Larobina v. Altice Media Solutions, LLC

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Larobina v. Altice Media Solutions, LLC

VINCENT P. LAROBINA v. ALTICE
MEDIA SOLUTIONS, LLC
(AC 46539)
Elgo, Moll and Pellegrino, Js.

Syllabus

The plaintiff consumer appealed from the trial court’s judgment for the
defendant Internet and telephone service provider holding, inter alia, that
the arbitration provision in the parties’ agreement may be enforced by the
defendant against the plaintiff. The plaintiff claimed, inter alia, that the court
incorrectly concluded that his request for a declaratory judgment seeking
to invalidate the ‘‘infinite arbitration clause’’ of the arbitration provision
was nonjusticiable. Held:

Although the trial court properly concluded that the plaintiff’s request for
a declaratory judgment seeking to invalidate the infinite arbitration clause
of the arbitration provision was nonjusticiable, the court should have dis-
missed, rather than denied, that claim because justiciability implicates the
court’s subject matter jurisdiction.

The trial court did not improperly conclude that there was neither fraud
nor an absence of mutual assent with regard to the formation of the parties’
agreement, as the plaintiff had notice of the arbitration provision in the
agreement and a duty to read the agreement, which he did not do.

The trial court properly concluded that the arbitration provision was not
procedurally unconscionable as applied to the underlying service dispute
because the plaintiff presented no evidence of overreaching by the defen-
dant, and he retained the ability not to accept or to terminate the agreement
if the terms and conditions, including the arbitration provision, were unac-
ceptable to him.

The trial court properly concluded that the arbitration provision was not
substantively unconscionable, as the plaintiff was notified of the existence
of the terms and conditions, the arbitration provision was not unreasonably
favorable to the defendant, and it contained an opt-out provision and a
severability clause.
Argued September 16—officially released December 24, 2024

Procedural History

Action seeking, inter alia, a declaratory judgment that
the arbitration clause in a contract between the parties
was illegal, invalid and unenforceable, and other relief,
brought to the Superior Court in the judicial district of
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Stamford-Norwalk and tried to the court, Hon. Edward
T. Krumeich II, judge trial referee; judgment for the
defendant, from which the plaintiff appealed to this
court. Improper form of judgment; reversed in part;
judgment directed.
Vincent P. Larobina, self-represented, the appellant
(plaintiff).
Thomas P. Lambert, with whom, on the brief, was
Matthias J. Sportini, for the appellee (defendant).
Opinion

