Opinion
Index No. 650076/2023 Motion Seq. Nos. 003 004
09-07-2023
SANJAY CHABLANEY, Plaintiff, v. GEMINI TRUST COMPANY, LLC, TYLER WINKLEVOSS, CAMERON WINKLEVOSS Defendant.
Unpublished Opinion
MOTION DATE 02/14/2023, 03/13/2023
DECISION + ORDER ON MOTION
ANDREW BORROK JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 003) 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 46, 47, 48, 56, 57 were read on this motion to/for CONSOLIDATE/JOIN FOR TRIAL
The following e-filed documents, listed by NYSCEF document number (Motion 004) 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 49, 50, 51,52, 58, 59, 60 were read on this motion to/for COMPEL ARBITRATION
Upon the foregoing documents, (i) the motion (Mtn. Seq. No. 003) to consolidate the case captioned Ryan Cobourn v Gemini Trust Company, LLC et al, Index No. 650567/2023 (the Cobourn Action) with an into this action and (ii) the motion (Mtn. Seq. No. 004) to compel arbitration are both granted.
The plaintiffs motion to consolidate is substantively unopposed. The timing issues raised by the defendants in opposing the motion are moot. For completeness, because the allegations in this action and the Cobourn Action unquestionably involve common questions of law and fact, consolidation is appropriate (Progressive Ins. Co. v Countrywide Ins. Co., 10 A.D.3d 518, 519 [1st Dept 2004]). With respect to the motion to compel arbitration, Gemini Trust Company, LLC (Gemini) is a privately-owned cryptocurrency exchange launched in 2014 which lets customers buy, sell, trade and securely store more than 60 cryptocurrencies (NYSCEF Doc. No. 1, ¶ 2). Significantly, when Gemini decided to change its user agreement to provide for arbitration, they sent out an email highlighting that their alternative dispute provision had changed, included a hyperlink of the revised agreement (which users could access without agreeing to the terms of the revised agreement), encouraged users to read the revised agreement including its alternative dispute provision and provided an email address where users could email any questions that they had about the revised agreement (NYSCEF Doc. Nos. 25, 26). The complaint does not allege that the plaintiffs made any such inquiry or that they were otherwise not provided this information.
In addition, on the "log-in" screen, Gemini fully disclosed that the alternative dispute resolution provision had changed and indicated that by "signing in" users were agreeing to be bound by the revised agreement including its dispute resolution provision. The plaintiffs signed in and by doing so agreed to the terms of the revised agreement, including the agreement to arbitrate (Brooks v Lang Yang, 216 A.D.3d 505, 506 [1st Dept 2023]). As such, the motion to compel arbitration is granted and this lawsuit as consolidated is stayed (CPLR 7503[a]).
It is hereby ORDERED that the defendants' motion to consolidate is granted and Ryan Cobourn v Gemini Trust Company, LLC et al, Index No. 650567/2023 is consolidated into the abovecaptioned action; and it is further
ORDERED that the consolidation and the consolidated action shall bear the following caption:
SANJAY CHABLANEY, RYAN COBOURN, Plaintiffs,
-against-
GEMINI TRUST COMPANY LLC, TYLER WINKLEVOSS, and CAMERON WINKLEVOSS, Defendants
And it is further;
ORDERED that the pleadings in the actions hereby consolidated shall stand as the pleadings in the consolidated action; and it is further
ORDERED that, within 30 days of this decision and order, plaintiff shall serve a copy of this order with notice of entry on the Clerk of the Court (60 Centre Street, Room 141 B), who shall consolidate the documents in the actions hereby consolidated and shall mark the records to reflect the consolidation; and it is further
ORDERED that counsel for the plaintiff shall contact the staff of the Clerk of the Court to arrange for the effectuation of the consolidation hereby directed; and it is further
ORDERED that service of this order upon the Clerk of the Court shall be made in hard-copy format if this action is a hard-copy matter or, if it is an e-filed case, shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further
ORDERED that, as applicable and insofar as is practical, the Clerk of this Court shall file the documents being consolidated in the consolidated case file under the index number of the consolidated action in the New York State Courts Electronic Filing System or make appropriate notations of such documents in the e-filing records of the court so as to ensure access to the documents in the consolidated action; and it is further
ORDERED that, within 30 days of this decision and order, plaintiff shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119), who is hereby directed to reflect the consolidation by appropriately marking the court's records; and it is further
ORDERED that the defendants' motion to compel arbitration is granted and the parties are directed to arbitrate the claims in accordance with the User Agreement; and it is further
ORDERED that all proceedings in this action are hereby stayed pending resolution of such binding arbitration.