Intershoe, Inc. v. Bankers Trust Co.

160 A.D.2d 520, 554 N.Y.S.2d 514, 1990 N.Y. App. Div. LEXIS 4396

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 19, 1990
• Status: Published

Opinions

—Order of the Supreme Court, New York County (Harold Baer, J.), entered on or about April 13, 1989, which denied Bankers Trust Company’s motion seeking dismissal of the complaint pursuant to CPLR 3211 (a) (1) and (7) and summary judgment on its counterclaim pursuant to CPLR 3212, affirmed, without costs.

Bankers Trust sought summary judgment on the strength of a confirmation slip, signed by Intershoe’s treasurer, which documented an oral contract for the exchange of dollars and lira. The confirmation stated that, on March 13, 1985, Bankers Trust had purchased 537,750,000 lira from Intershoe at a rate of 2,151 lira per dollar ($250,000) to be delivered during October 1985.

In opposition to the motion, Intershoe submitted the affidavit of its treasurer which states that the confirmation slip does not reflect the actual order that it placed with defendant orally over the telephone. The affidavit asserts that Intershoe had, in fact, instructed the bank to purchase lira on its behalf in the foreign exchange market, and not to purchase lira from it as the confirmation slip reflects. In support of Intershoe’s position, it is further asserted that the company is in the business of importing shoes; that it employs foreign currency futures contracts to protect itself against currency fluctuations and to set prices, in dollar terms, for future selling seasons; that, in its course of dealing with Bankers Trust, Intershoe has entered into approximately 1,000 contracts for the future delivery of foreign currency to its account, including two other future purchases of currency made during the course of the same conversation during which the contract at issue was made; and that only once, in another year, had Intershoe ever sold foreign currency to Bankers Trust, and then only for present delivery and not under a futures contract. Bankers Trust never rebutted this showing and never offered the affidavit of its employee who took Intershoe’s order on March 13 to contradict Intershoe’s version of the events. We note that Bankers Trust now tape records all such telephone transactions.

Bankers Trust, for the first time on this appeal, seeks to invoke the parol evidence rule set forth in UCC 2-202 to bar Intershoe’s contradiction of the terms appearing on the confirmation slip. The argument, which is apparent on the face of the record and, therefore, may be entertained (Matter of Knickerbocker Field Club v Site Selection Bd., 41 AD2d 539), is in any event not dispositive. Nothing in the confirmation slip indicates that it was intended to be the final expression of the parties’ agreement and, indeed, Bankers Trust’s deposition testimony on this point is equivocal (see, Crispin Co. v Delaware Steel Co., 283 F Supp 574 [ED Pa]). Moreover, the unusual circumstances disclosed by this record raise issues of fact as to whether the terms contained in the confirmation slip represent a mistake by both parties as to the terms of their actual agreement (see, Backer Mgt. Corp. v Acme Quilting Co., 46 NY2d 211, 219). In cases of mutual mistake, the parol evidence rule is unavailable to bar evidence of the parties’ prior oral agreement (Marine Midland Bank-Southern v Thurlow, 53 NY2d 381, 387; Chimart Assocs. v Paul, 66 NY2d 570, 573-574). Summary judgment is inappropriate where there is any question as to the existence of a triable issue (Rotuba Extruders v Ceppos, 46 NY2d 223, 231). Concur —Kupferman, J. P., Wallach and Rubin, JJ.