Costo v. Deer Mtn. Day Camp, Inc.
This text of 2025 NY Slip Op 31562(U) (Costo v. Deer Mtn. Day Camp, Inc.) is published on Counsel Stack Legal Research, covering New York Supreme Court, New York County primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.
Opinion
Costo v Deer Mtn. Day Camp, Inc. 2025 NY Slip Op 31562(U) April 30, 2025 Supreme Court, New York County Docket Number: Index No. 160519/2024 Judge: Mary V. Rosado Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX NO. 160519/2024 NYSCEF DOC. NO. 22 RECEIVED NYSCEF: 04/30/2025
SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. MARY V. ROSADO PART 33M Justice __________ ,_____________x INDEX NO. 160519/2024 ALEXANDRA COSTO MOTION DATE 01/21/2025 Plaintiff, MOTION SEQ. NO. 001 - V -
DEER MOUNTAIN DAY CAMP, INC., DECISION + ORDER ON MOTION Defendant. - - - - - - - - - - - - --------X
The following e-filed documents, listed by NYSCEF document number (Motion 001) 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21 were read on this motion to/for DISMISS
Upon the foregoing documents, and after a final submission date of February 28, 2025,
Defendant Deer Mountain Day Camp, Inc.' s ("Defendant" or "Deer Mountain Day Camp") motion
to (a) dismiss Plaintiffs complaint for failure to disclose her address on the summons and
complaint; (b) to compel arbitration pursuant to CPLR 7503, and (c) to change venue from New
York County to Rockland County is denied.
On August 17, 201 7, Plaintiff, who was fourteen, attended Deer Mountain Day Camp when
she was allegedly injured while using a zipline. After turning eighteen, Plaintiff initiated this
lawsuit for personal injuries allegedly sustained. In response, Defendant moves to dismiss
Plaintiffs complaint pursuant to CPLR 305(a), or alternatively moves to compel arbitration or to
change venue to Rockland County. Plaintiff opposes.
As a preliminary matter, the Court denies the motion to dismiss pursuant to CPLR 305(a).
Failure to comply with a technical requirement of CPLR 305 does not warrant dismissal absent a
showing of prejudice due to the alleged defect (Cruz v New York City Hous. Auth., 269 AD2d 108
[1st Dept 2000]). Although Plaintiff did not state her address in the summons, that information 160519/2024 COSTO, ALEXANDRA vs. DEER MOUNTAIN DAY CAMP, INC. Page 1 of 4 Motion No. 001
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was provided in opposition to the motion, and to dismiss a case based on a picayune technicality
would run contrary to New York's public policy in favor ofresolving cases on the merits (see, e.g.
Ayala v Delgado, 278 AD2d 59 [1st Dept 2000]). Plaintiff produced evidence she resides in New
York County via an affidavit and documentation from her building. Thus, venue in New York
County is proper. Nor has Defendant shown how litigating in New York County is so burdensome
to warrant changing venue to nearby Rockland County. Therefore, the branch of the motion
seeking to change venue is denied.
Finally, the motion to compel arbitration is denied. Plaintiffs mother signed an agreement
with Defendant which contained an arbitration clause (NYSCEF Doc. 9 at ,i 14). The clause states:
"I agree that any claim or dispute regarding this agreement, the literature concerning Deer Mountain Day Camp Inc., the attendance of my child at Deer Mountain Day Camp Inc., or anything that relates to Deer Mountain Day Camp Inc. experience itself, shall be resolved exclusively by binding arbitration in Rockland County, New York, according to the then existing commercial rules of the American Arbitration Association .... The arbitrator and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this contract, including but not limited to any claim that all or any part of this contract is voidable."
Although New York courts favor arbitration, when parties dispute whether an agreement
to arbitrate exists, the presumption in favor of arbitration does not apply ( Oxbow Calcining USA
Inc. v American Indus. Partners, 96 AD3d 646, 649 [1st Dept 2012]). Here, the parties dispute
whether Plaintiff, who was an infant when her mother signed an agreement containing an
arbitration clause, is bound by her mother's agreement. Therefore, the presumption in favor of
arbitration does not apply.
Plaintiff is a non-signatory to the contract. Generally, non-signatories are not subject to
arbitration agreements (Belzberg v Verus Investments Holdings Inc., 21 NY3d 626, 630 [2013]).
Courts must exercise caution in imposing an obligation to arbitrate upon a non-signatory
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(Boroditsky v European Specialties LLC, 314 F.Supp.3d 487, 493 [SDNY 2018]). This is
especially true, where, as here, there is no clear, explicit and unequivocal agreement that Plaintiff,
as a non-signatory, could be compelled to arbitrate (Cammarata v lnfoExchange, Inc., 122 AD3d
459, 460 [1st Dept 2014]; see also HIG. Capital Management, Inc. v Ligator, 233 AD2d 270,
271 [1st Dept 1996]). Nowhere in the arbitration clause does it state that Plaintiffs mother was
binding Plaintiff to the arbitration agreement, or that Plaintiff would be forced to arbitrate her
claims against Defendant upon reaching adulthood. The provision states only "I agree" but does
not state "I agree on behalf of my child ... " (NYSCEF Doc. 9). The Court cannot rewrite the terms
of the agreement under the guise of interpretation (Ruttenberg v Davidge Data Systems Corp., 215
AD2d 191,197 [1st Dept 1995]).
Indeed, Defendant cites to no binding case law, or for that matter any published New York
decision, where a plaintiff was compelled to arbitrate based on a contract signed by the plaintiffs
parent when the plaintiff was an infant. Plaintiff cites two trial court decisions from Suffolk County
but does not provide the citation to those decisions. Defendant also disregards CPLR 1209, which
prohibits the arbitration of controversies involving an infant unless the representative of the infant
applies to court for arbitration and the Court orders arbitration. This provision of the CPLR exists
so that the courts, who are bound to protect infants, can ensure the rights and interests of infants
are not easily bargained away (Va/dimer v Mt. Vernon Hebrew Camps, Inc., 9 NY2d 21, 24
[1961]). Other courts have ruled recently and persuasively that non-signatory minors cannot be
compelled to arbitrate pursuant to arbitration agreements signed by their parents (B.F v
Amazon.com Inc., 858 Fed.Appx. 218 [9th Cir. 2021]). Based on binding and persuasive precedent,
the lack of any express language in the arbitration agreement that it would be binding on Plaintiff,
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and guided by the spirit of CPLR 1209, this Court finds Plaintiff, as a non-signatory, cannot be
compelled to arbitrate. Therefore, the motion to compel arbitration is denied.
Accordingly, it is hereby,
ORDERED that Defendant's motion is denied in its entirety; and it is further
ORDERED that the parties shall meet and confer immediately and submit a proposed
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