Indeed a question might be raised if the purpose of the forum selection clause in this case is not to "provide certainty and predictability in the resolution of [the dispute]" Sterling Nat. Bank, 35 AD3d at but rather to increase the likelihood of obtaining a default judgment against Defendant because of the distance he would have to travel and the expense he would incur to travel to and stay in New York City as compared to the small amount of money sought.
Moreover, even if the forum selection clause were not unconscionable, it would still be unenforceable because it would be unreasonable and unjust to enforce it. This case is more on point with Northern Leasing Sys.
In French, the Court found that the parties' dispute had no substantial nexus with New York because the lease agreement was signed in California where the defendant's business and the equipment were located and where Defendant is a resident with no ties to New York.
Quoting from Silver v Great American Insurance Company 29 NY2d , [] , the Court in French observed that "our courts should not be under any compulsion to add to their heavy burdens by accepting jurisdiction of a cause of action having no substantial nexus with New York.
After noting the defendant's advanced age and that the amount in dispute was minor, the Court held that it would be unreasonable to enforce the forum selection provision and granted the defendant's motion to dismiss on forum non conveniens grounds.
Here too there is no substantial nexus with New York because the lease agreement was signed by Defendant in California with the original lessor, a California corporation. French, 48 Misc 3d at Therefore, substantial justice would dictate that this case be heard in a California court. Plaintiff's reliance on U. The submissions of the parties do not establish that the transaction between the parties - the lease finance agreement - created a security interest as that term is defined in U.
Therefore, the applicability of U. Likewise based upon this record, Plaintiff's reliance on its assertion that it is a holder in due course and citation to U. Plaintiff bears the burden of establshing that it is holder in due course by showing it took the lease agreement for value, in good faith and without notice that it is subject to any defenses or claims. Plaintiff has failed to offer any evidence of its relationship with the original lessor, Global Leasing, and the vendor, Payment Systems, so that a determination can be made whether or not there is an identity of interest between either Plaintiff and Global Leasing or Plaintiff and Payment Systems.
Consequently, Plaintiff's reliance on U. Accordingly, Defendant's summary judgment motion is GRANTED solely to the extent that the Court holds that the forum selection clause in this lease agreement between these partes is illegal and unenforceable on substantive unconscionability grounds.
The determination on the remainder of Defendant's unconscionability defense will have to be made at a full trial in the appropriate California forum. See Lawrence, 48 AD3d at 8. Lease Fin. This opinion is uncorrected and will not be published in the printed Official Reports. Joseph I Sussman, P. DeJohn also argued that. The court rejected that argument, finding that DeJohn intended to purchase domain names for resale, and was thus not a "consumer" protected by that statute. Perhaps this explains DeJohn's failure to allege that traveling to New York to resolve disputes would not be inconvenient or fundamentally unfair.
How does one reconcile the seeming inconsistent results between the PayPal and DeJohn decisions? Perhaps the lesson to be learned is that a click-wrap agreement with reasonable terms such as the one in DeJohn is more likely to be enforced, even where there was no opportunity to negotiate its terms, but a click-wrap agreement with unconscionable terms as in PayPal may so offend the court that it is more likely to find an adhesion contract which is both procedurally and substantively unconscionable, and therefore enforceable.
Then again, perhaps these cases may show that courts will tend to be more protective of consumers than purchasers-for-resale. Or, perhaps these cases show that California courts may find a shrink-wrap agreement to be an adhesion contract in situations where courts in Illinois and other states may not. We will probably have to wait for additional cases and greater agreement among the different U. In the interim, companies relying on click-wrap agreements would be well advised to remove blatantly unreasonable terms and conditions from those agreements, particularly when dealing with consumers, and instead use even-handed terms comparable to those used by similarly situated companies in their respective industries.
Unless you are an existing client, before communicating with WilmerHale by e-mail or otherwise , please read the Disclaimer referenced by this link. The Disclaimer is also accessible from the opening of this website. As noted therein, until you have received from us a written statement that we represent you in a particular manner an "engagement letter" you should not send to us any confidential information about any such matter.
After we have undertaken representation of you concerning a matter, you will be our client, and we may thereafter exchange confidential information freely. Sign-in-wrap agreements. The court then defined a new category of agreement, the sign-in-wrap, which it noted was most frequently considered to be an enforceable clickwrap agreement by the district courts the court noted that no federal court of appeal has yet ruled on the enforceability of a sign-in-wrap contract.
Like a clickwrap agreement, the sign-in-wrap includes text which states that acceptance of the "terms of use" is required in order to continue. Unlike a clickwrap agreement, however, the sign-in-wrap does not require the user to click on a box showing acceptance of the "terms of use," but instead includes a statement like the statement on the Gogo website that, "By clicking 'NEXT' I agree to the terms of use and privacy policy.
The court then stated its opinion that sign-in-wrap agreements are "[a] questionable form of internet contracting," because they do not require the user to click on a box showing acceptance of the terms of use in order to continue, but only notify the user of the existence and applicability of the terms as the user is proceeding through the website's sign-in process.
