Arbitration is waivable

In my other life, I represent all sorts of people who have been wronged.  One of the worst things I encounter when advocating for people who have had their insurance coverage wrongfully disclaimed is the arbitration clause.  Imagine having to travel to California to file an arbitration when an insurance carrier abandons you prior to trial in NY  because you allegedly violated a condition of the medical malpractice policy?  It is reality, and the FAA will not protect you.

This case involves arbitration under Article 75 and a more reasonable standard in deciding whether the arbitration clause may be bypassed.  This is a good case – although it has so little to do with no-fault here in NY.  But, it is interesting.

Adams v Kent Sec. of N.Y., Inc., 2017 NY Slip Op 09274 (1st Dept. 2017)

“Applying the foregoing standard, we hold that plaintiff has made a preliminary showing that the fee sharing and venue provisions in the arbitration agreement have the effect of precluding him from pursuing his statutory wage claim in arbitration. We remand for further proceedings, consistent with Brady, which, at a minimum, would include proof of plaintiff’s income and assets, as well as proof of the expected costs and fees to arbitrate this dispute in Florida. Because the parties’ arbitration agreements contains a severability clause, in the event plaintiff prevails on his claim that the aforementioned fee sharing and venue provisions should be held unenforceable under Brady, the matter should proceed to arbitration in New York, with defendant to bear the costs of the arbitration.”

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