PLAINTIFF ENTITLED TO CONSIDERATION WHETHER ENFORCING THE AGREEMENT TO ARBITRATE THIS EMPLOYMENT DISPUTE WOULD, BECAUSE OF THE COSTS INVOLVED, EFFECTIVELY PRECLUDE PLAINTIFF FROM PURSUING HIS CLAIM (FIRST DEPT).

The First Department, reversing Supreme Court, determined plaintiff was entitled to consideration whether compliance with the agreement to arbitrate would, because of the costs involved, effectively prohibit plaintiff from pursing his claim alleging untimely payment of wages:

… [T]he court erred in failing to address plaintiff’s contention that, because of his financial circumstances, requiring him to arbitrate, and to do so in Florida, would preclude him from pursuing his claims (Matter of Brady v Williams Capital Group, L.P., 14 NY3d 459 [2010]). Acknowledging the “strong state policy favoring arbitration [] and the equally strong policy requiring the invalidation of such agreements when they contain terms that could preclude a litigant from vindicating his/her statutory rights in the arbitral forum” … , the Court of Appeals in Brady held, as here relevant, that,

“in this context, the issue of a litigant’s financial ability [to arbitrate] is to be resolved on a case-by-case basis and that the inquiry should at minimum consider the following questions: (1) whether the litigant can pay the arbitration fees and costs; (2) what is the expected cost differential between arbitration and litigation in court; and (3) whether the cost differential is so substantial as to deter the bringing of claims in the arbitral forum. Although a full hearing is not required in all situations, there should be a written record of the findings pertaining to a litigant’s financial ability” … .

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 …

… While Brady did not expressly address this issue, by extension of its logic, the risk of plaintiff having to pay defendant’s attorneys’ fees, if it prevails, may be taken into account in considering whether the total costs associated with arbitration preclude plaintiff from pursuing his claim in the arbitral forum. Adams v Kent Sec. of N.Y., Inc., 2017 NY Slip Op 09274, First Dept 12-28-17