MOLL, J. The self-represented plaintiff, Vincent P.
Larobina, appeals from the judgment of the trial court,
rendered after a bench trial, in favor of the defendant,
Altice Media Solutions, LLC. On appeal, the plaintiff
claims that the court incorrectly concluded that (1) his
request for a declaratory judgment—to the extent it
sought to invalidate the arbitration provision incorpo-
rated into his services agreement with the defendant
on the basis that it contained an improper, so-called
‘‘infinite arbitration clause’’—was nonjusticiable, (2)
the services agreement was lawfully formed, and (3)
insofar as the arbitration provision applied to the par-
ties’ underlying telephone service dispute, the provision
was not unconscionable.1 We disagree and, accordingly,
affirm in part the judgment of the trial court; we reverse
in part the judgment to correct its form.
The following facts, as set forth by the trial court or
as are undisputed in the record, and procedural history
are relevant to our resolution of this appeal. On April
9, 2021, the plaintiff accepted a promotional offer for
Internet and telephone services from the defendant.
The services agreement entered into by the parties con-
tains an arbitration provision that was set forth in the
1
We address the plaintiff’s claims in a different order than they are set
forth in his principal appellate brief.
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general terms and conditions of service incorporated
into the agreement (arbitration provision). The arbitra-
tion provision provides in relevant part: ‘‘Any and all
disputes arising between [the plaintiff] and [the defen-
dant], including its respective parents, subsidiaries,
affiliates, officers, directors, employees, agents, prede-
cessors, and successors, shall be resolved by binding
arbitration on an individual basis in accordance with
this arbitration provision. This agreement to arbitrate
is intended to be broadly interpreted. It includes, but
is not limited to: [c]laims arising out of or relating to
any aspect of the relationship between [the parties],
whether based in contract, tort, statute, fraud, misrepre-
sentation or any other legal theory; [c]laims that arose
before this or any prior [a]greement; and [c]laims that
may arise after the termination of this [a]greement.’’
(Emphasis added.) The emphasized language reflects
a so-called infinite arbitration clause.
‘‘On April 23, 2021, the Internet service was installed,
but the [landline] telephone service failed to function
properly because the plaintiff could not receive incom-
ing telephone calls. This problem persisted until Octo-
ber, 2021.’’ As alleged by the plaintiff, ‘‘[f]rom April,
2021, through August, 2021, despite repeated demand,
[the defendant] failed, neglected or refused to install
operational telephone service to the plaintiff’s resi-
dence. Nevertheless, [the defendant] deducted a
monthly telephone charge from the plaintiff’s credit
card for the months of nonservice’’ (telephone service
dispute).
In July, 2021, the plaintiff commenced a prior action
against the defendant ‘‘seeking to compel [the defen-
dant] to install the contracted telephone service . . . .’’
See Larobina v. Altice Media Solutions, LLC, Superior
Court, judicial district of Stamford-Norwalk, Docket
No. CV-XX-XXXXXXX-S (first action). Shortly thereafter,
on November 9, 2021, the defendant filed a motion to
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stay the proceedings in the first action and to compel
arbitration pursuant to the arbitration provision. On
November 19, 2021, the plaintiff withdrew the first
action while the defendant’s motion to stay and to com-
pel arbitration was pending.
On November 15, 2021, shortly before withdrawing
the first action, the plaintiff commenced against the
defendant the present action, which is the subject of this
appeal.2 In his three count second amended complaint
dated March 17, 2022 (operative complaint), the plaintiff
sought a declaratory ruling that the arbitration provi-
sion was illegal, invalid, and unenforceable because
it was procedurally and substantively unconscionable
(count one). The plaintiff also sought a declaratory rul-
ing that his claim pursuant to the Connecticut Unfair
Trade Practices Act (CUTPA), General Statutes § 42-
110a et seq., as asserted in the first action, was not
arbitrable (count two). Lastly, the plaintiff sought a
declaratory ruling that the substance of the arbitration
provision and the defendant’s manner of delivery
thereof to Connecticut consumers violated CUTPA
(count three). On January 18, 2023, the defendant filed
an answer denying the material allegations of the plain-
tiff’s operative complaint.
On March 1, 2023, the matter was tried to the court,
Hon. Edward T. Krumeich II, judge trial referee.3 The
2
On December 14, 2021, the defendant moved to stay the proceedings in
the present action and to compel arbitration pursuant to the arbitration
provision. On December 22, 2021, the plaintiff filed an objection. On January
24, 2022, the trial court, Hon. Kenneth B. Povodator, judge trial referee,
denied the motion.
3
On March 17, 2022, the plaintiff moved for summary judgment as to
count one. On June 1, 2022, the defendant filed an objection. On December
22, 2022, the court, Hon. Kenneth B. Povodator, judge trial referee, denied
the motion.
In addition, on April 18, 2022, the defendant filed a motion to dismiss
count three and its corresponding demand for relief. On May 18, 2022,
the plaintiff filed an objection. On August 31, 2022, the court, treating the
defendant’s motion as a motion to strike, granted in part the motion and
struck the demand for injunctive relief sought in connection with count three.
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court admitted into evidence several exhibits in full
and heard testimony from the plaintiff and a corporate
designee of the defendant. On May 4, 2023, the court
issued a memorandum of decision denying the plain-
tiff’s requests for declaratory relief in count one, holding
that ‘‘the arbitration [provision] may be enforced by
[the defendant] against [the plaintiff] . . . .’’4 Specifi-
cally, the court concluded that the plaintiff was on
notice of the arbitration provision and assented to its
terms when he agreed to accept the defendant’s services
and that ‘‘[t]here was no evidence of coercion, fraud
or mistake . . . .’’
Second, the court concluded that the arbitration pro-
vision, as applied to the telephone service dispute, was
neither procedurally nor substantively unconscionable.
In support of its conclusion that the arbitration provi-
sion was not procedurally unconscionable, the court
found that, notwithstanding that the arbitration provi-
sion was a ‘‘classic contract of adhesion,’’ the ‘‘plaintiff
retained the ability to not accept or to terminate the
order [for telephone services] if the disclosed terms
were unacceptable’’ and the ‘‘arbitration [provision]
should not have been a surprise.’’ In support of its
conclusion that the arbitration provision was not sub-
stantively unconscionable, the court found that ‘‘[t]he
arbitration provision is mutual, and the terms are stan-
dard, not one-sided, and are amenable to an expedi-
tious, nonjudicial, alternate resolution of the matters
in dispute.’’ In this connection, the court also noted the
fact that there was a thirty day opt-out provision and
a severability clause.
Lastly, the court addressed the plaintiff’s claim chal-
lenging the arbitration provision’s inclusion of ‘‘an ‘infi-
nite arbitration clause’ condemned by various judges
Additionally, in a footnote, the court denied the plaintiff’s requests for
4

