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Mark A. Berman

When does an electronically transmitted document contain an “electronic signature” for purposes of New York’s Electronic Signatures and Records Act? The answer is not that straight forward as demonstrated in the recent Third Department decision in Solartech Renewables v. Vitti, 2017 N.Y. App. Div. LEXIS 8635, 2017 NY Slip Op 08574 (Dec. 7, 2017). Can an email be used as “documentary evidence” under CPLR Rule 3211(a)(1) against the person who received it who does not possess it or recall receiving the email? Under certain circumstances, the answer is “yes” as demonstrated in Lisi v. Lowenstein Sandler, 2017 N.Y. Misc. LEXIS 4426, 2017 NY Slip Op 32411(U) (Sup. Ct. N.Y. Co. Nov. 16, 2017). Finally, discussed below are two cases that construe the recently enacted Article 13-A of the Estates, Powers and Trusts Law which provides for a custodian of electronic records, such Google, to disclose to the personal representative of a decedent’s estate a catalogue of electronic communications sent or received by a deceased user.

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