Opinion
Index No. 530825/2021
08-23-2022
MARIA ZAMBRANO, Plaintiff, v. BRIAN ORTIZ, RICHARD P. POCH, PRIMERICA FINANCIAL SERVICES AGENCY OF NEW YORK, INC., PRIMERICA, INC., PRIMERICA FINANCIAL SERVICES, LLC, PRIMERICA LIFE INSURANCE COMPANY, and PFS INVESTMENTS INC,
Unpublished Opinion
DECISION &ORDER
Francois A. Rivera, Justice
At an IAS Term, Part 52 of the Supreme Court of the State of New York, held in and for the County of Kings, at the Courthouse, at Civic Center, Brooklyn, New York, on the 23rd day of August 2022
Recitation in accordance with CPLR 2219 (a) of the papers considered on the notice of motion jointly filed on April 11, 2022, under motion sequence number two (hereinafter MS No.), by defendants Richard P. Poch, Primerica Financial Services Agency of New York, Inc., Primerica, Inc.,Primerica Financial Services, LLC, Primerica Life Insurance Company, and PFS Investments Inc., (hereinafter collectively as "the moving defendants" or "Primerica defendants") for an order pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and Civil Practice Law and Rules §§ 7503 (a) and 3211 (a) (1) and (7), to dismiss or, alternatively, stay the action and compel arbitration of the claims asserted in plaintiffs verified complaint, and for all costs and fees associated with bringing the instant motion. Plaintiff Maria Zambrano (hereinafter plaintiff) has opposed the motion.
-Notice of Motion (MS No. 2)
-Affidavit in Support (MS No.2) filed on 4/8/2022
The moving defendants filed two affidavits by Mark Beauchamp under NYSCEF numbers 19 and 29. The later filed affidavit was used to annex an additional exhibit labeled D.
-Exhibits A to C
-Affidavit of Counsel in Support (MS No. 2)
-Exhibits A to D
-Memorandum of Law in Support (MS No. 2) filed on 4/11/2022
-Affidavit in Support (MS No. 2) filed on 5/6/2022
-Exhibits A to D
-Memorandum of Law in Support (MS No. 2)
-Notice of Cross Motion by Plaintiff (MS No. 3)
The plaintiff has filed a cross motion seeking, inter alia, a default judgment pursuant to CPLR 3215. Plaintiffs cross motion also serves as opposition to the moving defendant's motion under sequence two. The plaintiff has withdrawn the cross motion, however, that portion of the motion papers that serve as opposition to the moving defendants' motion are considered in the Court's decision.
-Affidavit in Opposition by Plaintiff to MS No. 2
-Affirmation in Support of the Plaintiffs Cross Motion (MS No. 3)
-Exhibit A
-Affidavit in Support of MS No. 2 and in Opposition to MS No. 3 by defendantBrian Ortiz
Counsel for defendant Brian Ortiz has filed a notice of appearance, an affidavit of his client with two exhibits and an affirmation in support of the exact same relief sought by the moving defendants on behalf of his client Brian Ortiz.
-Exhibit A to B
-Affirmation in Support of MS No. 2 and in Opposition to MS No. 3 by counsel of Brian Ortiz
-Affirmation in Reply by Plaintiff (MS No. 3)
-Memorandum of Law in Further Support of MS No. 2 and in Opposition to MS No. 3
-Affirmation in Further Support of MS No. 2 and in Opposition to MS No. 3
-Affirmation in Further Reply by plaintiff (MS No. 3)
BACKGROUND
On December 2, 2021, plaintiff Maria Zambrano (hereinafter after plaintiff) commenced the instant action by filing a summons with notice with the Kings County Clerk's office. On March 7, 2022, Alex J. Seidenberg, Esq. made a demand for a complaint on behalf of defendants Brian Ortiz, Richard P. Poch, Primerica Financial Services Agency of New York, Inc., Primerica, Inc., Primerica Financial Services, LLC, Primerica Life Insurance Company, and PFS Investments, Inc. pursuant to CPLR 3012(b).