declaratory relief in counts two and three, concluding that the plaintiff’s
CUTPA claims were arbitrable. The plaintiff does not challenge those particu-
lar conclusions on appeal.
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and legal scholars because its scope exceed[ed] the
agreement in which it is contained . . . .’’ The court
noted that the plaintiff was seeking ‘‘a declaration that
the ‘infinite arbitration clause’ in the general terms and
conditions could never be enforced because it [was],
by its terms, overbroad and, if enforced, literally . . .
would apply to disputes that have no connection with
his [services] agreement with [the defendant] or with
those persons and entities with whom he dealt in con-
nection with his subscription.’’ The court determined
that this particular request for declaratory relief was
nonjusticiable, stating that ‘‘[t]he court will not render
an advisory opinion on hypothetical situations where
the ‘infinite arbitration clause’ might not be enforced
and to issues on which the plaintiff would lack standing.
There is an actual dispute between the parties that is
justiciable concerning the offer accepted by the plaintiff
and the services provided to the plaintiff pursuant to the
service[s] [agreement] that incorporated the arbitration
[provision]. The only question on which this court may
render a declaratory judgment is whether the present
dispute between the parties may be arbitrated pursuant
to the arbitration [provision] in the general terms and
conditions, which the court answers affirmatively in
denying the plaintiff’s request for a declaration [that]
the arbitration [provision] is unenforceable against
him.’’ This appeal followed. Additional facts and proce-
dural history will be provided as necessary.

I

We construe the plaintiff’s principal claim on appeal
to be that the trial court improperly concluded that his
request for a declaratory judgment seeking to invalidate
the infinite arbitration clause of the arbitration provi-
sion was nonjusticiable. In connection with this claim,
the plaintiff contends that ‘‘an active justiciable dispute’’
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arose as soon as the defendant disagreed with the plain-
tiff’s assertion that the arbitration provision was ‘‘illegal
and against public policy.’’ We disagree.
The following legal principles and standard of review
govern our resolution of this claim. ‘‘The [declaratory
judgment] procedure has the distinct advantage of
affording to the court in granting any relief consequen-
tial to its determination of rights the opportunity of
tailoring that relief to the particular circumstances.
. . . A declaratory judgment action is not, however, a
procedural panacea for use on all occasions, but, rather,
is limited to solving justiciable controversies. . . . A
court will not resolve a claimed controversy on the
merits unless it is satisfied that the controversy is justi-
ciable. . . . Justiciability requires (1) that there be an
actual controversy between or among the parties to the
dispute . . . (2) that the interests of the parties be
adverse . . . (3) that the matter in controversy be
capable of being adjudicated by judicial power . . .
and (4) that the determination of the controversy will
result in practical relief to the complainant. . . . As we
have recognized, justiciability comprises several related
doctrines, namely, standing, ripeness, mootness and the
political question doctrine, that implicate a court’s sub-
ject matter jurisdiction and its competency to adjudi-
cate a particular matter. . . . Finally, because an issue
regarding justiciability raises a question of law, our
appellate review is plenary.’’5 (Citations omitted; inter-
nal quotation marks omitted.) Shenkman-Tyler v. Cen-
tral Mutual Ins. Co., 126 Conn. App. 733, 738–39, 12
A.3d 613 (2011); see also Practice Book § 17-55.
‘‘In light of the rationale of the ripeness requirement,
to prevent the courts, through avoidance of premature
5
‘‘A case that is nonjusticiable must be dismissed for lack of subject
matter jurisdiction.’’ (Internal quotation marks omitted.) Francis v. Board
of Pardons & Paroles, 338 Conn. 347, 358, 258 A.3d 71 (2021).
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adjudication, from entangling themselves in abstract
disagreements . . . we must be satisfied that the case
before the court does not present a hypothetical injury
or a claim contingent upon some event that has not
and indeed may never transpire.’’ (Citation omitted;
internal quotation marks omitted.) Milford Power Co.,
LLC v. Alstom Power, Inc., 263 Conn. 616, 626, 822 A.2d
196 (2003).
Additionally, ‘‘[i]t is a basic principle of our law . . .
that the plaintiffs must have standing in order for a
court to have jurisdiction to render a declaratory judg-
ment. . . . Standing is established by showing that the
party claiming it is authorized by statute to bring suit
or is classically aggrieved. . . . The fundamental test
for determining aggrievement encompasses a well-set-
tled twofold determination: first, the party claiming
aggrievement must successfully demonstrate a specific,
personal and legal interest in [the challenged action],
as distinguished from a general interest, such as is the
concern of all members of the community as a whole.
Second, the party claiming aggrievement must success-
fully establish that this specific personal and legal inter-
est has been specially and injuriously affected by the
[challenged action]. . . . The determination of
aggrievement presents a question of fact for the trial
court and a plaintiff has the burden of proving that fact.
. . . The conclusions reached by the trial court cannot
be disturbed on appeal unless the subordinate facts do
not support them. . . . Where a plaintiff lacks standing
to sue, the court is without subject matter jurisdiction.’’
(Citations omitted; footnote omitted; internal quotation
marks omitted.) Steeneck v. University of Bridgeport,
235 Conn. 572, 578–80, 668 A.2d 688 (1995).
‘‘In deciding whether the plaintiff’s complaint pre-
sents a justiciable claim, we make no determination
regarding [the complaint’s] merits. Rather, we consider
only whether the matter in controversy [is] capable of
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being adjudicated by judicial power according to the
aforestated well established principles.’’ (Internal quo-
tation marks omitted.) Schoenhorn v. Moss, 347 Conn.
501, 508, 298 A.3d 236 (2023).

