RE Corp. v New York Energy Sav. Corp.

RE Corp. v New York Energy Sav. Corp. 2010 NY Slip Op 08459 [78 AD3d 546] November 18, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 19, 2011

RE Corp., Appellant,
v
New York Energy Savings Corp., Respondent.

—[*1] Richard Paul Stone, New York, for appellant.

McKenna Long & Aldridge LLP, New York (Charles E. Dorkey III of counsel), for respondent.

Order, Supreme Court, Bronx County (Diane A. Lebedeff, J.), entered on or about February 17, 2010, which, in an action seeking a declaration that the parties' contract was legally unenforceable, granted defendant's motion to stay proceedings and compel arbitration, unanimously modified, on the law, to the extent of declaring that the contract is legally enforceable, and otherwise affirmed, with costs.

Plaintiff claims that the contract it entered into with defendant to purchase gas and electric supplies at specified prices was an adhesion contract because it had unequal bargaining power with defendant who provided a form contract without entering into any negotiations. Inequality of bargaining power alone does not invalidate a contract as one of adhesion when the purchase can be made elsewhere (see Brower v Gateway 2000, 246 AD2d 246, 252 [1998]). The signature of plaintiff's agent appeared under a provision directing the signatory to review the specific pricing and billing clauses in the contract and plaintiff was afforded three business days to cancel the contract, which was to run for five years.

Notably, plaintiff does not dispute its signature on the contract or that the energy was actually delivered. Because plaintiff received the energy, there is no merit to plaintiff's contention that there was no consideration. Accordingly, the contract is enforceable and pursuant to its arbitration provision, this dispute must be arbitrated. Concur—Mazzarelli, J.P., Saxe, McGuire, Freedman and Abdus-Salaam, JJ.