It is noted that contrary to the requirements of CPLR 321(b), Alex J. Seidenberg, Esq. did not obtain a Court order or filed a consent to change attorney o be relieved from further representation of defendant Brian Ortiz.
On March 22, 2022, plaintiff filed a verified complaint. The verified complaint alleges one hundred and seven allegations of fact in support of ten denominated causes of action. The first cause of action is asserted against Brian Ortiz for physical battery, including non-consensual sexual intercourse. The second cause of action is asserted against the Primerica defendants for, inter alia, negligence and vicarious liability for the conduct of Brian Ortiz. The third cause of action is asserted against the Primerica defendants for negligent hiring and supervision of Brian Ortiz. The fourth cause of action is asserted against all defendants for failing to provide a non-discriminatory work environment in violation of the Executive Law § 296 et seq. The fifth cause of action is asserted against all defendants for failing to provide a non-discriminatory work environment in violation of Administrative Code § 8-1-101 et seq. The sixth cause of action is asserted against all defendants for adverse employment action in violation of the Executive Law. The seventh cause of action is asserted against all defendants for adverse employment action in violation of Administrative Code § 8-1-101 et seq. The eighth cause of action asserted against all defendants for is harassment and hostile work environment in violation of the Executive Law § 296 et seq. The ninth cause of action is asserted against all defendants for harassment and hostile work environment in violation of Administrative Code § 8-1-101 et seq. The tenth cause of action is asserted against all defendants for violation of the Victims of Gender-Motivated Violence Act.
In describing the ten denominated causes of action the Court used the same terminology used by the plaintiff.
The moving defendants have filed the instant pre-answer motion seeking, among other things, to dismiss the verified complaint.
On July 1, 2022, Joseph J. Sullivan III, Esq. filed a notice of appearance as counsel for defendant Brian Ortiz. On July 18, 2022, he filed other papers on behalf of Brian Ortiz. No answer has been interposed to the verified complaint and no motion has been made extending the time to do so on behalf of Brian Ortiz.
LAW AND APPLICATION
The moving defendants seek an order an order pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and Civil Practice Law and Rules §§ 7503 (a) and 3211 (a) (1) and (7), to dismiss the verified complaint or, alternatively, to stay the action and compel arbitration of the claims asserted in the verified complaint and for all costs and fees associated with bringing this motion.
Application of Brian Ortiz
Defendant Brian Ortiz (hereinafter Ortiz) is seeking the exact same relief for himself that is sought by the moving defendants and has submitted papers in opposition to the plaintiffs cross motion and in support of the motion of the moving defendants.
A party seeking affirmative relief of the court such as an order of dismissal must follow the procedures set forth in the CPLR and applicable court rules for making a motion. The Uniform Rules for New York State Trial Courts set forth, at 22 NYCRR 202.7 and 202.8, the court rules that pertain to motion practice. 22 NYCRR 202.7(a) provides that no motion shall be filed with the court unless they have been served and filed with the motion papers on notice of motion. It also directs compliance with the statutory procedures prescribed in CPLR 2214. At a minimum, a movant must file a notice of motion that shall "specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor" (CPLR 2214 [a]; Tirado v Miller, 75 A.D.3d 153, 158 [2nd Dept 2010]).
Applying these court rules and statutory procedures, the Court finds that Ortiz's request for the same relief sought by the moving defendants was not made pursuant to a notice of motion. Consequently, the request is not properly before the court and is disregarded without prejudice (see Katz v Katz, 153 A.D.3d 912 [2nd Dept 2017]).
Moving Defendants' Motion to Dismiss
A motion to dismiss pursuant to CPLR 3211 (a) (1) based on documentary evidence may be appropriately granted only where the documentary evidence utterly refutes the plaintiffs factual allegations, thereby conclusively establishing a defense as a matter of law (Lewis &Murphy Realty, Inc. v Colletti, 187 A.D.3d 731, 733 [2nd Dept 2020], citing Leon v Martinez, 84 N.Y.2d 83, 87-88 [1994]). To be considered documentary, evidence must be unambiguous and of undisputed authenticity, that is, it must be essentially unassailable (Bath &Twenty, LLC v Federal Sav. Bank, 198 A.D.3d 855, 855-856 [2nd Dept 2021]). Documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable, would qualify as documentary evidence in the proper case (Leader v Steinway, Inc., 180 A.D.3d at 887-888 [2nd Dept 2020]).