A no answer to this question will tend to support a finding that the contract is not enforceable.. Did the design and content of the website, including the homepage, make the terms of use i. A no answer to this question will also tend to support a finding that the contract is not enforceable. Was the importance of the details of the contract such as terms dealing with venue and arbitration obscured or minimized by the physical manifestation of assent expected of a consumer seeking to purchase a product or subscribe to a service?
A yes answer to this question will support a finding that the contract is not enforceable. Did the merchant clearly draw the consumer's attention to material terms that would alter what a reasonable consumer would understand to be her default rights when initiating an online consumer transaction from the consumer's state of residence, including the right not to have a payment source charged without notice i.
A no answer to this question also supports a finding that the contract is not enforceable. Recommendations Although the Berkson decision is not binding on state or other federal courts, it is a lengthy decision that was intended to be cited as precedent by courts that are asked to determine the validity of online contracts in the future. When requesting consent to your terms of use or other online agreements from a user, you should either use 1 a clickwrap, which requires the user to affirmatively check a box that says "I Agree to the Terms of Use", or 2 a scrollwrap, which requires the user to scroll through the agreement before clicking on a separate "I agree" button to assent to the agreement.
Note that the Berkson court suggests that use of a scrollwrap agreement is preferable to use of a clickwrap. If you are using a browsewrap or a sign-in-wrap agreement, consider upgrading these agreements to clickwrap or scrollwrap agreements. Make sure that the button or box that the user must click through clearly and unequivocally acknowledges the user's agreement to be bound by the terms of use or other online agreement.
Disclose material unexpected terms in a conspicuous manner on the website. Consider including a separate disclosure of any terms which a court may consider to be a material unexpected term, such as terms providing for the automatic renewal of monthly charges, forced venue or compelled arbitration. For example, you may want to include a pop-up box that appears when a user scrolls over the link to the online agreement which warns users that the online agreement includes an arbitration clause and encourages them to read the agreement before proceeding.
Bank of Am. This opinion is uncorrected and will not be published in the printed Official Reports. Rooney, Esq. Roper, J. As to the second cause of action relied upon by plaintiff in which relief is sought and on which may support judgment as a matter of law for collection of defaulted debt, account stated: " 'As a general rule where an account is made up and rendered, he who receives it is bound to examine the same or to procure someone to examine it for him.
If he admits it to be correct it becomes a stated account and is binding on both parties. If instead of an express admission of the correctness of the account, the party receiving it keeps the same by him and makes no objection within a reasonable time, his silence will be construed into an acquiescence in its justness, and he will be bound by it as if it were a stated account.
An account stated is conclusive upon the parties unless fraud, mistake or other equitable considerations are shown which make it improper to be enforced.
To establish its prima facie entitlement to judgment as a matter of law to recover on an account stated, a plaintiff must show that the defendant received the plaintiff's account statements for payment and retained these statements for a reasonable period of time without objection see Castle Oil Corp.
The foregoing constitutes the opinion, decision, and order of This Honorable Court. They do have their day in court by appearing to oppose the motion for summary judgment in oral argument as well as in writing if they so choose. A more sophisticated and computer-savvy defendant appears in court to tell their side of the story to argue their opposition armed with self-help websites.
Albeit, most pro-se defendants generally have difficulty understanding the legal concept of summary judgment. Footnote 3: Weidman v Tomaselli, NY Misc LEXIS , 81 Misc 2d , NYS 2d holds, "A contract of adhesion is a contract in relation to a necessity of life, drafted by or for the benefit of a party for that party's excessive benefit, which party uses its economic or other advantage to offer the contract in its entirety solely for acceptance or rejection by the offeree.
Thus, the elements of a contract of adhesion are: 1 a necessity of life; 2 a contract for the excessive benefit of the offeror; 3 an economic or other advantage of the offeror; and 4 the offer of the proposed contract on a take it or leave it basis. All four elements must be present for a contract to be deemed a contract of adhesion. The element which is the sine qua non of a contract of adhesion is that the contract's subject matter is a necessity of life. The court takes judicial notice that food, clothing, shelter, and employment are necessities of life" id at Although a credit card is not a luxury, neither is it a necessity.
Ergo, although credit card agreements are indeed "take it or leave it", one-sided with plaintiff-creditor maintaining the superior bargaining position of power, such agreements may not be considered contracts of adhesion since the power to reject creditor's offer remains with defendant-debtor. Arguendo, there may be a persuasive argument that credit cards have indeed become "a necessity of life" since in many facets of daily life there has been growing business models whereby a credit card has become the sole acceptable currency, tantamount to and in certain instances superior to cash and its strictly circumscribed hybrid, the debit card, in which to acquire those "necessities of life.
Subdivision b of that section requires that the creditor of any account under an open-end consumer credit plan shall transmit to the obligor, for each billing cycle at the end of which there is an outstanding balance in that account or with respect to which a finance charge is imposed, a statement setting forth, inter alia, the address to be used by the creditor "for the purpose of receiving billing inquiries from the obligor.
Jacobs v Marine Midland Bank, N. Footnote 5:"Please remember: If you find an error on your bill, you must notify us no later than 60 days after we sent your first statement on which the error or problem appeared to preserve your billing rights" see fn 4, supra.
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