Opinion
Index No. 158101/2022
08-29-2023
James GARNER, Plaintiff, v. REVEL TRANSIT INC., Defendant.
Attorneys for Plaintiff, Joseph P. DePaola, GREENBERG LAW, P.C., 370 Lexington Avenue, Suite 1100, New York, New York 10017, (212) 972-5656 Attorneys for Defendant, Jennifer Bruder, HAWORTH BARBER & GERSTMAN, LLC,80 Broad Street, 24th Floor, New York, New York 10004, (212) 952-1100
Attorneys for Plaintiff, Joseph P. DePaola, GREENBERG LAW, P.C., 370 Lexington Avenue, Suite 1100, New York, New York 10017, (212) 972-5656
Attorneys for Defendant, Jennifer Bruder, HAWORTH BARBER & GERSTMAN, LLC,80 Broad Street, 24th Floor, New York, New York 10004, (212) 952-1100
James G. Clynes, J. The motion by Plaintiff pursuant to CPLR 7503 to vacate Defendant's Notice of Intention to Arbitrate and to permanently stay arbitration and the cross-motion by Defendant Revel Transit Inc. to Compel Plaintiff to arbitrate are decided as follows:
Plaintiff seeks recovery for personal injuries sustained as a result of an August 27, 2021 accident involving an electric moped rented by Plaintiff from Defendant Revel Transit Inc. After Plaintiff commenced this action, Defendant served notice of intent to arbitrate.
New York has long favored arbitration, as a matter of public policy ( Matter of Smith Barney Shearson Inc. v. Sacharow , 91 N.Y.2d 39, 49, 666 N.Y.S.2d 990, 689 N.E.2d 884 [1997] ). Notwithstanding, the right to seek arbitration can be waived ( Stark v. Molod Spitz DeSantis & Stark, P.C. , 9 N.Y.3d 59, 845 N.Y.S.2d 217, 876 N.E.2d 903 [2007] ) and such waiver is ascribed to a party who commences a lawsuit ( De Sapio v. Kohlmeyer , 35 N.Y.2d 402, 362 N.Y.S.2d 843, 321 N.E.2d 770 [1974] ). The assumption that a party who commences an action generally waives its right to submit the issue to arbitration does not apply to a defendant ( id. ). However, a defendant's right to compel arbitration is not absolute and a defendant's increasing participation in an action will militate against compelling arbitration ( id. ; Matter of Zimmerman v. Cohen , 236 N.Y. 15, 139 N.E. 764 [1923] ; Ryan v. Kellogg Partners Inst. Servs. , 58 A.D.3d 481, 871 N.Y.S.2d 108 [1st Dept. 2009] ).
"A party to an agreement may not be compelled to arbitration its dispute with another unless the evidence establishes the parties’ clear, explicit and unequivocal agreement to arbitrate" ( God's Battalion of Prayer Pentecostal Church, Inc. v. Miele Assocs., LLP , 6 N.Y.3d 371, 374, 812 N.Y.S.2d 435, 845 N.E.2d 1265 [2006] ). A party's signature is not required ( id. ). As an initial matter, defendant has participated in this forum to the extent of serving an answer, opposing plaintiff's motion to stay arbitration, and cross-moving to compel arbitration. Defendant's right to submit this matter to arbitration is not waived by such limited participation (see De Sapio ; see also Matter of Zimmerman ). Defendant operates a business by which users register for its service and then are permitted to rent electric mopeds. There is no dispute that plaintiff registered for this service and used defendant's mopeds. In registering for defendant's service, plaintiff was required to "toggle" a button through the phone application next to "I accept the Terms of Use and Privacy Policy." Both "Terms of Use" and "Privacy Policy" appear as blue hyperlinks ( id. ). An attempt to proceed without selecting the toggle results in a message "Please review and accept our Terms of Use and Privacy Policy." Furthermore, plaintiff was required to toggle a separate button on the "Confirm Terms" page of the registration process agreeing that: "I have read, understand, and accept Revel's Rental Agreement."
However, plaintiff contends that he was not apprised of the arbitration provisions in defendant's terms of use at the time of his registration with defendant. Consequently, he seeks to permanently stay enforcement of the arbitration provisions. Plaintiff's affidavit in which he avers that he did not click on the hyperlinks to view the policies while registering, and therefore should not be bound by the arbitration agreement contained therein, is belied by his toggling buttons to the contrary. In any event, his failure to read the contract before assenting to same is irrelevant. It has long been established that a party's failure to read a contract before signing is not a basis to excuse performance under the contract; "An alleged lack of knowledge of the arbitration clause will not excuse it, for the law does not relieve a person merely because [one] has failed to read a document which [one] has executed" ( Charles S. Fields, Inc., v. American Hydrotherm Corp. , 5 A.D.2d 647, 174 N.Y.S.2d 184 [1st Dept. 1958] ). Put differently, "[one] who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of another contracting party, is conclusively presumed to know its contents, and to assent to them, and there can be no evidence for the jury as to [the] understanding of its terms" ( Metzger v. Aetna Ins. Co. , 227 N.Y. 411, 125 N.E. 814 [1920] ; see also Humble Oil & Refining Co. v. Jaybert Esso Service Station, Inc. , 30 A.D.2d 952, 294 N.Y.S.2d 190 [1st Dept. 1968] ). This principle is no less applicable in the digital age. Providing a hyperlink at the time of registration, and the users assent to register, is sufficient notice to the user that their registration is subject to contractual terms (see Meyer v. Uber Tech., Inc. , 868 F.3d 66 [2d Cir. 2017] ). "While it may be the case that many users will not bother reading the additional terms, that is the choice the user makes; the user is still on inquiry notice" ( id. at 79 ).
The Court finds defendant's notice of the terms and conditions applicable to plaintiff's use of defendant's mopeds was reasonably conspicuous and plaintiff's manifestation of assent unambiguous, as a matter of law (see Weissman v. Revel Transit, Inc. , 2023 N.Y. Slip Op. 02956, 217 A.D.3d 430, 190 N.Y.S.3d 46 (1st Dept., 2023) [unanimously affirms trial court decision that denied plaintiff's motion for an order staying arbitration and granted defendant's cross-motion for an order compelling arbitration and staying the action unanimously affirmed]). Plaintiff's motion is denied, and Defendant's cross-motion is granted. Accordingly, it is
ORDERED that plaintiff's motion is denied in its entirety; and it is further
ORDERED that defendant's cross motion is granted, and the parties are directed to proceed to arbitration forthwith; and it is further
ORDERED that all proceedings in this action are hereby stayed, except for an application to vacate or modify said stay; and it is further
ORDERED that either party may move by order to show cause to vacate or modify said stay upon the final determination of the arbitration.
This constitutes the Decision and Order of the Court.