Hawke v. ADK Aquatics LLC, et al

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
ELANORE HAWKE
Plaintiff,
v.
ADK AQUATICS LLC a/k/a ADIRONDACK WATER
SPORTS a/k/a LAKE PLACID WATER SPORTS, and
WESLEY CANNY
Defendants.
8:25-cv-00441 (BKS/DJS)
Appearances:
For Plaintiff:
Jordan Merson
Kevin Deng
Nathan Werksman
Merson Law, PLLC
950 Third Avenue, 18th Floor
New York, NY 10022
For Defendants:
James E. Mercante
Richard Gonzalez
Gallo Vitucci Klar LLP
90 Broad Street, 12th Floor
New York, NY 10004
Hon. Brenda K. Sannes, Chief United States District Judge:
MEMORANDUM-DECISION AND ORDER
I. 	INTRODUCTION
Plaintiff Elanore Hawke brings this diversity action against ADK Aquatics LLC a/k/a
Adirondack Water Sports a/k/a Lake Placid Water Sports and its alleged owner, Wesley Canny,
alleging negligence and negligent hiring, supervision, and retention arising out of an injury
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Plaintiff suffered while water-skiing using equipment provided by and a boat operated by
Defendants.1 (Dkt. No. 1). Defendants move to dismiss the complaint and compel arbitration.
(Dkt. No. 12). The motion has been fully briefed. (Dkt. Nos. 13, 16, 18). For the reasons stated
below, Defendants’ motion is denied without prejudice because the briefing is not sufficient for
the Court to rule on the motion.
II. 	FACTS
In support of their motion, Defendants have submitted an affidavit from defense counsel
attaching as an exhibit, a “Release of Liability, Assumption of Risk, Waiver of Claims,
Indemnification & Binding Arbitration Agreement.” (Dkt. No. 12-1, at 2; Dkt. No. 12-3, at 2–3).
The Agreement, which is dated August 7, 2024, provides, in part:
The Participant [identified as a signatory to the agreement] . . . hereby agrees to
submit any dispute, claim, or controversy, relating to and/or arising from (a)
this . . . Binding Arbitration Agreement, (b) Participant’s participation in the
Activities, and/or (3) [sic] any other interaction between the Participant and the
Host [identified as ADK Aquatics LLC], including the determination of the scope
or applicability of this agreement to arbitrate, to binding arbitration.”
(Dkt. No. 12-3, at 3; Dkt. No. 13-2, at 3). Defendants have not provided any affidavits
concerning the execution of this agreement.
In opposition to the motion, Plaintiff has submitted unsworn declarations from herself
and her husband describing their water sports excursion on August 7, 2024, using Defendant
ADK Aquatics’s services. (Dkt. No. 16-3; Dkt. No. 16-4). 2 Two of Defendant’s employees took
1 Initially, the parties did not agree on the basis for subject-matter jurisdiction. Plaintiff’s complaint asserted that the
Court had diversity jurisdiction under 28 U.S.C. § 1332. (Dkt. No. 1, ¶ 5). Defendants, on the other hand, alleged that
the Court had admiralty jurisdiction under 28 U.S.C. § 1333. (Dkt. No. 13, at 4–5). The Court issued a text order
notifying the parties that Plaintiff did not adequately allege diversity jurisdiction and Defendants did not sufficiently
allege admiralty jurisdiction. (Dkt. No. 20). The parties submitted a joint status report agreeing that this Court has
diversity jurisdiction over Plaintiff’s lawsuit under 28 U.S.C. § 1332. (Dkt. No. 21). The Court finds that the
allegations in the complaint and joint status report are sufficient to establish this Court’s diversity jurisdiction.
2 Although the Court may not consider the facts in these unsworn declarations for the purposes of this motion, see
Section IV.A, infra, the Court has provided a summary of the facts in the declarations for context.
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Plaintiff and her family out on a boat. (Dkt. No. 16-3, ¶ 4). On Plaintiff’s turn to waterski,
Defendant’s employee helped her into the ski and tightened the binding on her foot. (Id. at ¶ 6).
Plaintiff commented about the tightness of the binding, and Defendant’s employee replied that it
was “more of a competitive binding” and “meant to keep the user locked in.” (Id.).
During her waterskiing run, Plaintiff tried to cross the wake, but “suddenly tripped going
into [her] next turn.” (Id. at ¶ 8). Her “foot and ankle slapped the water hard and the pain
knocked the wind out of [her] making it hard for [her] to talk.” (Id.). After feeling a “sharp pain”
in her foot, Plaintiff ended her turn. (Id. at ¶ 9). While waiting for the boat to return for her, she
could not release the ski’s binding. (Id.). Plaintiff needed help getting back onto the boat because
of the “extreme pain” she was experiencing. (Id. at ¶¶ 9–10). Plaintiff noticed that her foot and
ankle had “swollen significantly, with blue bruising forming under the bottom of [her] foot and
inside [her] ankle bone.” (Id. at ¶ 12).