On a motion to dismiss pursuant to CPLR 3211 (a) (7), the court must afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Maddicks v Big City Props., LLC, 34 N.Y.3d 116, 123 [2019], citing Leon, 84 N.Y.2d at 87-88).
Where a party offers evidentiary proof on a motion pursuant to CPLR 3211 (a) (7), and such proof is considered but the motion has not been converted to one for summary judgment, the criterion is whether the proponent of the pleading has a cause of action, not whether the proponent has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it... dismissal should not eventuate (Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 A.D.3d 714, 715-16 [2nd Dept 2022], quoting Guggenheimer v Ginzburg, 43 N.Y.2d 268, 275, [1977] [internal quotation marks omitted]'). Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss (Bay Ridge Lodge 758, Free &Accepted Masons v Grand Lodge of Free &Accepted Masons of the State of N. Y., 202 A.D.3d 1035 [2nd Dept 2022], citing EBC I, Inc. v Goldman, Sachs &Co., 5 N.Y.3d 11,19 [2005]]) In assessing such a motion, the court may consider affidavits submitted by the plaintiff to remedy any defects in the complaint (Davydov v Youssefi, 205 A.D.3d 881, 882 [2nd Dept 2022]).
In the case at bar, the complaint was verified by the plaintiff. CPLR 105 (u) allows the verified complaint to be considered as an affidavit (Sanchez v Nat'l R.R. Passenger Corp., 21 N.Y.3d 890, 891 [2013], citing Travis v Allstate Ins. Co., 280 A.D.2d 394, 394-395 [1st Dept 2001]). The plaintiff has also submitted a separate affidavit filed under NYSCEF number 35 in opposition to the motion.
Plaintiff has averred the following salient facts among others. On or about December 5, 2020, the plaintiff met with Ortiz at the Primerica office located at 947 Coney Island Ave., 2nd Fl., Brooklyn, New York. Ortiz was introduced to her as the "District Leader" for Primerica. She was told that he was assigned to be her manager. She was presented with an electric signature in which she "signed" to authorize a credit card charge for $124.00. She was advised that the amount she was charged was for a background check and for course materials for the training that she would be receiving. The plaintiff can read and write in English, but English is her second language, and she speaks Spanish at home.
Despite paying, she never received the promised course materials from the defendants. She did for a time have access to a website with some training information on it, but that access was quickly revoked. Instead of training the plaintiff for the license examination, defendant Ortiz allegedly raped the plaintiff. First, he directed her to write down the names and contact information of her family and friends so that he could contact them to try to sell them insurance, and then, among other assaults, he intercepted her on the way to the restroom, brought her into his office, put her on top of his desk and had sex with her despite her repeated pleas for to him to stop. The plaintiff complained to the police and Ortiz was arrested and charged. The plaintiff alleges that she did not sign Primerica's independent Business Application (hereinafter IBA) or any other documents. Furthermore, that the IBA and other documents, filed by defendants in the instant action, that had plaintiffs name typewritten and purported to be her "signature" were forgeries.
The IBA states that it was "[e]lectronically signed on December 08, 2020, at 7:52 PM." Plaintiff averred that she could not and did not sign anything at that time. She was at home and did not have a desktop computer at home capable of viewing those documents or signing them even if they had been sent to her. Plaintiff did remember being on a short Zoom call from her home with Ortiz on December 8, 2020, at around 7:15 p.m. that evening. In that Zoom call, Ortiz did not "share" his screen, so plaintiff was unable to see him. Ortiz asked her for personal information including her address, social security number and birth date for the "background check" for which plaintiff had previously paid.
