DECISION & ORDER & JUDGMENT In accordance with CPLR 2219(a), the decision herein is made upon consideration of all papers filed by the parties in NYSCEF in connection with: (1) petitioners CELINDA ACEVEDO’s (“C. Acevedo”) and ANGELICA ACEVEDO’s (“A. Acevedo”; and, together with C. Acevedo, “Petitioners”) motion (Seq. No. 1) seeking an order certifying proposed classes, finding that respondent CITIBANK, N.A. (“Citibank”) violated the Exempt Income Protection Act, and awarding Petitioners and the certified class members damages and injunctive relief; and (2) Citibank’s motion (Seq. No. 2) seeking an order, pursuant to CPLR §7503, compelling arbitration of the dispute between Petitioners and Citibank. Oral argument on the motions was held before the Court virtually via Microsoft Teams on October 24, 2023. I. INTRODUCTION Citibank’s motion raises a matter of apparent first impression: whether a judgment-debtor’s claims against a bank, pursuant to CPLR §§5239 and 5240, for violations of the Exempt Income Protection Act (the “EIPA”), 2008 N.Y. Sess. Laws ch. 575, may be arbitrated pursuant to written agreement. Through the EIPA, the New York Legislature sought to curtail improper pre-execution restraint of exempt judgment-debtor funds held by banks. It did so by creating a notice-and-claim procedure, as well as by establishing certain minimum amounts of funds held in a judgment-debtor’s bank account that are automatically exempt from restraint by a judgment-creditor’s restraining notice. Petitioners maintained banking accounts with Citibank. Funds held in those accounts were allegedly restrained by Citibank, after it received restraining notices from judgment-creditors, in violation of the EIPA. Specifically, Petitioners allege that Citibank improperly restrained funds statutorily exempt from restraint, aggregated funds held across Petitioners’ multiple accounts in applying the statutory threshold for automatic exemption from restraint, improperly charged Petitioners fees associated with implementing the restraints, and improperly prevented Petitioners from normal banking access to exempt funds by only permitting withdrawal in person at branch locations. Citibank, however, claims that whether its actions violated the EIPA is a matter to be resolved in arbitration. Citibank points to written arbitration agreements to which Petitioners allegedly agreed when they opened their accounts and argues that this dispute falls within the scope of those agreements. Petitioners do not dispute that they are subject to arbitration agreements between them and Citibank. Nor do they dispute that their claims fall within the scope of those agreements. Instead, Petitioners argue principally that arbitration of EIPA claims like theirs is barred by the New York Court of Appeals’ decision in Cruz v. TD Bank, N.A., 22 N.Y.3d 61 (2013), and the statutory judgment-enforcement regime set forth in CPLR Article 52. Petitioners also contend that the arbitration agreements are unconscionable. Cruz, however, does not support Petitioners’ position here. Contrary to Petitioners’ contentions, that decision did not intend to preclude arbitration by deciding that an Article 52 special proceeding is the “exclusive” means of relief for a judgment-debtor seeking redress against a bank for violations of the EIPA. To so interpret Cruz would be to ignore the context in which that decision was rendered: in response to certified questions asking whether a private right of action for judgment-debtors could be implied in the EIPA and whether a judgment-debtor could seek relief against a bank for EIPA violations via an Article 52 special proceeding and, if so, whether the judgment-debtor could also seek relief in a plenary action. Thus, Cruz concerned only the alternatives of an Article 52 special proceeding and a plenary action, not whether arbitration of a judgment-debtor’s EIPA claims against a bank was unavailable. Petitioners’ other arguments concerning Cruz are also meritless. Simply because a judgment-creditor could not be joined to an arbitration between a judgment-debtor and a bank because the creditor is not a party to the arbitration agreement, does not mean that the judgment-debtor’s EIPA claims become entirely nonarbitrable. Rather, it means only that the debtor’s claims against the creditor concerning any funds transferred in violation of the EIPA must be separately litigated in a special proceeding. Likewise, arbitration offers benefits similar to a special proceeding in terms of speed and complexity, and a subsequent special proceeding pursuant to CPLR Article 75 to confirm any arbitration award is not the kind of back-end litigation that the Court of Appeals found that the Legislature had sought to avoid by declining to create a private right of action in the EIPA. Petitioners also advance a number of arguments as to why their claims are nonarbitrable based on the text and “practical application” of Article 52, but each of those arguments is also meritless. Petitioners’ reliance on the Legislature’s use of the term “court” throughout Article 52 is misplaced. The U.S. Supreme Court has, in fact, rejected the contention