DECISION AND ORDER Petitioner Lara S. Trafelet commenced this proceeding, and filed the instant motion, pursuant to C.P.L.R. §7503(a) to stay the arbitration commenced before the American Arbitration Association (AAA) by respondent Cipolla & Co, LLC. Respondent opposes the application. BACKGROUNDThe following is a recitation of material undisputed facts from the parties’ submissions, unless otherwise stated. Petitioner Ms. Trafelet was the plaintiff in a contested matrimonial action, Trafelet v. Trafelet, Index No. 312168/2015, that was pending before the undersigned when the instant motion was filed. That matrimonial action was recently concluded by settlement at the commencement of trial and the judgment of divorce was signed in December 2018. The Cipolla firm is an accounting and litigation-consulting firm (although it consults as accountants in litigation, it is not a litigation firm, and it does not employ attorneys).On November 23, 2016, petitioner retained the law firm of Buchanan Ingersoll & Rooney, P.C. (Buchanan) to represent her in the matrimonial action (Petition26). According to Buchanan’s written retainer agreement, petitioner agreed to pay “all out-of-pocket costs, fees and other expenses incurred in connection with” the divorce action (Petition, Ex. A at 2). The Buchanan retainer also provided that in the event petitioner approved the hiring of experts, such as accountants, appraisers and investigators, she would “pay such outside providers directly” (id.).Buchanan subsequently retained respondent pursuant to a “Kovel Retainer” for purposes of providing confidential forensic accounting services in the matrimonial action (Petition3, Ex. B at 1). Buchanan and Ms. Trafelet (together with her father and her attorney) received, and Buchanan and Ms. Trafelet eventually signed, two separate engagement letters with Cipolla (the November 2016 agreement, Cipolla Aff., Ex. E and the August 2017 second agreement, Cipolla Aff., Ex. B). In each letter that Ms. Trafelet signed, there was an agreement to arbitrate any disputes. Specifically, in November 16, 2016, Joseph Cipolla, managing member of the respondent, met with Ms. Trafelet, her father Ted Schmidt, who is an experienced business person, and her then-attorney Stuart Slotnick from Buchanan. Cipolla associate Albert Manzo emailed the First Engagement Letter to Mr. Slotnick on November 18, 2016. On November 22, 2016, Mr. Slotnick forwarded that proposed engagement letter to Ms. Trafelet and her father. The following day, Ms. Trafelet met with Mr. Cipolla, accompanied by her attorney, Mr. Slotnick. According to Mr. Cipolla, she inquired about a specific term in the letter (allegedly, interest on unpaid balances), and then, Ms. Trafelet signed the engagement letter, as “Financially Responsible Party” (Cipolla Aff. at 8, Ex. E). That November 2016 Cipolla retainer agreement also referred to petitioner as the “Client” and Buchanan as “Counsel” (id.). It also set forth the terms for payment of respondent’s fees and the procedure for resolving disputes. Significantly, the document stated that the “Client shall be solely responsible for the payment of our fees and related expenses” (id. at 3).In his opposition to the instant motion, Mr. Cipolla detailed his firm’s extensive work on behalf of Ms. Trafelet in the months after that first engagement letter was signed. Mr. Cipolla also cited Ms. Trafelet’s apparently active participation and awareness of at least some of that work: there was a dedicated conference room for this matter, and Ms. Trafelet often worked there with her advisors; she was a party to numerous emails, questions, and requests. The Cipolla firm also participated in numerous court appearances before a prior Presiding Justice in Ms. Trafelet’s matrimonial case. Throughout, the Cipolla firm apparently provided Ms. Trafelet with weekly invoices. (Cipolla Aff. at 8), and according to Mr. Cipolla, Ms. Trafelet even printed out these invoices into a binder (id.). In March 2017, Mr. Cipolla filed an affidavit in the matrimonial action (Cipolla Aff., Ex. F), in support of Ms. Trafelet’s application for attorney and expert fees against her then-husband, which application was eventually granted, and upheld on appeal.It also appears that in August 2017, Ms. Trafelet agreed to execute a