MEMORANDUM & ORDER Plaintiff Jo-Anne Filipkowski (“Plaintiff”), individually, and on behalf of others similarly situated, commenced this proposed class action against Defendant Bethpage Federal Credit Union (“Defendant” or “Bethpage”) alleging that Defendant wrongfully charged Plaintiff, and members of the proposed class, fees related to their checking accounts. (Compl., ECF No. 1.) Before the Court is Defendant’s motion to compel arbitration pursuant to the Federal Arbitration Act (“FAA”), 9 U.S.C. §1 et seq., and an agreement between the parties. (Mot., ECF No. 11; Def. Br., ECF No. 13; Def. Reply, ECF No. 20.) Plaintiff opposes the motion. (Pl. Opp., ECF No. 19.) For the reasons that follow, Defendant’s motion to compel arbitration is GRANTED and this matter is STAYED. BACKGROUND I. Consideration of Declarations and Evidence Submitted in Reply As a preliminary matter, the Court considers the declarations and evidence submitted by Defendant in reply. (See Pl. Ltr., ECF No. 25; Def. Ltr. Opp., ECF No. 26.) “[N]otwithstanding the traditional rule that it is improper for a party to submit evidence in reply that was available when it filed its motion,” the Court exercises its discretion and finds it “entirely appropriate to consider” the reply declarations that directly respond to evidence proffered in Plaintiff’s opposition — namely, the argument that Defendant failed to establish that it mailed an arbitration agreement to Plaintiff with her account statement, discussed infra. Yorke v. TSE Grp. LLC, No. 18-CV-5268, 2019 WL 3219384, at *2 (S.D.N.Y. July 17, 2019) (collecting cases for the proposition that evidence may be considered in reply when it is responsive to claims raised in opposition briefs); Ruggiero v. Warner-Lambert Co., 424 F.3d 249, 252 (2d Cir. 2005) (noting that district courts have discretion to consider or disregard arguments and evidence raised for the first time in a reply brief); Lucina v. Carnival PLC, No. 17-CV-6849, 2019 WL 1317471, at *4 n.1 (E.D.N.Y. Mar. 22, 2019) (declining to strike affidavits and evidence submitted in reply “because they respond to material questions raised in” an affirmation in opposition to a motion to compel arbitration). Moreover, there is little prejudice to Plaintiff where, as here, she could have, but did not, claim “surprise…and sought leave to file a responsive sur-reply.” Ruggiero, 424 F.3d at 252; Bayway Ref. Co. v. Oxygenated Mktg. & Trading A.G., 215 F.3d 219, 227 (2d Cir. 2000) (finding the district court properly accepted evidence submitted in reply where, among other things, the opposing party knew the evidence could refute its argument but “chose not to introduce any evidence” of its own and did not seek leave to file a sur-reply to respond to the new evidence). Accordingly, the facts are drawn from the Complaint, the declarations, and exhibits submitted in connection with the Motion, including Plaintiff’s opposition and Defendant’s reply.1 II. Plaintiff’s Member Account with Bethpage Plaintiff is a member of Defendant, a federally chartered credit union. (Compl.
5-6.) Defendant’s relationship with its members is governed by various versions of a member account agreement (the “Member Agreement”). (Siblano Decl. 2.) As relevant here, Plaintiff and Defendant entered into a “Membership Account Information” contract, a version of the Member Agreement effective September 1, 2014 (the “2014 Agreement”). (Compl. 30; Siblano Decl. 10; 2014 Agmt., Siblano Decl., Ex. C, ECF No. 12-3.) The 2014 Agreement provides, among other things, that “you agree to be bound by the terms and conditions set forth in this [2014] Agreement, as the same may be amended from time to time.” (2014 Agmt. at 1.) Plaintiff and Defendant also entered into a “Consumer Member Account Agreement,” a version of the Member Agreement effective October 20, 2017 (the “2017 Agreement”). (Compl. 29; Siblano Decl. 10; 2017 Agmt., Siblano Decl., Ex. D, ECF No. 12-4.) The 2017 Agreement provides that if Defendant “notified you of a change in any term of your account and you continue to have your account after the effective date of the change, you have agreed to the new term(s).” (2017 Agmt. at 9 (under “AMENDMENTS AND TERMINATION”).) It further provides that “[w]ritten notice we give you is effective when it is deposited in the United States Mail with proper postage and addressed to your mailing address we have on file.” (Id. (under “NOTICES”).) III. The October 2019 Arbitration Agreement In October 2019, Defendant amended its Member Agreement to add an arbitration clause (the “Arbitration Agreement”). (Siblano Decl. 4; Arbitration Agmt., Siblano Decl., Ex. A, ECF No. 12-1; Siblano Dep., Roddy Decl., Ex. F, ECF No. 19-7, at 65:7-11.) Defendant represents that by October 7, 2019, it mailed members a copy of the Arbitration Agreement in the same envelope as the September 2019 account statements, among other documents. (Siblano Decl. 5; Smith Decl.
