicia that the facsimiles were properly authorized" (id.).

Similarly, the Appellate Term has relied on the decision in Vista Surgical Supplies to reject electronically signed documents that did not demonstrate that the signature was placed at the signer's direction (Rogy Med., P.C. v Mercury Cas. Co., 23 Misc 3d 132[A], 2009 NY Slip Op 50732[U] [App Term, 2d Dept, 2d, 11th & 13th Jud Dists 2009]). Lastly, at least one court has found that the "inadmissibility of 'affirmations' with facsimile signatures is well-grounded in the Second Department, both before and since its ruling in Vista Surgical Supplies (50 AD3d 778), and should be known to attorneys that practice regularly in the courts within the Department" (Eill v Morck, 37 Misc 3d 1211[A], 2012 NY Slip Op 51996[U], *4 [Sup Ct, Kings County 2012]). The same is true in this instance.

For these reasons, pursuant to the Rules of the Chief Administrator of the Courts, the court rejects plaintiff's moving papers that contained an /s/ signature by the plaintiff's attorney.

In this matter, the affirmation in support by the plaintiff's attorney is the vehicle used to detail the procedural posture of the case and introduce into evidence the summons and complaint, the affidavit of service of the summons and complaint, and the defendant's answer. Once the unsigned affirmation is rejected, the plaintiff cannot establish jurisdiction or any cause of action upon which summary judgment could be granted. Therefore, the motion papers cannot stand without the attorney's affirmation.{**73 Misc 3d at 714}

Accordingly, plaintiff's motion is rejected as defective without reaching, considering, or addressing the contentions raised in them.