Opinion
15147 Index No. 31751/19E Case No. 2020-04046
01-27-2022
Rhovan CURTIS, Plaintiff–Appellant, v. Robert MARINO et al., Defendants–Respondents.
Miller Law, PLLC, New York (Meredith R. Miller of counsel), for appellant. Littler Mendelson, P.C., Melville (Ellen R. Storch and Matthew R. Capobianco of counsel), for respondents.
Miller Law, PLLC, New York (Meredith R. Miller of counsel), for appellant.
Littler Mendelson, P.C., Melville (Ellen R. Storch and Matthew R. Capobianco of counsel), for respondents.
Acosta, P.J., Renwick, Moulton, Scarpulla, Higgitt, JJ.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about September 2, 2020, which granted defendants’ motion to dismiss the complaint as untimely under the parties’ arbitration agreement, unanimously affirmed, without costs. Supreme Court properly found the arbitration agreement enforceable, as its terms were not "substantively unconscionable when made" ( Ortegas v. G4S Secure Solutions [USA] Inc., 156 A.D.3d 580, 580, 65 N.Y.S.3d 693 [1st Dept. 2017], quoting Gillman v. Chase Manhattan Bank, 73 N.Y.2d 1, 10, 537 N.Y.S.2d 787, 534 N.E.2d 824 [1988] ). The contractual shortening of the statute of limitations for plaintiff's claims under the New York City and New York State Human Rights Law to one year is "inherently reasonable" ( Ortegas, 156 A.D.3d at 580, 65 N.Y.S.3d 693 [limitations period shortened to six months]; see also Executive Law § 297[5] [one year to file administrative complaints]; Administrative Code of City of N.Y. § 8–109[e] [same]). Furthermore, to the extent the agreement requires arbitration of plaintiff's discrimination claims, it is not unconscionable as arbitration offered plaintiff an opportunity to pursue his claims (see Newton v. LVMH Moet Hennessy Louis Vuitton Inc., 192 A.D.3d 540, 541, 140 N.Y.S.3d 699 [1st Dept. 2021] ).
We also reject plaintiff's contention that CPLR 7515, which bars mandatory arbitration of discrimination claims only prospectively ( CPLR 7515[b][i] ), and post-dates the arbitration agreement, requires invalidation of the arbitration provision on public policy grounds (see Newton, 192 A.D.3d at 54, 140 N.Y.S.3d 699).
Dismissal is warranted under the terms of the arbitration agreement, which grants Supreme Court authority to determine timeliness without reference to an arbitrator. Plaintiff admittedly failed to bring his dispute or his unconscionability claim to arbitration in the manner prescribed by the agreement, even after defendants provided his attorney with the agreement and offered to submit to arbitration before the one-year period expired. Thus, by the terms of the agreement, his claims are "time-barred and permanently and irrevocably waived and released." Furthermore, the arbitration agreement forecloses the application of the tolling provision of CPLR 205(a), since it deprives arbitrators of any authority to consider the merits of a dispute brought after one year, and requires dismissal of claims as waived, released, or time barred.