Plaintiff did not want her children to worry, so she encouraged her daughter to go on
another wake surfing run. (Id. at ¶ 14). During her daughter’s turn, Plaintiff’s pain was “so
severe that [her] teeth were chattering” and she “began shivering and shaking all over.” (Id. at ¶
15). Plaintiff suspected that her foot was broken and told her husband. (Id.). Her husband told
Defendant’s employees that they were done and wanted to go back to the dock. (Dkt. No. 16-4, ¶
16).
Before Plaintiff and her family left the boat, Defendant’s employee asked Plaintiff’s
husband to pay for the excursion. (Id. at ¶ 18). Defendant’s employee approached Plaintiff and
her husband and made a statement to the effect of, “I am really concerned I did not get you to
sign the form. Please sign it or my boss is going to kill me,” (Dkt. No. 16-3, ¶ 21), or “Guys, I’m
really concerned that I didn’t get you to sign the waiver. The one time I don’t get someone to
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sign a waiver and someone gets hurt. If you could please sign it or my boss is going to kill me,”
(Dkt. No. 16-4, ¶ 21). Before then, neither Plaintiff nor her husband had signed any waivers or
agreements with Defendant ADK Aquatics. (Dkt. No. 16-3, ¶ 3; Dkt. No. 16-4, ¶ 3).
Plaintiff stated that “[a]t that point, my pain was blinding, and I couldn’t think straight. I
was in shock, was experiencing 10/10 pain in my leg, and my entire body had started shaking
from the pain. In that moment, I was eager to do whatever we needed to get to a hospital.” (Dkt.
No. 16-3, ¶ 22). Plaintiff claims that she signed the form containing the arbitration agreement
because “it felt like [they] had no choice, and [she] just had to get out of that situation to seek
medical attention.” (Id. at ¶ 23). She said that “no one explained to [her] what was in the form.”
(Id.). She did not read the form because, “[she] was not of clear mind and was in a state of
traumatic shock, anxiety, and experiencing extreme pain, and felt [she] needed to sign them to
leave Lake Placid Water Sports to get to a hospital.” (Id. at ¶ 24). After Plaintiff and her husband
signed the form (Dkt. No. 16-3, ¶ 23; Dkt. No. 16-4, ¶ 23), Plaintiff and her family drove to a
hospital. (Dkt. No. 16-3, ¶ 26).
III. 	LAW GOVERNING ARBITRATION AGREEMENTS
“When a movant manifests an intent to compel arbitration,” like here, “district courts
have ‘treated motions to dismiss based on mandatory arbitration clauses as motions to compel
arbitration.’” Zachman v. Hudson Valley Fed. Credit Union, 49 F.4th 95, 100 n.3 (2d Cir. 2022)
(quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 230 (2d Cir. 2016)). Because Defendants
have explicitly asked the Court to order arbitration, the Court treats Defendants’ motion as a
motion to compel arbitration. See Nicosia, 834 F.3d at 230.
The Federal Arbitration Act, 9 U.S.C. § 1, et seq., provides that “[a] written provision in
any . . . contract evidencing a transaction involving commerce . . . to settle by arbitration a
controversy . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at
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law or in equity for the revocation of any contract . . .” 9 U.S.C. § 2. The FAA thus reflects a
“federal policy favoring arbitration agreements,” AT&T Mobility LLC v. Concepcion, 563 U.S.
333, 346 (2011) (quoting Moses H. Cone Mem’l Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 24
(1983), and puts them “upon the same footing as other contracts.” Schnabel v. Trilegiant Corp.,
697 F.3d 110, 118 (2d Cir. 2012) (quoting Scherk v. Alberto-Culver Co., 417 U.S. 506, 511
(1974). To that end, the FAA allows “[a] party aggrieved by the alleged failure, neglect, or
refusal of another to arbitrate under a written agreement for arbitration [to] petition any United
States district court . . . for an order directing that such arbitration proceed in the manner
provided for in such agreement.” 9 U.S.C. § 4.
