Summary
In Kay-Bee Toys Corp. v Winston Sports Corp. (214 AD2d 457, 458 [1st Dept 1995], lv denied 86 NY2d 705 [1995]), which Conbraco cites, the First Department held that the defendant was contractually obligated to indemnify the plaintiff based on an indemnification provision contained on the reverse side of the parties' purchase orders.
Summary of this case from Travelers Prop. Cas. Co. of Am. v. Crane Constr. Co.Opinion
April 20, 1995
Appeal from the Supreme Court, New York County (Walter Schackman, J.).
The IAS Court properly determined that defendant Winston was contractually obligated by the provisions on the reverse side of the parties' purchase orders for the sale of goods to indemnify the plaintiff for any liability arising as a result of the Monohan action and to add plaintiff's name to defendant's liability policy and to provide therein for coverage of contractual indemnity.
The interpretation of the clear and unambiguous terms of the parties' purchase orders, including the valid and enforceable indemnity clause which was negotiated at arm's length, was for the court (Long Is. R.R. Co. v Northville Indus. Co., 41 N.Y.2d 455, 461), since it is recognized in New York that purchase orders may create a binding contract (Polygram, S.A. v 32-03 Enters., 697 F. Supp. 132, 135; Thomaier v Hoffman Chevrolet, 64 A.D.2d 492, 495).
The purchase orders, which contained the names and addresses of the parties, the date, the price, and a description of the goods sold, and which, on the reverse side thereof, clearly set forth the terms and conditions of the purchase order, represented the final written expression of the parties with respect to the terms included therein, which may not be contradicted by parol evidence (Battista v Radesi, 112 A.D.2d 42; General Motors Acceptance Corp. v Fairway Dodge Sales, 80 A.D.2d 740, 741).
Defendant's contentions, that the purchase orders were faxed to defendant without the pertinent terms and conditions on the reverse side and that the indemnity provisions of the purchase orders upon which the underlying action is based materially and improperly altered a prior existing oral agreement between the parties pursuant to UCC 2-207 (2) (b), have not been preserved as a matter of law for appellate review (Douglas Elliman-Gibbons Ives v Kellerman, 172 A.D.2d 307, lv denied 78 N.Y.2d 856). Were this Court to address these claims in the interests of justice, however, we would affirm. The record reveals that the argument that only one side of the purchase order was faxed was not supported by an affidavit by a person with personal knowledge of the facts (Hatzlachh Supply Co. v Bank of Am., 188 A.D.2d 298, affd 81 N.Y.2d 1031). The record also reveals a prior course of dealing between the parties as well as the defendant's actions in purchasing insurance on plaintiff's behalf, and thus established that defendant was aware of and had assented to the terms of the hold harmless, indemnity and insurance provisions in the purchase order (Michel Co. v Anabasis Trade, 72 A.D.2d 715, affd 50 N.Y.2d 951).
Concur — Sullivan, J.P., Ellerin, Wallach, Asch and Williams, JJ.