Opinion
055175/05.
Decided May 19, 2006.
Defendant moves to dismiss this action on the basis of a forum selection clause in the parties' contract. Plaintiff pro se Elena Strujan opposes the motion.
In deciding this motion, the court considered the following papers: 1) defendant's notice of motion and attachments, 2) plaintiff's affidavit in opposition, and 3) defendant's reply affirmation.
BACKGROUND
Ms. Strujan sues defendant America Online, Inc. (sued herein as "AOL") for "failure to provide proper services" in its provision of on line services. Ms. Strujan asserts that she called AOL's technical support service personnel to get help with her computer. According to plaintiff, the instructions she was given by AOL technical support caused her computer to malfunction. She sues for $2500.
In its motion papers AOL argues that this lawsuit is not properly before this court because of the forum selection clause contained in its Term of Service Agreement ("Agreement"). The Agreement, presented in the form of a series of pages on a potential subscriber's computer monitor, is acceded to by all AOL members when they initially sign up for AOL internet service. A subscriber is apparently given the option when signing up of foregoing the option of reading each page of the Agreement.
The forum selection clause in the Agreement provides in relevant part:
Member expressly agrees that exclusive jurisdiction for any claim or dispute resides in the courts of the Commonwealth of Virginia. Member further agrees and expressly consents to the exercise of personal jurisdiction in the Commonwealth of Virginia in connection with any dispute or claim involving AOL, Inc.
DISCUSSION
A contractual forum selection clause is enforceable unless it is shown by the challenging party to be unreasonable, unjust, in contravention of public policy, invalid due to fraud or overreaching, or it is shown that a trial in a selected forum would effectively deprive a party of her day in court. ( See Brooke Group Ltd v. JCH Syndicate 488, 87 NY2d 530; British West Indies Guaranty Trust Co. v. Banque Internationale A Luxembourg, 172 AD2d 234.)
AOL cites numerous, mostly unpublished, decisions from New York Courts upholding the forum selection clause in its Agreement. However, at least two of these decisions concern claims brought by a group or class of persons aggrieved by AOL's policies. ( E.g. Gates v. AOL Time Warner, Inc., 2003 WL 21375367 [gay, lesbian, bisexual and transgender AOL members allege AOL fails to adequately police chat rooms, resulting in hate speech directed at plaintiffs]; DiLorenzo v. America Online, Sup Court, New York County, January 22, 1999 [Cozier, J., Index No. 605867/96] [consolidated class actions]; see also Spera v. America Online, Sup Court, Westchester County, January 27, 1998 [DiBlasi, J. Index No. 06716/97] [putative class action, not clear whether it was certified prior to dismissal]. The remaining decisions apparently concern the claims of individual plaintiffs without describing the amount or nature of these claims.
AOL fails to cite recent apposite authority from the Appellate Term, First Department, which is more closely analogous to the case at bar than the authority contained in AOL's papers. In Scarcella v. America Online, Inc. ( 11 Misc 3d 19) the Appellate Term affirmed Judge Samuels' decision holding that AOL's forum selection clause was unenforceable in an action brought in the Small Claims Part of the Civil Court. Judge Samuels found that the forum selection clause in the Agreement ran athwart the strong public policy embodied in the Small Claims provisions of the Civil Court Act, which are designed to ensure the provision of an inexpensive forum for unrepresented litigants.
The instant action was brought in the Personal Appearance Part of the Civil Court, not in the Small Claims Part. Nonetheless, Scarcella is persuasive authority. Like the Small Claims Part, the Personal Appearance Part is designed to accommodate persons who are unrepresented by counsel. Judges and Court staff endeavor to make litigation rules comprehensible for pro se litigants, without, of course, becoming their advocates. Cases are tried without juries, generally within a day's time.
The need for a special track for cases in which one or more parties are unrepresented has long been recognized in New York City's Courts. In 1915 the Civil Court's predecessor, the Municipal Court, set up a special procedure for persons unrepresented by counsel. Section 95 of the Municipal Court Code provided that such cases would be promptly scheduled for trial by the clerk of the court, not by the parties' filing of a notice of trial. Initially, this section required the clerk to schedule such cases for trials from five to eight days after issue was joined. According to Justice Lauer's commentaries to the code,
[Section 95] imposes upon the clerk the duty of placing cases upon the calendar for trial where one or both of the parties appear in person without attorneys and insures a speedy trial of the issues joined.
(Lauer, The New Practice and Procedure in the Municipal Court of the City of New York, § 95 at 441 [1916].)
The First Department recognized the purpose of this section was to create a more user-friendly procedure for pro se litigants. In Dirkes v. Peterson ( 273 AD 41) the court noted:
The obvious purpose of the statute was to protect the person who appeared without the aid of a lawyer and who could not be expected to follow the intricacies of calendar practice.
The Personal Appearance Part is the continuation of the this responsiveness to the needs of self-represented litigants.
While there are differences between the Small Claims and Personal Appearance Parts, these differences do not undercut Scarcella's applicability to the case at bar.
For example, while the jurisdictional amount in the Personal Appearance Part is the $25,000 generally applicable to Civil Court actions — not the $5000 ceiling used in Small Claims Court — plaintiff herein sues for $2500. Thus Ms. Strujan could have brought this action in Small Claims Court; for reasons unexplained in the parties' papers, she elected not to do so. This fortuity is not sufficient to deny Ms. Strujan her day in court.
If this court were to enforce the forum selection clause, Ms. Strujan would face the same financial constraints as the plaintiff in Scarcella. She would have to travel to Virginia, probably more than once, for court appearances. The trip is not one easily completed in a single day, which could necessitate food and lodging expenses. Like the plaintiff in Scarcella, Ms. Strujan would quickly see her litigation expenses eat away at her potential recovery.
Ms. Strujan brought her action against AOL in a forum designed to provide an economical and prompt resolution of actions involving pro se litigants. The enforcement of the Agreement's forum selection clause would deprive her of this forum and provide no practical alternative. Accordingly, the court finds that the enforcement of the forum selection clause in this action would be unreasonable.
CONCLUSION
For the reasons stated, defendant's motion to dismiss the complaint is denied.