confession of judgment for a certain sum of then-outstanding unpaid fees. Nevertheless, Ms. Trafelet eventually told Mr. Cipolla that she had been advised not to sign the affidavit of confession of judgment (Cipolla Aff.), eventually leading to the end of the relationship, the start of fee-collection in arbitration, and the instant motion permanently to stay that arbitration.By August 2017, the Cipolla firm had apparently billed over $2 million for its work, with a large balance due. According to Mr. Cipolla, in mid-August 2017, his firm’s associate Mr. Manzo emailed Ms. Trafelet about the outstanding fees, and attached a new engagement letter for her signature, as well as a revised Kovel Retainer with respondent (the 2017 Agreement) (Petition, Ex. C at 7). Mr. Manzo also attached a “confession of judgment” for Ms. Trafelet’s signature. (Cipolla Aff., Ex. H, filed without cited attachments). On August 22, 2017, Ms. Trafelet’s then-attorney Mr. Slotnick signed the 2017 Agreement. (Cipolla Aff., Ex. E). Two days later, on August 24, 2017, Mr. Manzo emailed Ms. Trafelet, again asking her about the 2017 Agreement and confession of judgment (Cipolla Aff., Ex. C, filed with cited attachments). That day, August 24, 2017, Ms. Trafelet signed the 2017 Agreement (Cipolla Aff., Ex. E), but she did not at that time (or at any subsequent time), sign the confession of judgment.The terms were largely identical to those in the initial Kovel Retainer, with the 2017 Agreement once again identifying petitioner as the “Client” and Buchanan as “Counsel” (Cipolla Aff., Ex. E at 1). However, the 2017 Agreement amended the sections pertaining to fees and payment. Importantly, the relevant portions of the 2017 Agreement discussing fees and payments now read:“Professional Fees1. Client shall be solely responsible for professional fees…Client shall be solely responsible for the payment of our fees and related expenses…[and] in no event shall Counsel be financially responsible for our fees and expenses….2. Cipolla has rendered weekly invoices via email to you and Client since the inception of this engagement without objection, written or otherwise, from you or Client, the financially responsible person pursuant to this agreement. Through August 21, 2017 Cipolla is owed $2,641,590.65 as memorialized by the weekly invoice dated August 22, 2017 as amended/corrected (copy attached); Client specifically warrants and represents that Client remains liable for and irrevocably intends to pay all of Cipolla’s unpaid fees, past and future, and that there exist no claims or potential claims by Client with respect to our unpaid fees or services rendered to date. In recognition of same Client agrees to execute the attached Promissory Note (Confessed Judgment) in the amount of $2,641,590.65 plus all interest and/or service charges accruing pursuant to this agreement.. .”(id. at 3) (emphasis added). The 2017 Agreement included a provision for resolving disputes that reads:“4. Dispute Resolution. If a dispute or claim arises out of or relates to the engagement described herein, Counsel and the parties agree to settle such dispute or claim by arbitration administered by the American Arbitration Association (‘AAA’) under its Arbitration Rules for Professional Accounting and Related Services Disputes (‘Arbitration Rules’) with all AAA fees and costs chargeable to and payable by Client. Cipolla and Counsel agree to this exclusive remedy, and to be bound by the results of arbitration. The parties acknowledge they had the right to consult independent counsel regarding this provision and expressly acknowledge and agree that by this provision each is waiving and relinquishing its respective right to a jury trial in any and all disputes, including with respect to fees, between the parties related to this agreement or the professional services to be rendered hereunder. The arbitration hearing shall be heard in New York City. Judgment may be entered on the arbitrator’s award in any court having jurisdiction.In the event a party fails to proceed with arbitration, unsuccessfully challenges the arbitrator’s award, or fails to comply with the arbitrator’s award, the other party is entitled to costs of suit, including a [sic] reasonable attorney fees, for having to compel arbitration or defend or