IN THE CIVIL COURT OF THE CITY OF XXX
COUNTY OF KINGS
| DISCOVER BANK Plaintiff,
-against- WARREN E. WEXLER Defendant. |
INDEX NO.: 002483
NOTICE OF MOTION |
To the Plaintiff and all Attorneys of Record:
Please TAKE NOTICE that on [ENTER DATE], at [ENTER TIME] or soon thereafter, the Plaintiff herein will move this Court for an order compelling the Plaintiff to take this matter to arbitration.
This motion will be based on the grounds that Plaintiff initiated this action before first taking the matter to arbitration pursuant to the Plaintiff’s Terms and Conditions, as alleged herein.
Further, the motion will be based on this Notice of Motion and the Motion below, on the records and file herein, and on such evidence as may be presented at the hearing of the motion.
Dated: ________________
IN THE CIVIL COURT OF THE CITY OF XXXX
COUNTY OF KINGS
| DISCOVER BANK Plaintiff,
-against- WARREN E. WEXLER Defendant. |
INDEX NO.: 002483 |
MOTION TO COMPEL ARBITRATION
COMES NOW Defendant, pro se, and files this Motion to Compel and in support thereof, states as follows:
- Background
On January 20, 2020, the plaintiff, who is a foreign corporation, filed a formal complaint against the defendant at this court to allegedly recover the balance due and owing on a defaulted credit card account. Specifically, the Plaintiff alleging inter alia: that the defendant made credit card purchases and/or took money advances under a credit agreement, and that the defendant is still in default of the said credit. Further, that the defendant has failed to respond to demand for payment from the plaintiff.
The Plaintiff claims to have effected service of the complaint on February 6, 2020, which the Defendant objected on the grounds that the Defendant was improperly served.
On March 12, 2020, the Defendant requested for a Traverse Hearing.
In opposition to the Traverse Hearing, the Plaintiff filed a Motion for Summary Judgment on August 9, 2021. To which Defendant responded by a Motion to Stay the hearing on the Motion for Summary Judgment until the Court determines whether there was proper service.
Defendant avers that the Plaintiff was mandated to seek redress for any alleged wrong through arbitration as opposed to filing the matter at this Court. Page 4 of the Plaintiff’s Cardmember Agreement stated thus:
In the event of a dispute between you and us arising out of or relating to this Account or the relationships resulting from this Account or any other dispute between you or us, including, for example, a dispute based on a federal or state statute or local ordinance (“Claim”), either you or we may choose to resolve the Claim by binding arbitration, as described below, instead of in court. Any Claim (except for a Claim challenging the validity or enforceability of this arbitration agreement, including the Class Action Waiver) may be resolved by binding arbitration if either side requests it. THIS MEANS IF EITHER YOU OR WE CHOOSE ARBITRATION, NEITHER PARTY WILL HAVE THE RIGHT TO LITIGATE SUCH CLAIM IN COURT OR TO HAVE A JURY TRIAL. ALSO DISCOVERY AND APPEAL RIGHTS ARE LIMITED IN ARBITRATION.
Defendant therefore files this Motion to Compel the Plaintiff to settle the dispute herein by arbitration.
- Legal Arguments
According to New York CPLR 7503(a), a party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. The Courts have held that a party to an arbitration agreement is not aggrieved until litigation of an issue within the operation of the arbitration provision is attempted.” Koob v. IDS Fin. Servs., 213 A.D.2d 26, 30-31, 629 N.Y.S.2d 426, 431 (1stDept. 1995).
“[T]he judicial inquiry [when compelling arbitration] ends once it is determined that a valid agreement to arbitrate exists and that the matter in controversy falls within the scope of the agreement,” and so when those criteria are met, the arbitration should move forward. Liberty Mgt. & Constr. Ltd. V Fifth Ave. & Sixty-Sixth St. Corp., 208 A.D.2d 73, 80, 620 N.Y.S.2d 827 (1st Dep’t 1995).
Further, it is a long-settled principle that a party seeking to enforce a valid agreement to arbitrate in New York under CPLR 7503 (a) is entitled, as a matter of course, to injunctive relief against further prosecution of proceedings in tribunals of other jurisdictions concerning matters within the scope of the arbitration agreement.” Matter of Curtis, Mallet-Prevost, Colt & Mosle, LLP v Garza-Morales, 308 AD2d 261, 263 [1st Dept 2003].
In light of the foregoing, the Defendant avers that the Plaintiff was bound by the Arbitration terms at page 4 of their Cardmember Agreement. Therefore, the Plaintiff is precluded from filing this case at this Court for the aforesaid reason.
Wherefore, these and other premises considered, Defendant moves this Court for an order compelling the Plaintiff to settle the dispute herein through arbitration.
Respectfully submitted,
Dated: ________________
CERTIFICATE OF SERVICE
I hereby certify that on [ENTER DATE], a copy of the foregoing document has been sent to the Defendant in the following address:
DATED: _________________
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