        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

104
CA 16-00527
PRESENT: CENTRA, J.P., LINDLEY, NEMOYER, CURRAN, AND TROUTMAN, JJ.


HUMAN TECHNOLOGIES CORPORATION,
PLAINTIFF-RESPONDENT,

                    V                             MEMORANDUM AND ORDER

TENNESSEE-ALABAMA MANUFACTURING, INC.,
DEFENDANT-APPELLANT.


CENTOLELLA LYNN D’ELIA & TEMES LLC, SYRACUSE (DAVID C. TEMES OF
COUNSEL), FOR DEFENDANT-APPELLANT.

SAUNDERS KAHLER, LLP, UTICA (MERRITT S. LOCKE OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


     Appeal from an order of the Supreme Court, Herkimer County (Erin
P. Gall, J.), entered June 2, 2015. The order granted the motion of
plaintiff for summary judgment, denied the cross motion of defendant
for summary judgment and dismissed the counterclaims of defendant.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by granting judgment in favor of
plaintiff Human Technologies Corporation as follows:

          It is ADJUDGED and DECLARED that the purchase orders,
     dated September 25, 2013, and the delivery releases, dated
     November 8, 2013, do not constitute an enforceable
     agreement,

and as modified the order is affirmed without costs.

     Memorandum: Plaintiff commenced this action seeking a
declaration that certain purchase orders and delivery releases are not
governed by UCC article 2, and that they do not constitute an
enforceable agreement. Plaintiff thereafter moved for, inter alia,
summary judgment seeking the relief set forth in its complaint and
dismissal of defendant’s counterclaims. Supreme Court granted the
motion, concluding that the purchase orders and delivery releases are
not governed by UCC article 2, and that the purported agreement is
void under the statute of frauds (see General Obligations Law § 5-701
[a] [1]). We conclude that the court properly granted the motion but
erred in failing to declare the rights of the parties (see generally
Hirsch v Lindor Realty Corp., 63 NY2d 878, 881), and we therefore
modify the order accordingly.
                                 -2-                           104
                                                         CA 16-00527

     Contrary to defendant’s contention, an email from plaintiff’s
business developer does not satisfy the statute of frauds inasmuch as
the full intention of the parties cannot be ascertained from that
email without reference to parol evidence (see Cooley v Lobdell, 153
NY 596, 600; Dahan v Weiss, 120 AD3d 540, 542). Moreover, the email
did not “confirm the material elements of [the] alleged agreement”
(Josephberg v Crede Capital Group, LLC, 140 AD3d 629, 629), but
instead confirmed “that the material terms of the agreement were not
settled” (Dahan, 120 AD3d at 542). Contrary to defendant’s further
contention, “part performance is not applicable to actions governed by
section 5-701” (American Tower Asset Sub, LLC v Buffalo-Lake Erie
Wireless Sys. Co., LLC, 104 AD3d 1212, 1212; see Messner Vetere Berger
McNamee Schmetterer Euro RSCG v Aegis Group, 93 NY2d 229, 234 n 1).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