Because the FAA “does not require parties to arbitrate when they have not agreed to do
so,” Schnabel, 697 F.3d at 111 (quoting Volt Info. Scis., Inc. v. Board of Trs. of Leland Stanford
Jr. Univ., 489 U.S. 468, 478 (1989)), the first question on a motion to compel arbitration is
“whether such agreement exists between the parties,” Meyer v. Uber Techs., Inc., 868 F.3d 66,
73 (2d Cir. 2017) (citing Schnabel, 697 F.3d at 118); see also Barrows v. Brinker Rest. Corp., 36
F.4th 45, 50 (2d Cir. 2022), under the applicable state’s contract law, Zachman, 49 F.4th at 101
(citing Schnabel, 697 F.3d at 119). This question is for the Court to decide because “parties may
not delegate to the arbitrator the fundamental question of whether they formed the agreement to
arbitrate in the first place.” See Doctor's Assocs., Inc. v. Alemayehu, 934 F.3d 245, 251 (2d Cir.
2019) (citing Granite Rock Co. v. Int’l Bhd of Teamsters, 561 U.S. 287, 299–301 (2010); see
also Schnabel, 697 F.3d at 118 (“Inasmuch as the arbitrator has no authority of any kind with
respect to a matter at issue absent an agreement to arbitrate, the question of whether such an
agreement exists and is effective is necessarily for the court and not the arbitrator.” (citing AT&T
Techs., Inc. v. Commc’ns Workers of Am., 475 U.S. 643, 648–49 (1986)).
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If the Court is satisfied that the parties formed an arbitration agreement, it may also
resolve other threshold questions of arbitrability unless the parties clearly and unmistakably
provide otherwise. See Nicosia, 834 F.3d at 229 (citing Howsam v. Dean Witter Reynolds, Inc.,
537 U.S. 79, 83 (2002); see also First Options of Chi., Inc. v. Kaplan, 514 U.S. 938, 944 (1995)
(“Courts should not assume that the parties agreed to arbitrate arbitrability unless there is ‘clea[r]
and unmistakabl[e]’ evidence that they did so.” (alteration in original)). “‘Questions of
arbitrability’ is a term of art covering ‘dispute[s] about whether the parties are bound by a given
arbitration clause’ as well as ‘disagreement[s] about whether an arbitration clause in a
concededly binding contract applies to a particular type of controversy.’” Republic of Ecuador v.
Chevron Corp., 638 F.3d 384, 393 (2d Cir. 2011) (alternation in original) (quoting Howsam, 537
U.S. at 84; see also Granite Rock, 561 U.S. at 300 (“[O]ur precedents hold that courts should
order arbitration of a dispute only where the court is satisfied that neither the formation of the
parties’ arbitration agreement nor (absent a valid provision specifically committing such disputes
to an arbitrator) its enforceability or applicability to the dispute is in issue.” (first emphasis in
original) (second emphasis added)).
Challenges to the enforceability of an arbitration agreement encompass “generally
applicable contract defenses, such as fraud, duress, or unconscionability.” AT&T Mobility LLC,
563 U.S. at 339. Like challenges to an arbitration agreement’s formation, challenges to the
agreement’s enforceability are governed by the applicable state’s contract law. See Melendez v.
Ethical Culture Fieldston Sch., 789 F. Supp. 3d 316, 327 (S.D.N.Y. 2025). But unlike formation
challenges, see Granite Rock Co., 561 U.S. at 296–97, enforceability challenges must be made
specifically to the arbitration agreement in order for the Court to hear them. Melendez, 789 F.
Supp. 3d at 327 (“[T]he Court must be assured that challenges to the arbitration provision . . . are
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to that provision specifically, rather than to the parties’ entire agreement.” (citing Pilon v.
Discovery Commc’ns, LLC, 769 F. Supp. 3d 273, 286 (S.D.N.Y. 2025)); see also Buckeye Check
Cashing, Inc., 546 U.S. at 445–46 (“[A]n arbitration provision is severable from the remainder of
the contract . . . [U]nless the challenge is to the arbitration clause itself, the issue of the contract’s
validity is considered by the arbitrator in the first instance.”). Even where the alleged basis for
the contract’s invalidity applies equally to the arbitration agreement, “the basis of challenge
[must] be directed specifically to the agreement to arbitrate before the court will intervene.”
Rent-a-Ctr., W., Inc. v. Jackson, 561 U.S. 63, 71 (2010).
IV. 	STANDARD OF REVIEW
On a motion to compel arbitration, the Court applies a “standard similar to that applicable
for a motion for summary judgment.” Nicosia, 834 F.3d at 229 (quoting Bensadoun v. Jobe-Riat,
316 F.3d 171, 175 (2d Cir. 2003). This standard requires the Court to consider “all relevant,
admissible evidence submitted by the parties,” Meyer, 868 F.3d at 74, which includes
“depositions, documents, electronically stored information, affidavits or declarations,
stipulations . . . admissions, [and] interrogatory answers. Fed. R. Civ. P. 56(c)(1)(A); see also
Meyer, 868 F.3d at 74. Based on this evidence, the Court “draw[s] all reasonable inferences in
favor of the non-moving party.” Nicosia, 834 F.3d at 229.
