In Kay-Bee Toys Corp. v. Winston Sports Corp. (214 AD2d 457, 458, 625 N.Y.S.2d 208 [1st Dept 1995], lv denied 86 NY2d 705, 656 N.E.2d 597, 632 N.Y.S.2d 498 [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.

According to the Court, "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" (id. at 459).

The First Department continued, stating that, "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" (id.).