that the use of such language in a statute alone evidences the legislature’s intent to preclude arbitration of a claim pursuant to that statute. Here, there is no indication that the Legislature sought to create a nonwaivable right to adjudication of EIPA disputes in a court by use of the term “court” in CPLR §§5222-a, 5239, and 5240. Further, the potential unavailability in arbitration of certain remedies provided by CPLR §§5239 and 5240 — remedies that Petitioners do not even seek in this proceeding — does not militate against the arbitrability specifically of claims, like Petitioners’, in which a judgment-debtors seeks damages for EIPA violations and limited related injunctive relief. The applicable arbitration agreements, as well as the rules of the arbitral forums selected in those agreements, grant an arbitrator sufficient power to award Petitioners their requested relief, to the extent such relief is authorized under Cruz. Moreover, the venue provision in CPLR §5239 becomes inapplicable when a party waives initial adjudication of an EIPA claim in a court in favor of adjudication in arbitration, as Petitioners have done here. And the fact that CPLR §5239 allows even third parties, who may not be subject to an arbitration agreement, to commence a special proceeding to determine their rights in property or debt again means only that any such disputes not subject to an arbitration agreement must be maintained in court, not that the statue entirely bars arbitration of any and all EIPA claims. Finally, as to the unconscionability of the applicable arbitration agreements, that claim must be resolved by an arbitrator. This is because the arbitration agreements contain a delegation provision that Petitioners fail to specifically challenge. Wu v. Uber Techs., Inc., 219 A.D.3d 1208, 1209 (1st Dep’t 2023). For these reasons, the Court finds that Petitioners’ claims under the EIPA are arbitrable, that Petitioners agreed to arbitrate their claims, and that Petitioners’ arguments concerning the unconscionability of the arbitration agreements must be resolved by the arbitrator, not this Court. Therefore, Citibank’s motion to compel arbitration is GRANTED, Petitioners’ motion to certify classes and find that Citibank violated the EIPA is DENIED as moot, and this proceeding is DISPOSED. II. BACKGROUND A. Petitioners’ Banking Relationship with Citibank i. C. Acevedo On or about March 23, 1992, C. Acevedo opened a consumer deposit savings account with Citibank. (Affidavit of Joan Haslam, sworn to on June 10, 2021 (NYSCEF Doc. 16) (“Haslam Aff.”), 6) It was then “the policy and practice of Citibank that each new account holder must sign a signature card at the time they open an account.” (Id. 7) At that time, Citibank would also provide an account holder with a copy of the Citibank Deposit Agreement — entitled a “Customer Manual” — in effect when the account holder signed the signature card. (See id.) Although Citibank is unable to locate C. Acevedo’s signature card signed in connection with the opening of her savings account, C. Acevedo does not deny having executed it or having received the Customer Manual in effect at the time. (Id. 6; see generally Petitioner’s Memorandum of Law in Opposition to Respondent’s Motion to Compel Arbitration, dated August 27, 2021 (“Pets.’ Mem.”) (NYSCEF Doc. 33)) The Customer Manual, effective February 1992, does not contain an arbitration provision. A new Customer Manual — now called a “Client Manual” — took effect on February 15, 2009 (the “2009 Client Manual”).1 (Haslam Aff. Ex. B (NYSCEF Doc. 18)) The 2009 Client Manual is 28 total pages, including cover page and table of contents, with each individual page containing two numbered pages arranged in side-by-side vertical columns of text. An arbitration provision begins on the 39th numbered page of the document. The arbitration provision provides, in relevant part: …EITHER YOU OR WE CAN REQUIRE THAT ANY DISPUTES BE RESOLVED BY BINDING ARBITRATION. ARBITRATION REPLACES THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR SIMILAR PROCEEDING…. Agreement to Arbitrate Disputes. Either you or we may elect, without the other’s consent, to require that any dispute between us, or concerning your Citibank deposit, Ready Credit®, Checking Plus® or Checking Plus® (variable rate) accounts, except those disputes specifically excluded below, be resolved by binding arbitration. Disputes Covered by Arbitration. Any claim or dispute relating to or arising out of your deposit Ready Credit®, Checking Plus® or Checking Plus® (variable rate) account, this Agreement, or our relationship will be subject to arbitration. All disputes are subject to arbitration, no matter what legal theory they are based on or what remedy (damages, or injunctive or declaratory relief) they seek. Disputes include any unresolved claims concerning any services relating to such account…. Disputes include claims based on any theory of law, contract, statute, regulation, tort (including fraud or any intentional tort), or any other legal or equitable ground…. Disputes include claims made as part of a class action or other representative action, it being expressly understood and agreed to that the arbitration of such claims must proceed on an individual (non-class, non-representative) basis. Disputes also include claims relating to the enforceability or interpretation of any of these arbitration provisions. Any questions about whether disputes are subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced. …. Commencing an Arbitration. The party filling an arbitration must choose one of the following neutral arbitration forums and follow its rules and procedures for initiating and pursuing an arbitration: American Arbitration Association or National Arbitration Forum…. Administration of Arbitration. The arbitration shall be decided by a single, neutral arbitrator.