“The party seeking to compel arbitration bears an initial burden of demonstrating that an
agreement to arbitrate was made.” Zachman, 49 F.4th at 101–02. “This burden does not require
the moving party to show that the agreement would be enforceable—only that an agreement to
arbitrate existed.” Id. at 102. The opposing party “may not rest on a denial but must submit
evidentiary facts showing that there is a dispute of fact to be tried.” Kutluca v. PQ N.Y. Inc., 266
F. Supp. 3d 691, 700 (S.D.N.Y. 2017) (quoting Oppenheimer & Co. v. Neidhardt, 56 F.3d 352,
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358 (2d Cir. 1995)). “If there is an issue of fact as to the making of the agreement for arbitration,
then a trial is necessary.” Nicosia, 834 F.3d at 229 (quoting Bensadoun, 316 F.3d at 175).
But if the party establishes that an agreement was formed, the burden then shifts to the
opposing party to show that the agreement is invalid or inapplicable. Ziboukh v. Whaleco, Inc.,
795 F. Supp. 3d 349, 370 (E.D.N.Y. 2025) (quoting Harrison v. Atl. Sounding Co., 602 F.3d 113,
124 (2d Cir. 2010)). If these other threshold arbitrability questions “can be decided as a matter of
law based on the undisputed facts in the record, the [C]ourt ‘may rule on the basis on that legal
issue and “avoid the need for further court proceedings.”’” See Diaz v. Wanrong Trading Corp.,
No. 25-cv-1575, 2025 WL 3119182, at *6, 2025 U.S. Dist. LEXIS 219784, at *15 (E.D.N.Y.
Nov. 7, 2025) (quoting Wachovia Bank Nat’l Ass’n v. VCG Special Opportunities Master Fund,
Ltd., 661 F.3d 164, 172 (2d Cir. 2011)).
V. 	DISCUSSION
A. 	Admissible Evidence
Defendants argue that the Court should disregard the declarations submitted by Plaintiff
and her husband because they are neither sworn to nor made under penalty of perjury. (Dkt. No.
18, at 3 n.1). Defendants are correct that neither declaration is sworn to or “subscribed by [the
person making it] as true under penalty of perjury” pursuant to 28 U.S.C. § 1746. (See Dkt. No.
16-3; Dkt. No. 16-4).
“To be admissible in a summary judgment proceeding, an affidavit must be sworn to,” or,
alternatively, a “declaration made under penalty of perjury.” Jean v. Acme Bus Corp., No. CV
08-4885, 2012 WL 4171226, at *5, 2012 U.S. Dist. LEXIS 134127, at *15–16 (E.D.N.Y. Sep.
19, 2012); 28 U.S.C. § 1746. Without the subscription required by § 1746, the Court declines to
consider the unsworn declarations for purposes of this motion, which is adjudicated under the
standard used to evaluate motions for summary judgment. Cunningham v. CVS Health Corp.,
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No. 23-cv-1328, 2024 WL 2867303, at *4, 2024 U.S. Dist. LEXIS 101160, at *11–12 (S.D.N.Y.
June 4, 2024) (declining to consider the defense witness’s statement in support of the defendants’
motion to compel arbitration because it failed to satisfy 28 U.S.C. §1746’s requirement for an
unsworn declaration to be subscribed as true under penalty of perjury); see also Waddlington v.
City of New York, 971 F. Supp. 2d 286, 292 (E.D.N.Y. 2013) (“Rule 56 of the Federal Rules of
Civil Procedure permits courts to consider assertions in an unsworn declaration or statement at
the summary judgment stage, but only if the declarant affirms, under penalty of perjury, that the
contents of the unsworn statement are true.”) (citing Fed. R. Civ. P. 56(c) and advisory
committee’s note); Fed. R. Civ. P. 56(c)(4) advisory committee’s note to 2010 amendment (A
formal affidavit is no longer required. 28 U.S.C. § 1746 allows a written unsworn declaration,
certificate, verification, or statement subscribed in proper form as true under penalty of perjury to
substitute for an affidavit.”).
Defendants submitted the two-page Release of Liability, Assumption of Risk, Waiver of
Claims, Indemnification & Binding Arbitration Agreement, as an exhibit to defense counsel’s
declaration, without any declaration or affidavit from anyone involved in the execution of this
document. Although the parties do appear to agree in their memoranda of law that Plaintiff
signed this document, (See Dkt. No. 13, at 2; Dkt. No. 16, at 5), on this record, absent admissible
evidence, the Court cannot resolve this motion. The Court will, however, address the parties’
legal arguments regarding arbitration, in order to provide guidance if Defendants seek to renew
their motion.