In sum, she did not agree to sign the IBA agreement electronically, nor did she authorize the use of an electronic signature for any purpose other than an authorization for a charge to her credit card.
Although the moving defendants also stated in their notice of motion that they were moving to dismiss the verified complaint pursuant to CPLR 3211 (a) (1) and (7), they offered no other argument in support of the relief requested. CPLR 2214 (a) provides that a notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor (Abizadeh v Abizadeh, 159 A.D.3d 856, 857 [2nd Dept 2018]). There was no argument or claim that the plaintiff either failed to plead or failed to have a cognizable claim against the moving defendants. Moreover, the moving defendants did not argue that any specific document or documents provided a complete defense to the causes of action asserted in the verified complaint.
The sole basis advanced by the moving defendants for dismissing the verified complaint is that the plaintiff agreed to arbitrate claims arising out of the plaintiffs relationship with the movants.
An agreement to arbitrate is not a defense to an action and may not be the basis for a motion to dismiss (Mozzachio v Schanzer, 188 A.D.3d 873, 876 [2nd Dept 2020], quoting Allied Bldg. Inspectors Int. Union of Operating Engrs., Local Union No. 211, AFL-CIOv. Office of Labor Relations of the City of N.Y., 45 N.Y.2d 735, 738 [1976]). The court would have no authority to dismiss a complaint merely because the parties have made an agreement which contains a mandatory arbitration clause (Mozzachio, 188 A.D.3d at 876, citing Nachman v Jenelo Corp., 25 A.D.3d 593, 593-94 [2nd Dept 2006]). Rather, upon a proper and timely motion by the defendants pursuant to CPLR 7503 (a), the court may have authority to stay the action and direct the parties to arbitrate.
Consequently, that branch of the moving defendants' motion to dismiss the verified complaint pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and the Civil Practice Law and Rules §§ CPLR 3211 (a) (1) and (7) and 7503 (a) is denied.
Moving Defendants' Motion to Compel Arbitration
In the alternative to dismissing the verified complaint, the moving defendants seek an order staying the action and compelling arbitration of the claims asserted in plaintiffs verified complaint, and for all costs and fees associated with bringing the motion.
The Federal Arbitration Act (hereinafter the FAA) applies to any arbitration agreement evidencing a transaction involving interstate commerce (Highland HC, LLC v. Scott, 113 A.D.3d 590 [2nd Dept 2014], citing 9 USC § 2). The United States Supreme Court has interpreted the term 'involving commerce' in the FAA as the functional equivalent of the more familiar term 'affecting commerce'-words of art that ordinarily signal the broadest permissible exercise of Congress' Commerce Clause power" (Highland HC, LLC, 113 A.D.3d at 592-593, citing Citizens Bank v Alafabco, Inc., 539 U.S. 52, 56 [2003]).
On a motion to compel or stay arbitration, a court must determine, in the first instance whether the parties have agreed to submit their disputes to arbitration and, if so, whether the disputes generally come within the scope of their arbitration agreement (Mozzachio, 188 A.D.3d at 874, citing Degraw Const. Grp., Inc. v. McGowan Builders, Inc., 152 A.D.3d 567, 569 [2nd Dept 2017]). When deciding whether the parties agreed to arbitrate a certain matter the court generally should apply ordinary state law principles that govern the formation of contracts (Degraw Const. Grp., Inc., 152 A.D.3d at 569, quoting First Options of Chicago, Inc. v Kaplan, 514 U.S. 938, 944 [2005]).
A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration (Revis v Schwartz, 192 A.D.3d 127, 133 [2nd Dept 2020], citing CPLR 7503 [a]). If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action (Degraw Const. Grp., Inc, 152 A.D.3d at 569-570). Where there is no substantial question whether a valid agreement was made or complied with the court shall direct the parties to arbitrate" (Id., citing Sutphin Retail One, LLC v. Sutphin Airtrain Realty, LLC, 143 A.3d 972, 973[2nd Dept 2016]). An agreement to arbitrate, and thereby surrender the right to resort to the courts, must be in writing, "must be clear, explicit and unequivocal and must not depend upon implication or subtlety" (Giffone v Berlerro Group, LLC, 163 A.D.3d 780, 780 [2nd Dept 2018], citing Matter of Waldron [Goddess], 61 N.Y.2d 181, 183-184 [1994]).
