In Miller v. Mott's Inc., 5 AD3d 1019, 773 N.Y.S.2d 727, the third-party plaintiff moved for summary judgment upon its cause of action for contractual indemnification from the third-party defendant. The facts of the case were that when the third-party plaintiff faxed its purchase order to the third-party defendant it sent only the front side of the purchase order and did not send the reverse side which contained the indemnification provision. Despite that failure, the third-party plaintiff contended that the past practice and course of conduct between the parties established as a matter of law that the third-party defendant agreed to the terms on the reverse side of the purchase order. The lower court and the Appellate Division held that the prior course of conduct between the parties raised an issue of fact as to whether the third-party defendant agreed to the terms on the reverse side of the purchase order, despite the fact that in the particular instance giving rise to the litigation the reverse side of the purchase order was not faxed to the third-party defendant.