B. 	Arbitration Agreement
Defendants move to compel arbitration because “Plaintiff, Elanore Hawke, and her
husband signed an agreement to arbitrate all potential claims in relation to a water sports
excursion with Defendants.” (Dkt. No. 13, at 2). Plaintiff argues that she did not agree to
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arbitrate her claims against Defendants, (Dkt. No. 16, at 8–10), that the agreement “was not
fairly and knowingly made,” (id. at 10–13), and it “cannot be enforced because Plaintiff signed it
while under duress,” (id. at 13–15). Plaintiff also asserts, without any legal analysis, that given
her overwhelming pain she lacked capacity and was “incapable of meaningful consent.” (Id. at 9,
11–13). The Court first turns to the law regarding the formation of an arbitration agreement and
then the law regarding enforceability.
1. 	Formation
The first issue is whether the parties formed an arbitration agreement under state contract
law.3 See Zachman, 49 F.4th at 101 (citing Schnabel, 697 F.3d at 118–19). Plaintiff argues that
the agreement was never formed. (Dkt. No. 16, at 8–10). She claims that she lacked notice of the
agreement’s terms because they “w[ere] neither obvious nor conspicuous, and the surrounding
circumstances foreclosed any meaningful opportunity to review or reject [them].” (Id. at 9).
According to Plaintiff, “[w]ithout actual or inquiry notice, there was no meeting of the minds”
and no mutual assent. (Id.).
Under New York law, a binding contract requires a “meeting of the minds” and a
“manifestation of mutual assent.” Melendez, 789 F. Supp. 3d at 327 (quoting Starke v.
SquareTrade, Inc., 913 F.3d 279, 288–89 (2d Cir. 2019). “Generally, courts look to the basic
elements of the offer and acceptance to determine whether there was an objective meeting of the
minds sufficient to give rise to a binding and enforceable contract.” Id. (quoting Starke, 913 F.3d
at 289). The manifestation of mutual assent must be “sufficiently definite to assure that [the
3 The Court applies New York law to the question of whether the parties made an arbitration agreement because all or
a substantial part of the alleged events giving rise to the claims are alleged to have occurred in New York, (Dkt. No.
1, ¶ 7), the parties alleged that they entered into the arbitration agreement in New York, (see generally id.), and both
parties cite to New York law on the issue of contract formation, (see Dkt No. 13; Dkt. No. 16; Dkt. No. 18). See
Kutluca, 266 F. Supp. 3d at 700 n.13 (S.D.N.Y. 2017).
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parties] are truly in agreement with respect to all material terms.” Hu v. Whaleco, Inc., 779 F.
Supp. 3d 265, 283 (E.D.N.Y. 2024) (quoting NRP Holdings LLC v. City of Buffalo, 916 F.3d
177, 199 (2d Cir. 2019). “The manifestation or expression of assent necessary to form a contract
may be by word, act, or conduct which evinces the intention of the parties to contract.”
Register.com, Inc. v. Verio, Inc., 356 F.3d 393, 427 (2d. Cir. 2004) (quoting Maffea v. Ippolito,
668 N.Y.S.2d 653, 654 (App. Div. 1998)).
A party may agree to arbitrate when they have notice of the arbitration agreement’s
terms. Starke, 913 F.3d at 289. But failure to read an arbitration agreement is not a defense to its
formation. Kai Peng v. Uber Techs., Inc., 237 F. Supp. 3d 36, 49–50 (E.D.N.Y. 2017) (collecting
cases). “Where an [individual] does not have actual notice of certain contract terms, [s]he is
nevertheless bound by such terms if [s]he is on inquiry notice of them and assents to them
through conduct that a reasonable person would understand to constitute assent.” Hu v. Barclays
Cap. Inc., No. 24-cv-7580, 2025 WL 1307700, at *2, 2025 U.S. Dist. LEXIS 86579, at *5
(S.D.N.Y. May 6, 2025) (emphasis in original) (quoting Starke, 913 F.3d at 289). To determine
whether a person is on inquiry notice of a contract’s terms, “‘New York courts look to whether
the term was obvious and whether it was called to the [person’s] attention,’ a question that ‘often
turns on whether the contract terms were presented to the [person] in a clear and conspicuous
way.’” Segui v. Solar Mosaic, LLC, 802 F. Supp. 3d 545, 563 (S.D.N.Y. 2025) (quoting Lojewski
v. Grp. Solar USA, LLC, No. 22-cv-10816, 2023 WL 5301423, at *8, 2023 U.S. Dist. LEXIS
147246, at *21 (S.D.N.Y. Aug. 17, 2023)).