enforce the award”(id. at 5) (emphasis added).A provision on the signature page of the 2017 Agreement further states, just above the signature blocks for Mr. Slotnick and Ms. Trafelet:“I have read, understand and agree to the scope and terms of Cipolla’s engagement as set forth hereinabove. This agreement shall be governed by and construed in accordance with the laws of the State of New York without giving effect to any choice of law or conflict of law rules or provisions of any other jurisdiction that would cause the application of the laws of any other jurisdiction other than the State of New York. Should a dispute arise with respect to this agreement, it is agreed that such dispute shall be resolved in accordance with the Dispute Resolution provisions contained herein, in accordance with the laws of the State of New York, and any rights that may exist to pursue any other remedies, at law or in equity, or in any other venue, are waived”(id. at 7) (emphasis added) (italics in original, underline emphasis added). Notably, the pre-printed text directly beneath petitioner’s signature reads, “Lara S. Trafelet (Financially Responsible Party).” (Id.)Petitioner alleges that respondent has billed her more than $4.2 million for its services, of which $1.5 million has been paid after the trial court’s award of $3.5 million to petitioner in the matrimonial action for interim counsel and expert fees was affirmed (Trafelet v. Trafelet, 162 A.D.3d 518, 518, 79 N.Y.S.3d 129 [1st Dept. 2018]; Petition
3, 38). In November 2017, Mr. Cipolla submitted a second affidavit in support of Ms. Trafelet’s fee application in her then-pending matrimonial action (Cipolla Aff., Ex. J). On or about December 11, 2017, petitioner discharged Buchanan allegedly for cause (id.,70), and petitioner and her new counsel terminated respondent’s services (id.,71). Respondent submits that it resigned its services to the new attorney, in part because Ms. Trafelet had not signed the confession of judgment (Cipolla Aff.,17). On or about June 26, 2018, respondent brought an arbitration proceeding to recover its allegedly unpaid fees (id.,74; Ex. F at 1). Petition then filed the instant proceeding and motion.CONTENTIONSPetitioner asserts that arbitration should be stayed on several bases. First, petitioner argues that she never agreed to arbitrate respondent’s claim because the agreements bound only respondent and Buchanan to arbitration. The first sentence of the 2017 Agreement refers to an “agreement…between Cipolla & Co, LLC (‘Cipolla,’ ‘us,’ ‘we,’ or ‘our’) and Buchanan Ingersoll & Rooney, PC (‘Counsel’) regarding the terms which Cipolla has been requested to perform” (Petition, Ex. C at 1). The sentence did not include petitioner as a party to the Agreement.Second, Ms. Trafelet argues that even if she is bound to the 2017 Agreement, the dispute resolution provision is unclear and ambiguous, because the 2017 Agreement contains conflicting language. The fee payment provision of the agreement indicates that petitioner would be liable for reasonable costs “[i]f it becomes necessary to initiate collection or legal action to collect our fees” (id. at 5). If the parties had intended to designate arbitration as the sole mechanism by which respondent could recover its fees, then the agreement should not have included a provision discussing the payment of court costs and fees.Third, petitioner contends that the 2017 Agreement is unenforceable because of fraudulent, unconscionable or overreaching conduct by Buchanan or respondent. Petitioner alleges that her former attorneys at Buchanan urged her to retain respondent (Petition23), and that respondent drafted and Buchanan executed the agreement without any negotiation (id.,27). Petitioner further claims that Buchanan owed her a duty to provide her with legal advice concerning the agreement’s terms (id.,34), and that Buchanan ignored this duty when it failed to inform her that confessions of judgment are apparently not permitted under 22 N.YC.R.R. 1400.5. Likewise, Ms. Trafelet alleges that 22 N.Y.C.R.R. 1400.4 prohibits the use of non-refundable retainer agreements in domestic relations matters (id.,69). Although the agreement states that petitioner had the right to consult with independent counsel, Buchanan never told her of this provision (id.,