…The arbitrator shall follow procedures and rules of the arbitration forum in effect on the date the arbitration is filed unless those rules and procedures are inconsistent with this arbitration provision, in which case this arbitration provision will prevail.…The arbitrator shall decide the dispute in accordance with applicable substantive law consistent with the Federal Arbitration Act and applicable statutes of limitations…and will be empowered to award any damages or other relief provided for under applicable law…. No Class Action or Joinder of Parties. You and we agree that no class action, private attorney general or other representative claims may be pursued in arbitration, nor may such action be pursued in court if either you or we elect arbitration. Unless mutually agreed to by you and us, claims of two or more persons may not be joined, consolidated, or otherwise brought together in the same arbitration…. …. Governing Law. You and we agree that our relationship includes transactions involving interstate commerce and that these arbitration provisions are governed by, and enforceable under, the Federal Arbitration Act. To the extent that state law is applicable, the laws of the state governing your account relationship apply. (Id. at 39-41) On April 13, 2015, C. Acevedo closed her Citibank savings account and opened a Citibank Basic Banking account. (Haslam Aff. 11) At that time, she signed a new signature card, which provides: By signing below, I: (1) agree to be bound by all Citibank, N.A. terms and conditions applicable to my account(s), including the Client Manual Consumer Accounts…; (2) understand and acknowledge that such note(s)/agreement(s) provide that any dispute between us will be resolved by binding arbitration; and (3)…such arbitration provisions apply to all my other Citibank deposit, Custom Credit Line, Ready Credit, Secured Ready Credit, Checking Plus (variable rate) or Checking Plus accounts. (Id. Ex. C (NYSCEF Doc. 19)) When she signed her signature card, C. Acevedo would also have received the Client Manual effective January 20, 2015 (the “2015 Client Manual”). (Id. 11) C. Acevedo does not deny having received the manual at that time. (See generally Pets.’ Mem.) The 2015 Client Manual is 56 total pages, including cover page and table of contents. (Haslam Aff. Ex. D (NYSCEF Doc. 20)) Unlike the 2009 Client Manual, the 2015 Client Manual has only one numbered page per actual page of the document. Like the 2009 Client Manual, however, the 2015 Client Manual also contains an arbitration provision, beginning on page 52. With few exceptions, only one of which is relevant here, the arbitration provision contained in the 2015 Client Manual is structurally and substantively identical to the arbitration provision contained in the 2009 Client Manual. (Compare id. at 52-54, with id. Ex. B at 39-41) The one relevant exception is that the National Arbitration Forum (“NAF”)2 has been replaced by JAMS as an agreed-upon arbitration provider. (Compare id. Ex. D. at 53, with id. Ex. B at 40) In addition to the arbitration provision, and unlike the 2009 Client Manual, the 2015 Client Manual includes a reference to arbitration on its cover page, stating there that “This manual also contains an agreement to arbitrate all disputes between us by private arbitration.” (Id. Ex. D at 1) ii. A. Acevedo On January 31, 2000, A. Acevedo opened a consumer checking account with Citibank. (Haslam Aff. 13; id. Ex. E (NYSCEF Doc. 21)) Seven years later, on January 24, 2007, A. Acevedo opened an IRA account with Citibank. (Id. 14) In connection with opening the IRA account, A. Acevedo executed an application (the “IRA Application”) and received a copy of the Citibank Traditional IRA Plan Documents (the “IRA Plan Documents”). Immediately above A. Acevedo’s signature on the IRA Application, the document provides: “By signing this form you acknowledge that: You have read the Citibank IRA or Roth IRA Trust Agreement and Disclosure Statement.