        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1236
CA 14-02021
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, VALENTINO, AND DEJOSEPH, JJ.


FRANCES A. MARIGLIO, PLAINTIFF-APPELLANT,

                    V                                MEMORANDUM AND ORDER

BERTHEL FISHER & COMPANY FINANCIAL SERVICES, INC.,
AND THOMAS J. BERTHEL, DEFENDANTS-RESPONDENTS.


JOANNE A. SCHULTZ, WILLIAMSVILLE, FOR PLAINTIFF-APPELLANT.

BOND SCHOENECK & KING, PLLC, BUFFALO (STEPHEN A. SHARKEY OF COUNSEL),
AND ANTHONY OSTLUND BAER & LOUWEGIE P.A., MINNEAPOLIS, MINNESOTA, FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Erie County (Timothy
J. Walker, A.J.), entered June 26, 2014. The order, inter alia,
granted defendants’ cross motion to compel arbitration.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff appeals from an order that, inter alia,
granted defendants’ cross motion to compel arbitration, contending
that Supreme Court erred in determining that she failed to demonstrate
that she is unable to bear the costs of arbitration. As a preliminary
matter, we note that plaintiff failed to apply for a waiver of the
arbitration fee charged by the Financial Industry Regulatory
Authority, which is a prerequisite for avoidance of arbitration on the
ground that it would be financially prohibitive (see Barone v Haskins,
___ AD3d ___, ___ [Oct. 9, 2015]). In any event, we reject
plaintiff’s contention. The party seeking to “invalidate an
arbitration agreement on the ground that arbitration would be
prohibitively expensive . . . bears the burden of showing the
likelihood of incurring such costs” (Green Tree Fin. Corp.–Alabama v
Randolph, 531 US 79, 92; see Brady v Williams Capital Group, L.P., 14
NY3d 459, 466), and the test for determining whether arbitration is
prohibitively expensive in a particular case requires an examination
of, among other factors, the cost differential between arbitration and
litigation, and whether that differential “is so substantial as to
deter the bringing of claims in the arbitral forum” (Brady, 14 NY3d at
467). Here, plaintiff submitted no evidence concerning the cost of
litigating her claims in court, and she thus failed to meet her burden
in opposition to defendants’ cross motion.

     We have reviewed plaintiff’s remaining contentions and conclude
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                                              CA 14-02021

that they lack merit.




Entered:   November 20, 2015         Frances E. Cafarell
                                     Clerk of the Court
