Williams v. Roman Catholic Diocese of Brooklyn & Queens

73 Misc.3d 1033

157 N.Y.S.3d 871

Marcus WILLIAMS, Plaintiff,

v.ROMAN CATHOLIC DIOCESE OF BROOKLYN & QUEENS, Angelo B. Pezzullo, David A. Pezzullo and Revel Transit Inc., Defendants.

Index No. 719352/20

Supreme Court, Queens County, New York.

Decided on November 10, 2021

Attorneys for Plaintiff, Sol Z. Sokel, Esq., Gregory Spektor & Associates P.C., 1 Cross Island Plaza, Suite 203C, Rosedale, New York 11422, 718-528-5272

Attorneys for Defendant Revel Transit, Inc., Jennifer Bruder, Esq., Haworth Barber & Gerstman, Esqs., 45 Broadway #2110, New York, New York 10006, 212-952-1100

Attorneys for Defendants Roman Catholic Diocese of Brooklyn & Queens, Angelo B. Pezzullo and David A. Pezzullo, Ashley A. Hughes, Esq. and Albert J. Galatan, Esq., Scahill Law Group P.C., 1065 Stewart Avenue, Suite 210, Bethpage, New York 11714, 516-294-5200

Robert I. Caloras, J. Motion by defendant Revel Transit Inc. (Revel) to change the venue of this action under CPLR 501, 510(1) and 511 ; a motion by plaintiff Marcus R. Williams to stay the arbitration demanded by Revel pursuant to CPLR 7503(b) and to dismiss Revel's 18th affirmative defense (demand for arbitration) pursuant to CPLR 3211(b) ; a cross motion by Revel to compel arbitration; and a cross motion by defendants Roman Catholic Diocese of Brooklyn & Queens, Angel B. Pezzullo and David A. Pezzullo (collectively, the RC Defendants) to dismiss Revel's demand for arbitration pursuant to CPLR 3211 and 7503(b).

It is ordered that these motions and cross motions are consolidated for purposes of disposition and are determined as follows:

Plaintiff commenced this action to recover from personal injuries allegedly sustained as a result of motor vehicle accident on July 11, 2020. The motor vehicle operated by David Pezzullo and owned by Angelo Pezzullo was lawfully proceeding through a green light at or near the intersection of 31st Avenue and 47th Street in Queens, New York when plaintiff, who was operating an electric moped, proceeded through the same intersection and collided with David Pezzullo's vehicle. Plaintiff alleges that the accident occurred due to the mechanical failure of his moped, which he had leased under an agreement with Revel entered on or about June 17, 2020 (the Rental Agreement). Revel is a business that facilitates the reservation, support and invoicing of short-term electric moped rentals via a mobile web application (the Revel App).

Plaintiff commenced this action in Queens County based on his residence. In its answer, Revel included a demand to change venue to New York County based on the forum selection clause in Section 17 of the Rental Agreement, which designated New York County as the exclusive venue for litigation "except for small claims court actions which may be brought in New York, NY or in the county where [the user] resides." In moving for change of venue, Revel relies on Section 17 to argue that that New York County, rather than Queens County, is the proper venue in this matter.

Under CPLR 510(1), grounds for changing the place of trial include improper venue. On an application to change venue, a defendant must show that the county originally chosen is improper and that the defendant's choice of venue is proper (id. ; see Joseph v. Kaufman , 188 A.D.3d 847, 135 N.Y.S.3d 428 [2020] ). Once the defendant meets this burden, then a plaintiff must establish, in opposition, that the venue selected was proper (see Harvey v. Ogunfowora , 179 A.D.3d 775, 776, 113 N.Y.S.3d 901 [2020] ). CPLR 501, which governs contractual provisions fixing venue, allows written agreements designating the place of trial to be enforced upon motion. "A contractual forum selection clause is prima facie valid and 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 the selected forum would be so gravely difficult that the challenging party would, for all practical purposes, be deprived of its day in court" ( Casale v. Sheepshead Nursing & Rehabilitation Ctr. , 131 A.D.3d 436, 436-437, 13 N.Y.S.3d 904 [2015] [internal citations and quotation marks omitted]; see also Stravalle v. Land Cargo, Inc. , 39 A.D.3d 735, 736, 835 N.Y.S.2d 606 [2007] ).

Here, the forum selection clause in Section 17 is prima facie valid and enforceable. In opposition, plaintiff argues that the language therein allows the action to be brought in the county of plaintiff's residence, and that such a reading is consistent with other terms of the Rental Agreement (e.g. Section 1.14) prohibiting operation of the rented moped across major bridges and tunnels or outside the designated "Home Zone." Plaintiff further argues that such venue clause is unreasonable and unjust, in contravention of public policy, and invalid due to fraud or overreaching because he never signed nor had an opportunity to review such Rental Agreement purporting to waive his right to trial in the county where he resides. He avers that he was unreasonably and unfairly deprived of a meaningful opportunity to review and assent to the Rental Agreement, including the forum selection clause.

