ANTONIA BARONE PLAINTIFF RESPONDENT v. LINCOLN NATIONAL CORPORATION ET AL DEFENDANTS (2015)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously reversed on the law without costs and the matter is remitted to Supreme Court, Erie County, for further proceedings in accordance with the following memorandum:  Plaintiff commenced this action alleging fraud, negligence, breach of contract, breach of fiduciary duty, and violations of the General Business Law. James D. Haskins and Commonwealth Equity Services, Inc., doing business as Commonwealth Financial Network (defendants), brought a motion seeking, inter alia, to compel arbitration pursuant to CPLR 7503(a).   We conclude that Supreme Court properly determined that Matter of Brady v Williams Capital Group, L.P. (14 NY3d 459) applies in the financial/investment industry context (see generally Green Tree Fin. Corp.Alabama v Randolph, 531 U.S. 79, 88–91).   We further conclude, however, that the court erred in denying the motion to compel arbitration on the ground that arbitration in this case would be financially prohibitive to plaintiff without first directing plaintiff to apply for a waiver of the arbitration fee charged by the Financial Industry Regulatory Authority.   We therefore reverse the order and remit the matter to Supreme Court for that purpose before deciding the motion pursuant to the factors set forth in Brady (id. at 467).

Frances E. Cafarell

Clerk of the Court