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Supreme Court of New York, Appellate Division, Fourth Department
November 20, 2015, Decided; November 20, 2015, Entered
1236 CA 14-02021
[EDITOR’S NOTE: This document reflects the format of the Official New York Appellate Division Reports.]
[*1371] [**653] Appeal from an order of the Supreme Court, Erie County (Timothy J. Walker, A.J.), entered June 26, 2014. The order, inter alia, granted defendants' cross motion to compel arbitration.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff appeals from an order that, inter alia, granted defendants' cross motion to compel arbitration, contending that Supreme Court erred in determining that she failed to demonstrate that she is unable to bear the costs of arbitration. As a preliminary matter, we note that plaintiff failed to apply for a waiver of the arbitration fee charged by the Financial Industry Regulatory Authority, which is a prerequisite for avoidance of arbitration on the ground that it would be financially prohibitive (see Barone v Haskins, 132 AD3d 1422, 1423, 17 NYS3d 665 ). In any event, we reject plaintiff's contention. The party seeking to "invalidate an arbitration agreement on the [***2] ground that arbitration would be prohibitively expensive [**654] . . . bears the burden of showing the likelihood of incurring such costs" (Green Tree Financial Corp.-Ala. v Randolph, 531 US 79, 92, 121 S Ct 513, 148 L Ed 2d 373 ; see Matter of Brady v Williams Capital Group, L.P., 14 NY3d 459, 466, 928 NE2d 383, 902 NYS2d 1 ), and the test for determining whether arbitration is prohibitively expensive in a particular case requires an examination of, among other factors, the cost differential between arbitration and litigation, and whether that differential "is so substantial as to deter the bringing of claims in the arbitral forum" (Brady, 14 NY3d at 467). Here, plaintiff submitted no evidence concerning the cost of litigating her claims in court, and she thus failed to meet her burden in opposition to defendants' cross motion.
We have reviewed plaintiff's remaining contentions and conclude that they lack merit. Present—Smith, J.P., Peradotto, Lindley, Valentino and DeJoseph, JJ.
Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.
133 A.D.3d 1371 *; 19 N.Y.S.3d 653 **; 2015 N.Y. App. Div. LEXIS 8655 ***; 2015 NY Slip Op 08592 ****
[****1] Frances A. Mariglio, Appellant, v Berthel Fisher & Company Financial Services, Inc., et al., Respondents.
Prior History: Mariglio v. Berthel Fisher & Co. Fin. Servs., Inc., 2014 N.Y. Misc. LEXIS 6245 (N.Y. Sup. Ct., June 24, 2014)
arbitration, cross motion, defendants', costs, prohibitively expensive, compel arbitration, inter alia, differential