In support of the motion, the moving defendants filed the following documents on April 11 and May 6, 2022, respectively. On April 11, 2022, they filed an affidavit of Mark Beauchamp, the Senior Vice President of Primerica, Inc. (hereinafter Beauchamp), which referenced three exhibits labeled A through C; an affidavit of Alex J. Seidenberg Esq., their attorney of record (hereinafter Seidenberg) which referenced four exhibits labeled A through D; and a memorandum of law.
The exhibits referenced in the affidavit of Seidenberg were the following. Exhibit A is a copy of the summons and notice which commenced the instant action. Exhibit B is the moving defendants' demand for a complaint. Exhibit C is the verified complaint in the instant action. Exhibit D is an e-mail sent by Seidenberg to plaintiffs counsel regarding arbitration.
On May 6, 2022, they moving defendants filed another affidavit of Beauchamp, which referenced four exhibits labeled A through D and another memorandum of law. Beauchamp identified the four exhibits annexed to his affidavit as follows. Exhibit A is denominated as Primerica Independent Business Application (hereinafter IBA). Exhibit B is denominated as IBA agreements &disclosures and is also described as the IBA supplement. Exhibit C is denominated as operating guideline No. 2 and No. 14. Exhibit D is described as an exemplar online application. The first three exhibits were submitted with Beauchamp affidavit filed on April 11, 2022. The affidavit filed on May 6, 2022, contained the same first three exhibits and exhibit D.
Seidenberg's Affidavit
The affidavit of Seidenberg, the moving defendant's counsel, demonstrates no personal knowledge of the allegation of fact in the verified complaint or the allegations pertaining to the parties' alleged agreement to arbitrate. It, therefore, has nor probative value. An attorney's affirmation that is not based upon personal knowledge is of no probative or evidentiary significance (Capytal.com v. 1 Pro Constr., LLC, 75 Misc.3d 1207[A] [NY Sup Ct 2022], citing Nerayoffv Khorshad, 168 A.D.3d 866, 867 [2nd Dept 2019]).
Beauchamp's Affidavits
The affidavits of Beuachamp allege the following facts. Beauchamp describes his current role as senior vice president of Primerica Inc. and his thirty-five years of service in some capacity to one or more of the Primerica companies. He then describes the defendants' businesses, their relationship to each other and their relationship with their independent contractor agents. He then makes specific allegation regarding the plaintiff's connection with the defendants.
In particular, he alleges that on December 8, 2022, the plaintiff became a Primerica Representative by completing the IBA on Primerica's online application portal. He further alleges that once the IBA was completed, the plaintiff became authorized to sell Primerica products to consumers. He stated that the IBA is an agreement between the plaintiff and Primerica Financial Services, Inc. He averred that the IBA and IBA Supplement must be reviewed on the online application portal as an initial step in the application process.
Beauchamp alleged that during the application process, the plaintiff was required to enter her name, date of birth, address, and phone number. The online application portal would then propagate plaintiffs name throughout the remaining sections of the application. Beauchamp did not explain what he meant by the word propagate. The online application portal would then direct the plaintiff to the Signatures Page. On that page, the plaintiff was required to click a box stating "I, Maria Zambrano accept" to indicate her agreement to the terms and conditions in the IBA Supplement. The plaintiff allegedly completed her enrollment on December 8, 2020, by electronically signing the Signatures Page. To electronically sign, the plaintiff was required to type her social security number two times. The plaintiff was required to certify that the social security number belonged to her. The plaintiff then submitted her completed application to Primerica, which Primerica tracked with a unique application and file number.
