In Govender v. Brooklyn Immunotherapeutics LLC, No. 650847/2021, 2021 WL 5234682 (N.Y. Sup Ct, NY Cty. Nov. 09, 2021), an employment discrimination case, the court granted defendant’s motion to compel arbitration and to stay the action.
From the decision:
Plaintiff’s affirmation highlights that the arbitration clause is void under CPLR 7515 as it would require arbitration of plaintiff’ statutory discrimination claims (see Newton v. LVMH Moet Hennessy Louis Vuitton Inc., 192 A.D.3d 540 [1st Dep’t 2021]), and that the arbitration costs prevent plaintiff from pursuing the claims (see Green Tree Financial Corp — Ala. V. Randolph, 531 U.S. 79 ).
Defendants’ reply points to Fuller, “the FAA … preempts any inconsistent state law. Thus, CPLR 7515 cannot block … from enforcing its arbitration agreement with plaintiff to arbitrate his sexual harassment claims” (see Fuller v. Uber Tech., Inc., No. 150289/2020 [Sup. Ct. N.Y. Cty. Sept. 25, 2020]).
When “a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring such costs. Mere risk that the party will be saddled with prohibitive costs is too speculative to justify the invalidation of an arbitration agreement” (see Green Tree Fin. Corp. v. Randolph, 531 U.S. 79, 92 ). In the case at bar there is simply too much unknown as to what the cost maybe related to the arbitration process thus, due to mere speculation of potential cost is insufficient basis to preclude same from proceeding.