Commercial Litigation and Arbitration

Email May Constitute “Signed Writing” within Statute of Frauds

Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Birnbaum, 2011 N.Y. Misc. LEXIS 6836 (Sup. Ct. N.Y. Cnty. May 5, 2011):

In this action to recover for attorneys' fees allegedly due and owing, defendants Arthur ("Mr. Birnbaum") and Beth Birnbaum ("Mrs. Birnbaum") (collectively, "defendants") move for summary judgment***.


Defendant established that the Retainer Agreement is signed by plaintiff and Mr. Bimbaum, and that there is no equivalent signed writing by Mrs. Bimbaum agreeing to pay her   husband's debts to the plaintiff, so as to satisfy the Statute of Frauds.

However, in opposition, plaintiff sufficiently raised an issue of fact in this regard. Plaintiff relies on a series of email communications to establish the writing requirement of the SOF: (1) a November 6, 2008 letter plaintiff sent Mr. Birnbaum, enclosing an invoice covering the period May 1, 2008 through October, 2008 in the sum of $19,000.00 (for a total amount of $47,123.12), and advising that plaintiff would seek to be relieved as counsel unless the invoice was paid in full in 10 days (Lee Aff. Ex. A.); (2) Mr. Birnbaum's November 10, 2008 (Lee Aff. Ex. I) that he was "preparing a payment to you," and plaintiff's November 14, 2008 (Lee Aff. Ex. J) email with wire instructions; (3) Mrs. Birnbaum's November 14, 2008 email to plaintiff signed "Beth," stating "[w]e will be in touch next week." (Lee Aff. Ex. J.); (4) Mr. Lew's November 19, 2008 (Lew Aff. Ex. A) email to Mr. Lee stating that "Beth called today [i.e., on November 19, 2008] to advise us that she was sending the firm a check for $20,000." No such check has been received, to date. (Lee Aff. 38); (5) Mrs. Birnbaum's December 1, 2008 email to plaintiff (Lee Aff. Ex. K) stating that "Unfortunately, I was unable to access the money on my last trip; it's still tied up, but will be able to do so before the end of December .... I apologize and thank you for your patience. Beth Birnbaum"; (6) Mrs. Birnbaum's December 1, 2008 email to plaintiff (Lee Aff. Exhibit K), stating "Was waiting for the death certificates. Have them now. Taken together, Mrs. Bimbaum's emails to plaintiff refer to the fees earned by plaintiff, and may constitute a signed writing for purposes of the Statute of Frauds (Naldi v Grunberg, 80 AD3d 1, 2010 N.Y. Slip Op. 07079 at 1, 4 [1st Dept 2010]; Stevens v Publicis S.A., 50 AD2d 253, 255-256, 854 NYS2d 690 [1st Dept 2008] ("The e-mails ... constitute 'signed writings' within the meaning of the statute of frauds, since plaintiffs name at the end of his e-mail signified his intent to  authenticate the contents")).

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