…You accept the term[s] of the applicable Citibank IRA or Roth IRA Trust Agreement….” (Id. 15; id. Ex. F (NYSCEF Doc. 22) at p. 2) And, immediately above and to the right of A. Acevedo’s signature, set off from the surrounding text in a text box and bold-face font, the IRA Application provides: Arbitration for traditional IRA or Roth IRA Brokerage Account: You are aware that the Citibank IRA or Roth IRA Brokerage Account Customer Agreement contains a Pre-Disputed Arbitration Clause on page 4, Section 8 of the traditional IRA and Roth IRA Plan Documents. You acknowledge receipt of the Pre-Dispute Arbitration Clause and that your traditional IRA or Roth IRA Brokerage Account is covered by these terms. (Id. 15; id. Ex. F at p. 2) The IRA Plan Documents contain multiple independent documents that are a combined 40 pages in length. (See id. Ex. G (NYSCEF Doc. 23)) Part 4 of the first document, beginning on its 5th page, is an arbitration provision. This provision is virtually identical to the arbitration provisions contained in the 2009 and 2015 Client Manuals, with the only relevant differences being that this provision refers to an IRA account rather than a Citibank deposit, Ready Credit®, Checking Plus®, or Checking Plus® (variable rate) account and substitutes JAMS for NAF as an agreed-upon arbitration provider. (Compare id. at pp. 6-8, with id. Ex. B at 39-41, and id. Ex. D at 52-54) A new Client Manual took effect on June 1, 2017 (the “2017 Client Manual”). (Id. Ex. H (NYSCEF Doc. 24)) The 2017 Client Manual is 29 total pages, including cover page and table of contents, with each individual page containing two numbered pages arranged in side-by-side vertical columns of text. Like the 2015 Client Manual, the 2017 Client Manual contains the same reference to arbitration on its cover page. (Id. at 1) And like the 2015 Client Manual, the 2017 Client Manual contains an arbitration provision beginning on its 52nd numbered page. Once again, this arbitration provision is virtually identical to the arbitration provisions contained in the 2009 and 2015 Client Manuals, with the relevant exception that NAF is once again replaced by JAMS. (Compare id. at 52-55, with id. Ex. B at 39-41, and id. Ex. D at 52-54) One other notable exception is the addition of a clause permitting an account holder to reject the resolution of disputes by arbitration by sending a written opt-out notice to Citibank within 30 days of account opening. (Id. Ex. H at 55) There is no evidence in the record, however, that A. Acevedo ever sent such a notice to Citibank. B. The Exempt Income Protection Act The EIPA was signed into law in 2008. In Cruz, 22 N.Y.3d 61, the Court of Appeals provided a comprehensive overview of the EIPA’s purpose and key terms. As to its purpose, the Court of Appeals wrote: Under both federal and state law, certain types of funds are exempt from restraint or execution, including Social Security benefits, public assistance, unemployment insurance, pension payments and the like. Although the clear legislative intent is that funds of this nature are not to be subject to debt collection (and therefore excluded from any pre-execution restraint), prior to 2008 banks served with restraining notices often inadvertently froze accounts containing income from these sources, leaving judgment debtors without access to much-needed exempt monies. The EIPA was intended to ameliorate this problem, amending certain existing statutes in CPLR article 52 and adding new CPLR 5222-a. Cruz, 22 N.Y.3d at 66. CPLR Article 52 “sets forth procedures for the enforcement of money judgments in New York, which may include the imposition of a restraining notice against a judgment debtor’s bank account to secure funds for later transfer to the judgment creditor through a sheriff’s execution or turnover proceeding.” Id. The EIPA’s amendments to Article 52 “restricted the scope of the restraint that can be implemented against the bank account of a natural person and created a new procedure aimed at ensuring that this class of judgment debtors is able to retain access to exempt funds.” Id. As to the scope of a restraint that may be imposed against a judgment-debtor’s bank account, the EIPA precludes a bank from restraining baseline minimum balances in a “natural person’s” account absent a court order. Specifically, $2,500 is free from restraint “if direct deposit or electronic payments reasonably identifiable as statutorily exempt payments…were made to the judgment debtor’s account during the forty-five [45] day period preceding” the restraint. Otherwise, the statute excludes from restraint an amount that corresponds to 90 percent of 60-days wages under the federal or state minimum wage laws, whichever is greater, to be periodically adjusted — $1,740 as of July 2009. Id. (quoting CPLR §5222(h)) (citing CPLR §5222(i)). The notice-and-claim procedure that the EIPA implemented applies to both judgment-creditors and banks. “A judgment creditor restraining a bank account (in anticipation of a sheriff’s execution by levy or court-ordered transfer of assets) must serve the bank with specific forms: two copies of the restraining notice, an exemption notice and two exemption claim forms.” Id. at 67 (citing CPLR §5222-a(b)(1)). “The restraint is void if the judgment creditor fails to provide these documents to the bank; in that event, the bank ‘shall not restrain the account,’ nor can the bank charge fees associated with a restraint.” Id. (quoting CPLR §5222-a(b)(1)) (citing CPLR §5222(j)). “CPLR 5222-a also imposes a new obligation on financial institutions because it compels banks to mail to