Beauchamp avers that on December 8, 2020, the plaintiff became a Primerica Representative by completing the IBA on Primerica's online application portal and became authorized to sell Primerica products to consumers. This contention was unsupported and contradicted by other documentary evidence establishing that the plaintiff was required to successfully complete a training program to apply for a license to sell Primerica's financial services products. In fact, the IBA was nothing more than an application and a first step for future potential work as a Primerica agent.
The IBA annexed to the moving defendants motion papers consists of ten pages. The top of the first page reflects a $99.00 dollars one-time fee and $25.00 Primerica Online $ubscription fee to a credit card. It is then followed by a section denominated as the "Recruiter's Acknowledgments". It then followed by a section denominated "Employment and License Information. It is then followed by a section denominated as "IBA Agreements &Disclosures". It is then followed by a section denominated as "Certifications". It is then followed by as section denominated as "Applicant
Acknowledgments Authorization under the Fair Credit Reporting Act." It is then followed by a section denominated as the "Recruit Signature." The Plaintiff's name is typed in small font on the bottom of every page of the IBA. The sixth, seventh and eighth page of the IBA also contains plaintiffs name typed in twice, one above the lines labeled "Applicant Signature" and the other above the line labeled "Printed Name (First, Middle and Last)". The one above "Applicant Signature" is italicized. The Court assumes that the italicized signatures are being identified by the moving defendants as the plaintiffs electronic signature.
It is apparent that Beauchamp's contention that the plaintiff completed the IBA was not based on his personal observation of plaintiff doing so. Rather, it is based on his claimed familiarity with the IBA application process itself and his assumption that the plaintiff must have been the one filling out the information because it included specific pedigree information and responses to yes or no questions about her background.
He averred that the IBA and IBA Supplement must be reviewed on the online application portal as an initial step in the application process. This conclusory statement was made without further explanation or evidentiary support. He apparently was stating what he expected to have occurred and not what he personally observed or what he knew occurred based on his personal knowledge of the moving defendants' business practices and procedures. He did not aver that the computer application process begins with a display of the IBA supplement or that the software does not permit the applicant to get to the IBA before scrolling through the IBA supplement. In fact, the IBA itself leaves a yes or no question for a recruiter asking the following question: "Have you provided your applicant with a copy of the IBA supplement?" The recruiter is not identified on the IBA and does not contain a signature of the recruiter. There is, therefore, no evidence that an individual entering data on an IBA must see the IBA supplement before getting to the IBA.
Plaintiff's averred that in December of 2020, while with Ortiz, she signed an authorization for a credit card charge and did not sign any other documents. Analyzing the plaintiffs and Beauchamp's sworn testimony they are not necessarily inconsistent. It is possible that plaintiffs recruiter, Ortiz, interviewed the plaintiff, imputed the information responding to the pedigree and IBA's yes or no questions and obtained the plaintiffs signature for the credit card authorization. Once the signature was obtained, he or someone other than the plaintiff may have entered the electronic signature on the IBA form. Furthermore, there is no direct, reliable, admissible evidence that the plaintiff was provided with the IBA supplement or operating guideline No. 2 and No. 14. It is noted that the IBA agreement does not contain the phrase "IBA supplement" or "operating guidelines" anywhere in the document. It is also noted that IBA supplement and operating agreement No. 2 and No. 14 do not contain any indication that they were either seen, read, or accepted by the plaintiff. In particular, neither document, contains an electronic signature of the plaintiff or any other symbol or representation that the plaintiff reviewed and accepted the terms contained therein.
It is the moving defendants' burden to establish that the plaintiff agreed to submit her dispute with the moving defendants to arbitration. Evidence of the agreement to arbitrate, and thereby surrender the right to resort to the courts, must be in writing, must be clear, explicit, and unequivocal and must not depend upon implication or subtlety. The moving defendants claim is premised on the multiple electronic signatures of the plaintiffs name on the IBA.
Plaintiffs verified complaint and affidavit in support, alleges, inter alia, multiple instances of sexual assault by Ortiz, a representative of the defendants while he was attempting to assist her in applying for and train for a position with the defendants. She was 18 years old and a high school senior at the time that she met her alleged attacker. Her knowledge of English was not as proficient as Spanish. The moving defendants' claim is primarily based on an application process and on assumptions that certain things occurred based on that process.
