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DEFENDANT FAILED TO DEMONSTRATE PLAINTIFF RECEIVED AND REVIEWED THE “TERMS AND CONDITIONS” ADDENDUM TO THE CONTRACT WHICH INCLUDED THE ARBITRATION CLAUSE; DEFENDANT’S EFFORT TO COMPEL ARBITRATION DENIED (FIRST DEPT).

The First Department, in a full-fledged opinion by Justice Higgitt, determined the defendant energy company did not demonstrate plaintiff agreed to an arbitration clause which defendant claimed was included in a four-page “Terms and Conditions” addendum to the contract. Essentially plaintiffs argued they were never provided with the four-page “Terms and Conditions.” Defendant relied on weak and contradictory evidence to the contrary, some of which was provided for the first time in a reply document (generally not considered by a motion court):

As a procedural matter, defendant could not employ its reply to remedy a basic deficiency in its prima facie showing … . After all, defendant’s theory of actual notice rested on its sales representative’s adherence to a business practice and defendant was unable to establish, in its underlying submission, the actual relevant practice (if any) that [the sales representative] used.

As a substantive matter, the inconsistent factual presentation between defendant’s underlying submission and its reply submission leaves a void on the critical question of what documents were reviewed with [plaintiff], undermining defendant’s contention that a particular business practice was employed and followed such that [plaintiff] received actual notice of the arbitration provision. Knight v Family Energy Inc., 2026 NY Slip Op 01599, First Dept 3-17-26

 

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