judgment debtors (the account holders) copies of the exemption claim forms received from judgment creditors.” Id. (citing CPLR §5222-a(b)). The notice advises the judgment debtor that the bank account is being restrained, describes the categories of funds that are exempt from restraint, and provides information concerning how to seek vacatur of the money judgment to avoid a subsequent transfer of the funds to the judgment creditor. The exemption claim form lists specific income sources that are not subject to restraint or execution (such as Social Security benefits, unemployment insurance, child support, veteran’s benefits, etc.) and directs the debtor to check the box next to any applicable exempt funds that have been deposited in the account. The debtor is then advised to return one copy of the claim form to the bank and the other to the creditor (or its representative) within 20 days. If 25 days have elapsed and the bank has not received an exemption claim form from the judgment debtor, all funds in the account in excess of the applicable statutory minimum remain subject to the restraining notice. However, a failure to return the claim form may not be interpreted as a waiver of any exemption the judgment debtor may possess. Upon receipt of an exemption claim form from the account holder, the bank must notify the judgment creditor “forthwith” of the exemption claim and the creditor then has eight days to object. If no objection is lodged, the restraint is lifted with respect to the disputed funds and the monies are released to the judgment debtor. To object to an exemption claim, the creditor must timely commence a special proceeding under CPLR 5240, serving papers on both the debtor and the bank before the expiration of the eight-day objection period. Within seven days of commencement of the proceeding, a hearing is to be held before a court, resulting in issuance of a judicial decision no later than five days after the hearing. In the meantime, the bank is required to hold the disputed funds for 21 days unless a court order directs otherwise; if 21 days pass and no judicial resolution of the exemption issue is forthcoming, the bank must release the disputed funds to the judgment debtor. Another subdivision [of CPLR §5222-a] imposes special liability upon judgment creditors that object to exemption claims in bad faith. Id. at 67-68 (citing CPLR §5222-a(b)(4)(a), (b), -a(c)(2), (3), (5), -a(d), -a(e), -a(g), -a(h)). “The inadvertent failure by a depository institution [i.e., a bank] to provide the notice required,” however, “shall not give rise to liability on the part of the depository institution.” Id. at 67 (quoting CPLR §5222-a(b)(3)). Finally, as the Court of Appeals recognized in Cruz, “[t]he EIPA did not alter the preexisting provisions in CPLR article 52 permitting the commencement of special proceedings whereby creditors, debtors and ‘any interested person’ can adjudicate disputes over the ownership of income or property, nor did it restrict the power of the court to ‘make an order denying, limiting, conditioning, regulating, extending or modifying the use of any enforcement procedure.” Id. at 68 (quoting CPLR §§5221, 5239, 5240). C. Citibank’s Alleged Misconduct In their Verified Petition, Petitioners allege that their banking accounts with Citibank were restrained in violation of the EIPA. Specifically, with respect to C. Acevedo, Citibank allegedly restrained her savings account on or about June 2009 in response to the service of a restraint notice or levy by third-party creditors. (Attorney’s Statement of Yoav M. Griver in Support of Motion to Compel Arbitration, dated July 23, 2021 (NYSCEF Doc. 25) (“Griver Affirm.”), Ex. J 13) Citibank also charged C. Acevedo $100.00 in administrative fees for placing the restraint on her account. (Id. 14) At the time, the account contained approximately $2,000.00 from C. Acevedo’s wages. (Id. 13) Citibank allegedly prevented C. Acevedo from accessing any of those funds, either in person or otherwise, even though at least $1,740.00 was exempt from restraint under the EIPA. (Id. 14) With respect to A. Acevedo, on or about October 11, 2017, Citibank allegedly froze both her checking and IRA accounts in response to the service of a “garnishment order” by third-party creditors. (Id. 15) At the time, A. Acevedo’s checking account contained approximately $788.00, and her IRA account contained approximately $4,579.01. (Id.) Citibank allegedly informed A. Acevedo that $2,724.08 of the funds contained in her accounts were segregated to be applied to the garnishment order. (Id. 16) Citibank also allegedly informed A. Acevedo that only $2,160.00 was available to her as an automatic exemption, even though at least $2,640 was exempt from restraint under the EIPA, and that A. Acevedo could only access her exempt funds by visiting a Citibank branch in person during normal business hours, and not through ATM, debit card, or check. (Id.) Based on these allegations, Petitioners assert, on behalf of themselves as well as two proposed classes, two causes of action against Citibank. (See id.
42-61) The first cause of action is pursuant to CPLR §5239 (id.