In determining whether a party to an online contract has agreed to accept its terms, courts will look to the particular circumstances of the website or mobile application usage for evidence that the user had actual or constructive notice of the terms of agreement and consider whether a reasonably prudent person would be put on notice of the provision in the contract, and whether the terms thereof were reasonably communicated to the user (see Schnabel v. Trilegiant Corp. , 697 F.3d 110, 120 [2d Cir. 2012] ; Fteja v. Facebook, Inc. , 841 F. Supp. 2d 829, 833 [S.D.N.Y. 2012] ; Stonehill Capital Mgt. LLC v. Bank of the W. , 28 N.Y.3d 439, 448, 45 N.Y.S.3d 864, 68 N.E.3d 683 [2016] ). A person is on inquiry notice if a "reasonably prudent offeree would be on notice of the terms at issue" ( Schnabel , 697 F.3d at 120 ). Such agreement need not be signed as long as there is other proof that the parties intended to be bound by documents containing arbitration obligations (see Highland HC v. Scott , 113 A.D.3d 590, 594, 978 N.Y.S.2d 302 [2014] ).

The court finds that plaintiff affirmatively activated toggle buttons adjacent to clear and conspicuous blue hyperlinks in the Revel App's Sign-Up Flow, indicating assent therein and allowing him to proceed to the next screen and through the series of screens to completion. The affidavit of Asa Block (Block), Revel's Director of Product, states that it would have been impossible for plaintiff to complete the Sign-Up Flow and agree to Revel's contractual terms in order to gain access to mopeds through Revel without confirming his agreement to the Rental Agreement (cf. Applebaum v. Lyft, Inc. , 263 F. Supp. 3d 454, 466 [2017] [court found that a reasonably prudent consumer would not have been on inquiry notice of defendant's terms of service where the user could proceed without clicking on the hyperlink containing such terms]). There is also no evidence that plaintiff was acting under duress or otherwise fraudulently induced to enter the contract by downloading the Revel App and proceeding through the Sign-Up Flow (see AT & T Mobility LLC v. Concepcion , 563 U.S. 333, 339, 131 S.Ct. 1740, 179 L.Ed.2d 742 [2011] ). Despite plaintiff's contentions that the forum selection clause was difficult to read due to the small print and was not clearly and conspicuously identified, such print is small but legible, and the forum selection clause at issue is printed in the same size as the rest of the contract.

Thus, as plaintiff was on inquiry notice of Revel's terms of use in the Rental Agreement, plaintiff was bound thereto by virtue of electronically clicking to accept the contract (see Meyer v. Uber Techs., Inc. , 868 F.3d 66, 75 [2d Cir. 2017] ).

Likewise, the RC Defendants, who argue that they could not be bound to the Rental Agreement as non-parties thereto, fail to set forth any reasons that enforcement of the forum selection clause would be unreasonable, unjust, in contravention of public policy, or invalid due to fraud or overreaching. Moreover, the parties fail to demonstrate that a trial in New York County could be so gravely difficult that they would be deprived of their day in court (see Couvertier v. Concourse Rehabilitation & Nursing, Inc. , 117 A.D.3d 772, 773, 985 N.Y.S.2d 683 [2014] ). Thus, contrary to plaintiff and the RC Defendants’ arguments, the forum selection clause in the Rental Agreement is binding on the parties to this litigation (see Casale , 131 A.D.3d at 437, 13 N.Y.S.3d 904 ; Pratik Apparels, Ltd. v. Shintex Apparel Group, Inc. , 96 A.D.3d 922, 923, 946 N.Y.S.2d 507 [2012] ).

Turning to the arbitration clause in Section 17 of the Revel Agreement, Revel included in its answer to the complaint a demand for arbitration (18th affirmative defense). CPLR 7503(a) permits a "party aggrieved by the failure of another to arbitrate [to] apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under ( CPLR 7503[b] ), the court shall direct the parties to arbitrate." Likewise, CPLR 7503(b) allows "a party who has not participated in the arbitration and who has not made or been served with an application to compel arbitration [to] apply to stay arbitration on the ground that a valid agreement was not made or has not been complied with...."

Plaintiff argues that the arbitration clause cannot be enforced because it is prohibited under General Business Law (GBL) § 399-c, which provides that an arbitration clause shall be null and void in a contract of sale for customer goods, defined therein to include services. Revel, however, contends that the contract at issue involves interstate commerce and therefore triggers the Federal Arbitration Act (FAA) under ...