Martin v Citibank, N.A., 2009 NY Slip Op 05906 (App. Div., 1st, 2009)
A party to a contract is not relieved from the contract's provisions by asserting that he or she failed to read it (see Florence v Merchants Cent. Alarm Co., 51 NY2d 793, 795 [1980]; Pimpinello v Swift & Co.,
253 NY 159, 162-163 [1930]). Here, however, plaintiff contends that the
agreement which he signed did not include the page containing the
liability limitation, and that he was not given a copy of that page.
Although defendant introduced a multi-page document purporting to be
the contract plaintiff signed, defendant's employee who rented the box
to plaintiff could not recall whether all of the pages of that
agreement were actually given to plaintiff.The record contains other evidence which, when viewed in the
light most favorable to the plaintiff and affording him every favorable
inference (see Johnson v Goldberger, 286 AD2d 604, 606 [2001]),
lends support to plaintiff's contention that he was not provided the
complete lease agreement. First, the agreement produced by defendant in
this litigation is missing the sixth page. Although defendant now
claims, without any citation to the record, that this missing page is
actually the signature card, defendant's employee did not know what
information was contained on the sixth page.In addition, pages two and three of the agreement produced by
defendant are not initialed by either plaintiff or defendant, and the
blank space on page three that is intended to contain [*2]defendant's
address for notice purposes is not filled in. On the other hand, all of
the pages plaintiff admits having seen have writing on them. Finally,
the staple was removed from the lease agreement defendant produced,
raising an issue of fact as to whether the integrity of the document
was compromised. Based on this evidence, we find that plaintiff has
raised a triable issue of fact regarding whether or not he was given
the entire agreement.Although we do not disagree with the dissent's recitation of
the general principle that a party's failure to read a contract does
not excuse him or her from its terms, the critical distinction here is
that plaintiff contends that he never received the full agreement and
thus could not have read the limitation of liability clause. Although
the dissent suggests that plaintiff's claim is not believable, the
record contains more than plaintiff's bare assertion. Plaintiff's
position in this litigation is buttressed by defendant's employee's
inability to recall whether plaintiff received the entire agreement,
along with other evidence suggesting that plaintiff may not have
received all of the pages. On a motion for summary judgment, the
court's function is issue finding, not issue determination, and any
questions of credibility are best resolved by the trier of fact (see Rodriguez v Parkchester S. Condominium, 178 AD2d 231 [1991]).
Pesky staples.
The bold is mine.
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