The following e-filed papers read herein: NYSCEF Doc Nos. Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 7-15; 30-43; 53-61 Opposing Affidavits (Affirmations) 16-21; 44-52; 63-70 Reply Affidavits (Affirmations) 71-74; 38 DECISION / ORDER Upon the foregoing papers, defendant Revel Transit Inc. (Revel) moves, in motion (mot.) sequence (seq.) one, for an order changing the place of trial of this action from Kings County to New York County based on the forum selection clause contained within the parties’ agreement. Plaintiff moves, in mot. seq. two, for an order permanently staying arbitration and striking Revel’s 18th, 19th, 21st, 23rd and 24th Affirmative Defenses pursuant to CPLR 3211. Revel cross-moves, in mot. seq. three, for an order compelling plaintiff to arbitrate pursuant to the terms of the parties’ agreement. For the reasons which follow, defendant’s motions are granted, and plaintiff’s motion is denied. Background On April 24, 2020, plaintiff Troy Harrison (plaintiff) was riding a Revel electric moped on 7th Avenue and West 122nd Street in Manhattan when, due to allegedly faulty or malfunctioning brakes, plaintiff was thrown off the moped. As a result of the injuries that he sustained from this incident, on October 6, 2020, plaintiff commenced the instant action against Revel seeking to recover for his injuries. On November 24, 2020, along with service of its verified answer, Revel served a Demand to Change Venue, seeking to change the place of trial to New York County pursuant to the forum selection clause contained in its Terms of Use. Plaintiff failed to respond to said demand. On December 9, 2020, Revel timely filed the instant motion to change venue. Thereafter, on March 3, 2021, Revel served a Demand for Arbitration on plaintiff, based on the mandatory arbitration provisions contained within its “Rental Agreement, Waiver of Liability, and Release” (hereinafter Rental Agreement) as well as its Terms of Use. On March 19, 2021, plaintiff filed the instant motion seeking a permanent stay of arbitration. Revel cross-moved, on April 22, 2021, seeking to compel plaintiff to participate in binding arbitration. The court first turns to the parties’ motions regarding the mandatory arbitration clause contained in Revel’s Rental Agreement and Terms of Use. Motions to Stay and Compel Arbitration Plaintiff moves to stay arbitration on several grounds. First, plaintiff argues that mandatory arbitration clauses, like the one herein, are null and void under New York’s General Business Law (GBL) §399-c. He also avers that the Federal Arbitration Act, under 9 USC §2 (hereinafter FAA) does not displace GBL §399-c because the parties’ agreement does not involve or affect interstate commerce. In support of his position, plaintiff references the fact that, per Revel’s website, a prospective Revel moped user must: (1) pick up and return a rented moped in the designated service areas within Manhattan, Queens, Brooklyn, and the Bronx only; (2) not operate a Revel moped on major bridges, tunnels, and highways; and (3) only operate on roads with speed limits of 30 mph or less. Based on the foregoing and the 60-mile maximum range capacity of a Revel moped when fully charged, plaintiff contends that the use of Revel’s mopeds can only be for purposes of intrastate commerce, not interstate commerce. Secondly, plaintiff contends that the subject arbitration clause is unenforceable because he did not agree to it. Further, plaintiff argues that Revel’s arbitration clause was not “reasonably conspicuous” under relevant caselaw because: (1) Revel does not require the user to either view (by clicking the hyperlink) or scroll through its Rental Agreement prior to finalizing his or her membership; (2) the Rental Agreement starts with certain “Important Bullet Points” but does not refer to an arbitration clause or alert the user that he or she is giving up certain rights; and (3) there is only a “single brief reference” to arbitration in the 17-page Rental Agreement which provides: “11.0 Dispute Resolution: Member and Revel agree to submit to the Dispute Resolution provisions of the Terms of Use, which are fully incorporated herein by this reference. Those provisions include a binding arbitration provision.” Plaintiff argues that this language is deficient because there is no explanation of the term “Dispute Resolution” which informs the user that he or she is agreeing to submit to arbitration and thereby relinquishing the right to proceed with a claim in a court of law. According to plaintiff, the insufficiency of the foregoing language, which doesn’t provide a user with notice, is evidenced by the vastly different version reflected in Revel’s recently updated “Moped Rental Agreement Waiver of Liability and Release” (hereinafter 2021 Rental Agreement). Plaintiff contends that the 2021 Rental Agreement differs from the November 2019 version he encountered because the reference to binding arbitration is on the first page, in bold face type, with all capitalized letters. Now, the relevant paragraph begins by providing: “[W]e want to highlight the following at the beginning for ease of reference,” and then it proceeds to describe the mandatory arbitration provision in detail, in bold face, capitalized letters and in larger print. The court notes here that the plaintiff does not dispute that the printed versions of defendant’s agreements provided in these motions by defendant are the versions he confronted when he signed up in March of 2020. Similarly, plaintiff argues that Revel’s Terms of Use failed to give a user adequate notice because it is also hyperlinked, and a user did not need to