Here, the agreement provides that:
The Participant . . . hereby agrees to submit any dispute, claim, or controversy,
relating to and/or arising from (a) this . . . Binding Arbitration Agreement, (b)
Participant’s participation in the Activities, and/or (3) [sic] any other interaction
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between the Participant and the Host, including the determination of the scope or
applicability of this agreement to arbitrate, to binding arbitration.
(Dkt. No. 13-2, at 3). The entire agreement is written in bolded text, and the last sentence of the
agreement begins with capitalized and underlined text, providing a “NOTICE TO
PARTICIPANT.” (Id.) (emphasis in original). The rest of the sentence is not capitalized, but
underlined, stating, “By signing this Agreement, you are giving up your right to commence
litigation against the Host in a court of law, and you are giving up your right to a trial by
jury.” (Id.) (emphasis in original.). Below this statement, in text set off from the rest of the
agreement, is the
capitalized sentence: “I HAVE READ AND UNDERSTAND THIS AGREEMENT AND I AM
AWARE THAT BY SIGNING THIS AGREEMENT I MAY BE WAIVING CERTAIN
LEGAL RIGHTS, INCLUDING THE RIGHT TO SUE.” (Id.) (emphasis in original). Directly
underneath this sentence, is what appears to be Plaintiff’s printed name and her signature. (Dkt.
No. 13-2, at 3).
The agreement’s terms are presented in a clear and conspicuous way. The change in the
type of text (i.e., capitalization and underlining) called attention to the main effect of assenting to
the agreement’s terms: sacrificing one’s right to sue in a court of law. These circumstances
would appear to have put Plaintiff on inquiry notice of these terms, and her signature would
appear to have manifested her agreement with them. To the extent Plaintiff asserts that “the
surrounding circumstances,” (Dkt. No. 16, at 9), prevented the formation of an arbitration
agreement, she has failed to cite to any applicable caselaw.
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2. 	Enforceability
Next, the Court addresses the issue of enforceability.4 Plaintiff argues that the arbitration
agreement “was not fairly and knowingly made and cannot be enforced.” (Id. at 10). However,
the cases Plaintiff cites apply the “fairly and knowingly made” standard only to releases from
liability. See, e.g., Haynes v. Garez, 758 N.Y.S.2d 391, 392–393 (App. Div. 2003) (stating that
“there is a requirement that a release [from liability] covering both known an unknown injuries
be ‘fairly and knowingly made,’” in the context of adjudicating the enforceability of a release
signed after a car accident in exchange for $300); Duch v. Giacquinto, 222 N.Y.S.2d 101, 104
(App. Div. 1961) (affirming a jury verdict setting aside a release from liability for $300
following a car accident because “the jury could properly have found that the [release] was not
fairly and knowingly made.”); Pastrana-Ortiz v. Wemple, 235 N.Y.S.3d 803 (App. Div. 2025)
(finding that the plaintiff alleged sufficient facts to invalidate a release from liability on the
grounds that it was not fairly and knowingly made and that there was a mutual mistake as to the
extent of the plaintiff’s injuries); Ford v. Phillips, 994 N.Y.S.2d 688, 690 (App. Div. 2014) (“[A]
release must be ‘fairly and knowingly made’ and thus, like any other contract may be set aside
on the basis of fraud or mutual mistake.”). “Challenges to the enforceability of an arbitration
agreement encompass “generally applicable contract defenses, such as fraud, duress, or
unconscionability.” AT&T Mobility LLC, 563 U.S. at 339 (emphasis added). None of the caselaw
Plaintiff provides indicates that the “fairly and knowingly made” standard is a generally
applicable contract defense or that is has been applied to invalidate an arbitration agreement.
4 To the extent Defendants argue that the issue of the arbitration agreement’s enforceability is for the arbitrator, the
Defendants have neither pointed to language in the arbitration agreement nor cited caselaw showing that the parties
“clear[ly] and unmistakabl[y]” delegated this issue to the arbitrator. See Howsam, 537 U.S. at 83.
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To the extent that Plaintiff argues that the alleged invalidity of the Release and Waiver of
Claims; Assumption of Risk; Indemnification Agreement invalidates the arbitration agreement,
that would be an issue for the arbitrator. Although a federal court may adjudicate challenges to
the enforceability of the arbitration agreement itself, it is the arbitrator who hears challenges to
the contract as a whole, either on a ground that effects the entirety of the agreement, or on a
ground that one of its terms makes the whole contract unenforceable. Delgado v. Ocwen Loan
Servicing, LLC, No. 13-cv-4427, 2016 WL 4617159, at *9, 2016 U.S. Dist. LEXIS 119069, at
*30 (E.D.N.Y. Sep. 2, 2016); see also Buckeye Check Cashing, Inc., 546 U.S. at 444–446. 5
Plaintiff also argues that “the proposed arbitration agreement cannot be enforced because
Plaintiff signed it while under duress.” (Dkt. No. 16, at 13). The parties have not addressed
whether this argument is for the arbitrator or the Court. Plaintiff’s argument appears to apply to
the circumstances surrounding the entire contract. (See id. at 14 (explaining that the duress
occurred “when [Plaintiff was] presented with the form containing the arbitration agreement)).
