To be sure, neglecting to reduce your agreement to writing isn't a good thing. And certainly, in hindsight you can easily wonder how you let that happen. But thinking those thoughts aren't terribly productive, and won't solve anything.

On the other hand - and the importance of this cannot be overstated - you should know this:

Just because you failed to reduce your agreement to writing doesn't necessarily mean that you are completely without legal recourse.

There are some circumstances where a plaintiff can still recover his or her damages flowing from a breach of contract. (For more on this topic, please see the free e-book, "When You Don't Have a Written Agreement").

That's where e-mail comes in.

Under New York Law, Email May Be More Than Enough to Establish an Agreement Between the Parties 

In a recent case involving a breach of employment contract and non-compete case where the trial court held that the parties did not extend their prior agreement inasmuch as there were only emails between the parties going back and forth, New York's Appellate Division, First Department pointedly went out of its way to state the following:

Preliminarily, we reject Supreme Court's conclusion that correspondence such as the emails here do not suffice as documentary evidence for purposes of CPLR 3211(a)(1). This Court has consistently held otherwise.

For example, in Schutty v. Speiser Krause P.C. (86 AD3d 484, 484-485 [1st Dept 2011]), this Court found drafts of an agreement and correspondence sufficient for purposes of establishing a defense under the statute. Similarly, in Langer v. Dadabhoy (44 AD3d 425, 426 [1st Dept 2007], lv denied 10 NY3d 712 [2008]), this Court found "documentary evidence in the form of emails" to be sufficient to carry the day for a defendant on a CPLR 3211(a)(1) motion. Likewise, in WFB Telecom. v. NYNEX Corp. (188 AD2d 257, 259 [1st Dept 1992], lv denied 81 NY2d 709 [1993]), this Court granted a CPLR 3211(a)(1) motion on the basis of a letter from the plaintiff's counsel that contradicted the complaint. Therefore, there is no blanket rule by which email is to be excluded from consideration as documentary evidence under the statute.

See, Kolchins v. Evolution Markets, Inc., 653536/12, NYLJ 1202722682673, at *1 (App. Div., 1st, Decided April 2, 2015).

In fact, even in the context of an agreement for the sale of goods - which normally does have to be reduced to writing -. an email may suffice, so long as the following essential terms are covered in the parties' correspondence: (1) quantity;  (2) price; and, (3) time and manner of delivery.  However, New York's courts have also explictly held that "[T]he fact that one or more of these terms is left open is not fatal. See, Bazak Int'l Corp. v. Tarrant Apparel Grp., 378 F.Supp.2d 377, 389-90 (S.D.N.Y. 2005) (Marrero, D.J.) (e-mail confirming oral agreement created issues of fact concerning whether parties intended to be bound).

The Takeaways

The takeaways from the foregoing are really rather simple - and obvious:

  • Try to ALWAYS reduce your agreements to writing; it is the best way to make sure everyone is on the same page;
  • At worst, make sure that there are emails confirming the most important terms of your agreement with the other side; at worst, this may still afford you protection, at least before New York's courts
Jonathan Cooper
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Non-Compete, Trade Secret and School Negligence Lawyer
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