Summary
rejecting claim that class action waiver is unconscionable based on strong public policy favoring arbitration and "absence of a commensurate policy favoring class actions"
Summary of this case from Kinkel v. Cingular WirelessOpinion
2600
April 8, 2003.
Order, Supreme Court, New York County (Ira Gammerman, J.), entered November 14, 2001, which, in a putative class action for breach of contract, fraud and deceptive trade practices arising out of certain representations made by defendants cellular phone companies concerning their rates, inter alia, granted defendants' motion to stay the action pending arbitration, unanimously affirmed, without costs.
G. Oliver Koppell, for plaintiff-appellant.
Christopher M. Mason, for defendants-respondents.
Before: Nardelli, J.P., Tom, Ellerin, Friedman, Marlow, JJ.
There is no merit to plaintiff's argument that he never agreed to arbitrate any claims with defendants. The two identical "Cellular Service Orders" that plaintiff signed, in 1997 and 1999, gave clear notice that he was agreeing to the arbitration clause contained in the two identical "Cellular Service Agreements" that were admittedly attached to the Orders. Given this clear intent to arbitrate, it does not avail plaintiff that his signature appears only on the Orders and not the Agreements, or that the Agreements were with only defendant Bell Atlantic Mobile, and not with its parent, defendant Bell Atlantic Corp., or its successor, defendant Verizon Wireless, or with the latter's parent, defendant Verizon Communications (see Crawford v. Merrill Lynch, Pierce, Fenner Smith, 35 N.Y.2d 291, 299;Metropolitan Arts Antiques Pavilion v. Rogers Marvel Architects, 287 A.D.2d 372; Rudolph Beer v. Roberts, 260 A.D.2d 274, 275). We would add that plaintiff's claim that the non-signatory defendants are not entitled to the benefit of the arbitration provision contained in the Agreements is inconsistent with his claim that they are liable to him under those Agreements for breaches of contract.
The Agreements do not have any credit component that could bring them within the coverage of the Retail Installment Sales Act (Personal Property Law, article 4), under which waivers of the right to a jury trial are void (Personal Property Law § 403 [h]), since the monthly payments corresponded to monthly service usage rather than installments on a larger indebtedness, and the provision for a late fee cannot be deemed interest for the extension of credit (cf. Gailey Co. v. Wahl, 262 A.D.2d 985).
It does not avail plaintiff to argue that the arbitration provision is unconscionable without offering evidence that he could not have chosen another service provider (compare Powertel, Inc. v. Bexley, 743 So.2d 570 [Fla 1st DCA], review denied 763 So.2d 1044 [Fla]). Inequality of bargaining power alone does not invalidate a contract as one of adhesion when the purchase can be made elsewhere (see Brower v. Gateway 2000, 246 A.D.2d 246, 252). Also, given the strong public policy favoring arbitration (see Matter of Smith Barney Shearson v. Sacharow, 91 N.Y.2d 39, 49; Moses H. Cone Mem. Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24-25), and the absence of a commensurate policy favoring class actions, we are in accord with authorities holding that a contractual proscription against class actions, such as contained in the Agreements, is neither unconscionable nor violative of public policy (see Boomer v. AT T Corp., 309 F.3d 404, 419; Johnson v. West Suburban Bank, 225 F.3d 366,cert denied 531 U.S. 1145; Hale v. First USA Bank, 00 Civ 5406 [SDNY, JGK], 2001 U.S. Dist LEXIS 8045, *23, n4; 2001 WL 687371, *7, n4; Lewis Tree Serv. v. Lucent Tech., 239 F. Supp.2d 332, 338 [SD N.Y. 2002]; Lozano v. AT T Wireless, 216 F. Supp.2d 1071 [CD Cal 2002]).
We have considered and rejected plaintiff's other arguments.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.