The Supreme Court has noted that “where a challenge applies ‘equally’ to the whole contract and
to an arbitration or delegation provision, a court must address that challenge.” Coinbase v. Suski,
602 U.S. 143, 150–51 (2024) (citing Rent-a-Ctr., W., Inc., 561 U.S. at 71). The Court, however,
also noted that “a party seeking to avoid arbitration must directly challenge the arbitration . . .
clause, not just the contract as a whole.” Id. at 150–51 (2024); see also Rent-A-Ctr., W., Inc., 561
U.S. at 71 (“[E]ven where . . . the alleged [basis for invalidity] that induce[s] the contract as a
whole equally induce[s] the agreement arbitrate which [is] part of the contract—we nonetheless
5 To the extent that Plaintiff asks the Court to invalidate only the Release and Waiver of Claims; Assumption of Risk;
Indemnification Agreement, that would be an issue for the arbitrator. The arbitration agreement states that “the
[arbitration] Panel shall confirm whether the Waiver and Release contained in this Agreement are enforceable under
applicable law.” (Dkt. No. 13-2, at 3).
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require the basis of challenge to be directed specifically to the agreement to arbitrate before the
court will intervene.”).
Courts have held that where arbitration agreements are included in larger agreements,
claims of duress must be resolved by an arbitrator. Mahant v. Lehman Bros., No. 99-cv-4421,
2000 WL 1738399, at *2, 2000 U.S. Dist. LEXIS 16966, at *5–6 (S.D.N.Y. Nov. 22, 2000)
(finding that the plaintiff’s duress claim must be resolved by an arbitrator because “all of
plaintiff’s allegations supporting her duress claim relate to the enforcement of the employment
application generally—not the enforcement of the arbitration provision”); Merrill Lynch, Pierce,
Fenner & Smith, Inc. v. Haydu, 637 F.2d 391, 398 n.11 (5th Cir. 1981) (finding that the
plaintiff’s duress claim must be resolved by an arbitrator because “[her] allegations that she
signed the stock option agreements under circumstances of . . . duress are related to her reasons
for signing the contract as a whole, but are not directly related to the signing of the arbitration
clauses per se); c.f. Eisen v. Venulum Ltd., 244 F. Supp.3d 324, 342 (W.D.N.Y. 2017) (declining
to consider the plaintiff’s claim that an investment contract’s arbitration provision was
procedurally unconscionable due to high pressure tactics and a threat that the plaintiff would lose
his investment because the plaintiff “ha[d] not asserted facts that [went] toward the arbitration
clause in particular,” and that “[s]uch a showing is required by the Supreme Court,” citing Rent-
a-Ctr., W., Inc., 561 U.S. at 71).6
6 The Court notes that under New York law, “[a] contract is voidable on the ground of duress when it is established
that the party making the claim was forced to agree to it by means of a wrongful threat precluding the exercise of [her]
free will.” New v. M&T Bank Corp., No. 21-cv-1186, 2025 WL 2783011, at *9, 2025 U.S. Dist. LEXIS 193462, at
*24 (W.D.N.Y. Sep. 30, 2025) (alternation in original) (quoting Doe v. Kogut, 759 F. App’x 77, 81 (2d Cir. 2019)).
The duress “must have originated from the defendant,” Cuffee v. City of New York, No. 15-cv-8916, 2019 WL
11779186, at *6 n.6, 2019 U.S. Dist. LEXIS 47304, at *14 n.6 (S.D.N.Y. Mar. 20, 2019) (quoting Mandavia v.
Columbia Univ., 912 F. Supp. 2d 119, 127 (S.D.N.Y. 2012), aff’d 604 F. App’x 64 (2d Cir. 2015)), and can take one
of three forms: “duress by physical compulsion, duress by threat, or duress by undue influence.” Gaughan v.
