THE DEFENDANT REHABILITATION FACILITY DID NOT PROVE PLAINTIFF’S DECEDENT SIGNED THE ADMISSIONS AGREEMENT USING AN ELECTRONIC FORMAT CALLED DOCUSIGN; THEREFORE THE AGREEMENT WAS NOT AUTHENTICATED AND THE FORUM SELECTION CLAUSE IN THE AGREEMENT COULD NOT BE ENFORCED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Gonzalez, reversing Supreme Court, over a dissent, determined the defendant rehabilitation facility, Dewitt. did not demonstrate plaintiff’s decedent signed the facility’s admission agreements. Therefore the forum selection clause in the agreements should not have been enforced by the motion court. The agreements were allegedly signed using an electronic format called Docusign. But the defendant did not submit any evidence demonstrating how Docusign works and did not submit an affidavit by the representative who allegedly witnessed plaintiff’s signatures. The agreement was not, therefore, authenticated and was not admissible evidence of an agreement to the forum:

… [T]he “burden of proving the existence, terms and validity of a contract rests on the party seeking to enforce it” … . This requires, in the first instance, authentication of the purported writing … . Authentication may be effected by various means, including, for example, by certificate of acknowledgment (see CPLR 4538), by comparison of handwriting (see CPLR 4536), or by the testimony of a person who witnessed the signing of the document … .

Here, …in support of its motion, Dewitt submitted Trimarchi’s [the defendant’s director of admission’s] affidavit, along with copies of the admissions agreements. Trimarchi admitted, however, that she was not present during the signing of the admissions agreement. Trimarchi attested only to her understanding of how admissions agreements were usually signed; she had no actual knowledge of how the agreements bearing decedent’s name came to be signed. Moreover, Trimarchi did not describe any protocols governing the use of Docusign. Accordingly, her affidavit cannot serve to authenticate the agreements … . Dewitt did not seek to authenticate decedent’s signature by any other means, such as a certificate of acknowledgment or a handwriting exemplar. Since Dewitt failed to authenticate the agreements, it correspondingly failed to show that the forum selection clauses set forth in those documents are enforceable against plaintiff … . Knight v New York & Presbyt. Hosp., 2023 NY Slip Op 04258, First Dept 8-10-23

Practice Point: This case illustrates the need to authenticate signatures which involve some sort of electronic signing format. Here the defendant did not demonstrate how the electronic signature format worked and therefore did not authenticate plaintiff’s decedent’s signature. The forum selection clause in the agreement, therefore, could not be enforced.