Opinion
INDEX NO. 20773/2019E
01-03-2020
STACY L. SOTO, Plaintiff, v. SKY NY LLC d/b/a SKY ZONE NEW ROCHELLE, Defendant.
NYSCEF DOC. NO. 22
DECISION/ORDER
Present: HON. ELIZABETH A. TAYLOR The following papers numbered 1 to ___ read on this motion, __________ No On Calendar of
| PAPERS NUMBERED | |
| Notice of Motion-Order to Show Cause - Exhibits and Affidavits Annexed | 1-3 |
|---|---|
| Answering Affidavit and Exhibits | 4-5 |
| Replying Affidavit and Exhibits | 6 |
| Affidavit | __________ |
| Pleadings -- Exhibit | __________ |
| Stipulation -- Referee's Report --Minutes | __________ |
| Filed papers | __________ |
Motion pursuant to CPLR 7503, for an order permanently staying this action and to compel arbitration of the underlying dispute, is granted.
Plaintiff alleges that in December 2016 she was injured when she used the trampoline on the premises of defendant's recreational business. As a condition of using defendant's facility, plaintiff signed a Participation Agreement, Release and Assumption of Risk ("participation agreement"), which contained a provision requiring that all disputes arising under the agreement would be determined by binding arbitration.
On November 10, 2017, plaintiff commenced a special proceeding for the purpose of obtaining certain pre-action disclosure pursuant to CPLR § 3102(c). She then moved by order to show cause for an order requiring defendant to preserve the trampoline, to which defendant opposed both on the merits and on the ground that disclosure should be handled in the arbitral forum. By order dated January 28, 2019, Justice Robert T. Johnson denied plaintiff's motion, noting that she "d[id] not allege that the Participation Agreement is unenforceable;" and therefore, "the parties have agreed to arbitrate their disputes." Justice Johnson held that the arbitration provision required plaintiff to seek disclosure before the arbitrator, and that she had not shown any extraordinary circumstances warranting judicial intervention. Shortly before the court issued that order, plaintiff commenced this personal injury action against defendant.
Defendant has moved to stay this action and compel arbitration of the underlying dispute, on the ground that it arises under the participation agreement. Plaintiff agrees that the dispute should be submitted to arbitration, but opposes the motion to the extent that she requests that this court issue an order compelling the parties to adhere to a pre-arbitration discovery schedule.
CPLR § 7503(a) provides that a party may apply for an order compelling arbitration, which, if granted, "shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration." The statute further provides that "[w]here there is no substantial question whether a valid agreement was made or complied with . . . the court shall direct the parties to arbitrate" (id [emphasis added]). Moreover, "[w]here parties have entered into an agreement containing a broad arbitration provision, the question of whether the arbitration clause governs a particular aspect of the controversy, as well as the determination of the merits of the dispute, are matters within the exclusive province of the arbitrator" (Remco Maintenance, LLC v CC Mgt. & Consulting, Inc., 85 AD3d 477, 479-480 [1st Dept 2011] [quotation omitted]).
There is no doubt that the participation agreement contains a broad arbitration provision. It states, in relevant part, as follows:
[i]f there are any disputes regarding this agreement, I on behalf of myself and/or my child(ren) hereby waive any right I and/or my child(ren)may have to a trial and agree that such dispute shall be brought within one year of the date of this Agreement and will be determined by binding arbitration before one arbitrator to be administered by JAMS pursuant to its Comprehensive Arbitration Rules and Procedures.
In light of the breadth of this provision, the substantive and procedural aspects of the parties' dispute are for the arbitrator to determine, including the managing of discovery. Moreover, the arbitration provision expressly provides that the arbitration be administered pursuant to JAMS' Comprehensive Arbitration Rules and Procedures. It is noted that Rule 16 states:
[a]t the request of any Party or at the direction of the Arbitrator, a Preliminary Conference shall be conducted with the Parties or their counsel or representatives. The Preliminary Conference may address [inter alia] [t]he schedule for discovery as permitted by the Rules, as agreed by the Parties or as required or authorized by applicable law (https://www.jamsadr.com/rules-comprehensive-arbitration/#Rule-16 [last visited January 2, 2019] [emphasis added]).
Since JAMS' rules specifically empower the arbitrator to hold a preliminary conference to address the handling of discovery, there is no sound basis for the court to grant plaintiff's request for a temporary stay, pending defendant's assent to a pre-arbitration discovery schedule. Rather, as set forth in the agreement that she signed, plaintiff may seek discovery in the arbitration forum pursuant to the governing rules and procedures (see e.g. Abed v John Thomas Fin., Inc., 107 AD3d 578 [1st Dept 2013]) [denying motion to compel arbitration and stay proceeding because the parties' agreement specified that arbitration would be governed by FINRA rules, which prohibited enforcement of arbitration of that particular claim]).
The Clerk is directed to dismiss the action accordingly.
The foregoing shall constitute the decision and order of this court. Dated: JAN 03 2020
/s/_________
J.S.C.