Rubenstein, 261 F. Supp. 3d 390, 403 (S.D.N.Y. 2017) (quoting McIntosh v. Consol. Edison Co., No. 82065, 96 CIV
3624, 1999 WL 151102, at *2, 1999 U.S. Dist. LEXIS 3264, at *5 (S.D.N.Y. Mar. 16, 1999)). Proving duress by
undue influence requires the plaintiff to show “(1) the existence and exertion of an influence; (2) the effective operation
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In her memorandum of law, Plaintiff asserts that she lacked capacity and “was incapable
of meaningful consent,” (see, e.g., Dkt. No. 16, at 11–13), but fails to provide any applicable
caselaw or analysis. “New York law presumes ‘a party’s competence to enter into a
contract . . . and the party asserting incapacity bears the burden of proof.’” Roberts v. Puopolo
M.D., P.C., No. 24-cv-8162, 2025 WL 2773007, at *4, 2025 U.S. Dist. LEXIS 189658, at *9–10
(S.D.N.Y. Sep. 25, 2025) (quoting Er-Loom Realty, LLC v. Prelosh Realty, LLC, 909 N.Y.S. 2d
714, 716 (App. Civ. 2010)). The party asserting incapacity must show: “(1) ‘that the mind was so
affected as to render him wholly and absolutely incompetent to comprehend and understand the
nature of the transaction,’ and (2) that the other contracting party ‘knew or should have known of
his condition.’” Id. (quoting Washington v. NYC Med. Prac., P.C., No. 18-cv-9052, 2021 WL
918753, at *6, 2021 U.S. Dist. LEXIS 44992, at *14–15 (S.D.N.Y. Mar. 10, 2021). A contract
entered into by a person lacking mental capacity is voidable. See Restatement (Second) of
Contracts § 15 (1981). The Tenth Circuit has held that the principle established by Prima Paint
Corp. v. Flood & Conklin Mfg., 388 U.S. 395 (1967)—that the issue of a contract’s validity is
considered by the arbitrator unless the challenge is to the arbitration agreement itself—does not
extend to circumstances where a party challenges the enforceability of an entire contract
of such influence as to subvert the mind at the time the transaction occurred; and (3) the execution of the transaction
that, but for undue influence, would not have happened.” Tantaros v. Fox News Network, LLC, No. 25-cv-961, 2025
WL 2242897, at *6, 2025 U.S. Dist. LEXIS 153505, at *16 (S.D.N.Y. Aug. 6, 2025) (quoting Metro. Life. Ins. Co. v.
Bradway, No. 10-cv-0254, 2011 WL 723579, at *5, 2011 U.S. Dist. LEXIS 20538, at *13–14 (S.D.N.Y. Feb. 24,
2011). “The bar for establishing undue influence is high” because “the perpetrator’s behavior must amount to moral
coercion sufficient to restrain independent action and destroy free agency or constrain the victim to do that which was
against [her] free will and desire but which [she] was unable to refuse or too weak to resist.” Metro Life Ins. Co., 2011
WL 723579, at *5, 2011 U.S. Dist. LEXIS 20538, at *14 (citation modified) (citation omitted). This standard requires
conduct “worse than even pressure, not matter how bad[,] because undue influence is tantamount to a species of
cheating.” New, 2025 WL 2783011, at *10, 2025 U.S. Dist. LEXIS 193462, at *27 (quoting Lan v. AOL Time Warner,
Inc., No. 11-cv-2870, 2012 WL 13388978, at *6, 2012 U.S. Dist. LEXIS 187899, at *19 (S.D.N.Y. Aug. 13, 2012),
report and recommendation adopted, No. 11-cv-2870, 2013 WL 1820289, 2013 U.S. Dist. LEXIS 61574 (S.D.N.Y.
Apr. 30, 2013). Even considering the facts in Plaintiff’s declaration, they do not appear to rise to the high bar required
for establishing duress by undue influence.
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containing an arbitration clause due to lack of mental capacity. Spahr v. Secco, 330 F.3d 1266,
1273 (10th Cir. 2003) (holding that the appellant’s mental incapacity defense “goes to both the
entire contract and the specific agreement to arbitrate in the contract. Therefore, [his] claim that
he lacked the mental capacity to enter into an enforceable contract placed the ‘making’ of an
agreement to arbitrate at issue under § 4 of the FAA”.). The Supreme Court has not yet
addressed this issue. See Buckeye Check Cashing, Inc., 546 U.S. at 444 n.1. In any event, given
the absence of admissible evidence and lack of briefing on the applicable law, the Court is
unable to address this issue.
VI. 	CONCLUSION
For all of the foregoing reasons, the Court finds that the issues presented by Defendant’s
motion have not been adequately briefed for the Court to rule. It is therefore hereby
ORDERED that Defendants’ motion to dismiss and compel arbitration (Dkt. No. 12) is
DENIED, without prejudice; and it is further
ORDERED that any renewed motion to dismiss and compel arbitration must be filed
within thirty days from the date of this Order.
IT IS SO ORDERED.
Dated: February 26, 2026
Syracuse, New York
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