The Court recognizes that electronic signatures are permissible in New York State. The NYS Electronic Signatures and Records Act ("ESRA") directs that the use of an electronic signature shall have the same validity and effect as the use of a signature affixed by hand (State Technology Law § 304(2]). An electronic signature is defined as an electronic sound, symbol, or process, attached to or logically associated with an electronic record and executed or adopted by a person with the intent to sign the record (State Technology Law § 302 [3]). Of particular importance to this Court is the phrase executed and adopted by a person with the intent to sign the record.
The plaintiff has denied signing the IBA but admit signing a credit card authorization in the presence of Ortiz. The moving defendants have not demonstrated through admissible evidence that the plaintiff consented to signing the IBA document with an electronic signature. They did not present any evidence establishing that the plaintiff was the individual who entered the electronic signature and not someone else. There was no verification or authorization process to ensure that the electronic signature was being entered by the party who signature appears on the form. With the evidence presented by the moving defendants, it is just as likely that Ortiz or someone else, entered all the data on the IBA including the plaintiffs background information and social security number after obtaining that information from her as part of the application and recruitment process. The moving defendants evidentiary showing was in many instances unsupported and conclusory. It did not rebut plaintiffs claim that she did not sign the IBA or raise a triable issue of fact. In sum, the moving defendants have not clearly, explicitly, and unequivocally established that the plaintiff agreed to arbitrate her claims against the moving defendants by electronically signing the IBA.
The Court also notes, that the IBA itself is ambiguous. The sixth, seventh and eighth page of the document contains the following text above the printed and italicized names. The Sixth Page states:
"By accepting below, I confirm that: I have received by email, or hand delivery, and read the IBA Agreements &Disclosures. I have reviewed the agreements, commitments and Business Standards in the IBA Agreements &Disclosures and I agree to be bound by them if I am accepted as a Primerica independent contractor, including: Basic Agreement containing the terms that will apply to my relationship with Primerica, including an
ARBITRATION AGREEMENT. Other Agent Agreements under which I will be paid by the Primerica Companies. IBA Refund Policy and POL Refund and Cancellation Policy. I understand I need to access Primerica Online (POL) www.primericaonline.com and sign the "Primerica Online Subscription Agreement" containing the terms and conditions of my subscription. I, Maria Zambrano, Accept."
The Seventh Page states:
"By accepting below, I confirm that: I affirm all responses provided in this IBA are complete, true and correct. I understand that: A background check will be run on me. I am applying to be an independent contractor, and not an employee, of Primerica. I certify: I am exempt from backup withholding for U.S. income tax purposes and the IRS is not currently subjecting me to backup withholding for failure to properly report all interest or dividend income, I am a U.S. citizen or a U.S. resident alien (i.e., I am a U.S. person), and I do not have an exemption code for backup withholding under the Foreign Account Tax Compliance Act ("FATCA"). If I am subject to backup withholding, or if I have an exemption code for FATCA reporting, or if I have concerns about my status as a U.S. person, I understand it is my responsibility to contact the Home Office Field Compensation Department at (770) 381-5885 to inform them. If I have an insurance or securities license or registration, I authorize Primerica to access and review my information maintained by FINRA on its CRD system and by insurance regulators on the NIPR system (or any similar databases). I, Maria Zambrano, Accept."