click the hyperlink or review the Terms of Use to complete the Revel registration process. Further, plaintiff argues that, by its own terms, Revel’s Terms of Use pertains solely to the rider’s use of the Revel “[p]latform” and not to the actual use or operation of its mopeds. That “[p]latform” is defined as “the website App, and, in the case of a Member, the Service.” “Service” is defined as the “reservation and rental management service that allows for the reservation of and invoicing for the rental and use of Mopeds, the incidental cost associated with such rentals. Service also includes the App and underlying technology necessary or used to operate the Service, the support and other services provided to Members by or on behalf of Company to ensure the smooth operation of the rental and maintenance of the Moped and Supplemental Equipment and any exchanges, interaction or Communications that a Member has with our employees, representatives with respect to the Service” (see NYSCEF Doc. Nos. 12, 48 and 57, Terms of Use, “Definitions,” §3) Plaintiff contends that nothing in the foregoing paragraph refers to the actual use of the Revel mopeds. Lastly, plaintiff argues that Revel waived its right to enforce the mandatory arbitration provision by (1) moving to change venue prior to serving plaintiff with its Demand for Arbitration and (2) by unreasonably delaying service of its Demand for Arbitration. According to plaintiff, based on the language contained in the venue selection clause, Revel’s decision to change venue precludes Revel from subsequently enforcing its mandatory arbitration provision because by moving to change venue first, Revel acknowledged that the arbitration clause “do[es] not apply….” (see id. at §17, “Exclusive Venue for Litigation”).1 Plaintiff also contends that he has been prejudiced by Revel’s decision to wait to file its Demand for Arbitration until after it sought a venue change because plaintiff spent time and resources opposing Revel’s motion and engaging in discovery, such as serving a Bill of Particulars, Combined Discovery Demands and a preliminary conference request with the court, prior to the service of the demand. In opposition to plaintiff’s motion and in support of its cross-motion to compel plaintiff to participate in binding arbitration, Revel contends that GBL §399-c is preempted by the FAA because the parties’ agreement affects interstate commerce under both U.S. Supreme Court and New York State court precedents. In this regard, Revel states that it is in the business of facilitating the rental of mopeds across the United States, including in Florida, California, Washington, D.C. and New York through its Internet-based application. Further, defendant Revel claims that its application provides cellular and GPS maps and tracking throughout the United States to allow its members to navigate, and so Revel can provide customer support and remote assistance, while also giving Revel the ability to track its mopeds. Additionally, defendant Revel claims that the mopeds are manufactured in China by NIU, distributed in the United States by Genuine, and leased to Revel through agreements with Farnam Street Financial, a Minnesota company, and NFS Leasing, a Massachusetts company. Because Revel’s service relies on this web of out-of-state and international partners and suppliers, Revel contends that the parties’ agreement and plaintiff’s use of a Revel moped affects “interstate commerce.” Secondly, Revel contends that, regardless of whether plaintiff was in fact aware of the arbitration clause, plaintiff was on inquiry notice of everything contained in Revel’s Rental Agreement and Terms of Use as a result of the application’s registration process since, among other things, the hyperlinks to these agreements when registering were clear and reasonably conspicuous. In support, Revel proffers an affidavit from its Director of Product, Asa Block (Block), as well as corresponding exhibits showing screenshots of the screens that a prospective user would have encountered when plaintiff signed up. Block avers that, on March 13, 2020, prior to the alleged accident, plaintiff created an account with Revel on his mobile device via the Revel Application (App) (NYSCEF Doc Nos. 13, 46, and 55, Asa Block Affidavit, 7). To become a Revel moped user, plaintiff had to download and open the App on his mobile device and complete the “Sign-Up Flow” (id. at 9), which is a “series of screens and queries that a [prospective] Revel user must complete before registering his or her account” (id. at 5). Defendant claims that at the bottom of the first screen encountered by plaintiff were the words, “I accept the Terms of Use and Privacy Policy” with the words “Terms of Use” and “Privacy Policy” appearing in light blue text indicating that each contain hyperlinks, while the rest of the text on this screen appears in black or gray (id. at 10). Clicking on the words redirects the prospective user, through their mobile device’s web browser, to a webpage displaying Revel’s Terms of Use (see id. at 11). Further, at the bottom of the screen, to the right of the words “I accept the Terms of Use and Privacy Policy,” there is a “toggle” button which must be activated, indicating acceptance of Revel’s Terms of Use and Privacy Policy, in order to proceed and gain access to Revel’s mopeds (see id. at
12-14). Similarly, defendant claims plaintiff could not move through the Sign-Up Flow without indicating his acceptance of Revel’s Rental Agreement, which also required plaintiff to activate a toggle button confirming “I have read, understand, and accept Revel’s Rental Agreement” (id. at