The Eighth Pages states:
"Primerica Life Insurance Company, PFS Investments Inc., Primerica Financial Services, LLC, Primerica Client Services, Inc., National Benefit Life Insurance Company, Primerica, Inc., Primerica Financial Services Agency of New York, Inc., Primerica Mortgage, LLC, and other entities related by common ownership or affiliated by corporate control (each an "Affiliated Company" and collectively, "Company") may each request consumer reports (including but not limited to investigative consumer reports, financial reports, criminal background reports, or combinations of these) about you and may share any such consumer report obtained on you with any other Affiliated Company for the purposes described in this paragraph. The report is obtained as part of Company's regular agent selection and retention process (including verifying the accuracy of your responses in this IBA and in any license application) and in order to determine your continued qualification to be a Representative of Company, as well as your compliance with applicable laws and regulations and Company requirements and policies. Consumer reports contain information about creditworthiness, character, general reputation, personal
characteristics and mode of living. Primerica Life Insurance Company, PFS Investments Inc., National Benefit Life Insurance Company and Primerica Mortgage, LLC may request reports from: HireRight Consumer Relations and Disputes Department 14002 E. 21st Street, Suite 1200 Tulsa, Ok 74134 1-866-521-6995 Toll-Free Fax: 1-918-664-6995 National Insurance Producer Registry 1100 Walnut Street, Suite 1500 Kansas City, Missouri 64106 1-855-674-6477 With proper identification, you may contact these companies to inspect in-person (with no more than one other person) information maintained about you, or request by certified mail a copy of the information. The company will have personnel available to explain the information and provide a written explanation of any coded information. I, Maria Zambrano, Accept."
That portion of the Sixth Page which states, "I confirm that: I have received by email, or hand delivery, and read the IBA Agreements &Disclosures," may be reasonably interpreted to mean that the signer received a copy of the IBA form. That portion of the Sixth Page which states, "I have reviewed the agreements, commitments and Business Standards in the IBA Agreements &Disclosures and I agree to be bound by them if I am accepted as a Primerica independent contractor, including: Basic Agreement containing the terms that will apply to my relationship with Primerica, including an ARBITRATION AGREEMENT," may be reasonably interpreted to mean that the signer accepts all the matters stated in the seventh and eight page.
For instance, if the signer of the IBA agrees to a background check. The signer also authorizes Primerica to obtain consumer reports. This may include but is not limited to investigative consumer reports, financial reports, criminal background reports, or combinations of these reports about the applicant and Primerica may share any such consumer report it obtains with any other affiliated company. In addition, the signer is also authorizing Primerica to access and review the signer's information maintained by FINRA on its CRD system and by insurance regulators on the NIPR system (or any similar databases). These are merely some of the things a signer would be agreeing to by a fair reading of the pages containing the italicized name.
Nevertheless, nothing, in the IBA document may be reasonably interpreted to mean that a signer by electronically signing the sixth, seventh and eighth page of the IBA intended to arbitrate a claim premised on a sexual assault. Consequently, the moving defendants have also failed to establish that the plaintiffs claims, inclusive of sexual assault, were within the scope of any alleged arbitration agreement.
Accordingly, the moving defendants' motion is denied in its entirety.
CONCLUSION
The branch of the notice of motion jointly filed by defendants Primerica, Inc., Primerica Financial Services, LLC, Primerica Life Insurance Company, PFS Investments, Inc., Primerica Financial Services Agency of New York, Inc., and Richard P. Poch for an order pursuant to the Federal Arbitration Act, 9 U.S.C. § 1 et seq., and Civil Practice Law and Rules §§ 7503 (a) to dismiss the complaint is denied.
The branch of the notice of motion jointly filed by defendants Primerica, Inc., Primerica Financial Services, LLC, Primerica Life Insurance Company, PFS Investments, Inc., Primerica Financial Services Agency of New York, Inc., and Richard P. Poch for an order pursuant to CPLR 3211 (a) (1) and (7) to dismiss the complaint and for all costs and fees associated with bringing the instant motion is denied.
The branch of the notice of motion jointly filed by defendants Primerica, Inc., Primerica Financial Services, LLC, Primerica Life Insurance Company, PFS Investments, Inc., Primerica Financial Services Agency of New York, Inc., and Richard P. Poch for an order pursuant to CPLR 7503 (a) to stay the action and compel arbitration of the claims asserted in plaintiffs verified complaint is denied.
The moving defendants are directed to answer the verified complaint within thirty days after notice of entry of the instant decision and order.
The foregoing constitutes the decision and order of this Court.