In the present action, the plaintiff seeks a declaratory
ruling that if, in the future, he suffers harm at the hands
of the defendant that has no nexus with the Internet
and telephone services provided by the defendant, the
arbitration provision is unenforceable as to any
resulting claim. The fundamental flaw with the plain-
tiff’s request for declaratory relief in this regard, how-
ever, is that it hinges entirely on ‘‘a hypothetical injury
or a claim contingent upon some event that has not
and indeed may never transpire.’’ Milford Power Co.,
LLC v. Alstom Power, Inc., supra, 263 Conn. 626. A
ruling on such request would result in a judgment that
is purely advisory in nature. See Village Mortgage Co.
v. Garbus, 201 Conn. App. 845, 851, 244 A.3d 952 (2020)
(‘‘the declaratory judgment procedure may not be uti-
lized merely to secure advice on the law’’ (internal quo-
tation marks omitted)). Simply put, because the plaintiff
has not alleged harm caused by the defendant other
than that underlying the telephone service dispute, his
request for a declaratory judgment seeking to invalidate
the infinite arbitration clause, which by its terms does
not apply to the telephone service dispute, is not justi-
ciable.

The plaintiff claims that a dispute between the parties
as to the validity of the infinite arbitration clause ren-
ders this claim justiciable. The plaintiff’s argument is
untenable, however, because it ignores the justiciability
requirements discussed previously in this opinion, as
well as the related doctrines of standing and ripeness,
which require actual aggrievement of the complaining
party. See Steeneck v. University of Bridgeport, supra,
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235 Conn. 578–80 (discussing standing); see also Mil-
ford Power Co., LLC v. Alstom Power, Inc., supra, 263
Conn. 626 (discussing ripeness).
In sum, the court properly concluded that the plain-
tiff’s request for declaratory relief regarding the
enforceability of the infinite arbitration clause was non-
justiciable. Nevertheless, because justiciability impli-
cates the court’s subject matter jurisdiction, the court
should have dismissed, as opposed to have denied, this
claim (i.e., that portion of count one). See Francis v.
Board of Pardons & Paroles, 338 Conn. 347, 358, 258
A.3d 71 (2021).
II
The plaintiff also claims that the court erred in con-
cluding that the parties’ services agreement incorporat-
ing the arbitration provision was lawfully formed. Spe-
cifically, the plaintiff contends that the services
agreement is not enforceable because of fraud and a
lack of mutual assent. We disagree.
‘‘The existence of a contract is a question of fact to
be determined by the trier on the basis of all of the
evidence. . . . On appeal, our review is limited to a
determination of whether the trier’s findings are clearly
erroneous. . . . This involves a two part function:
where the legal conclusions of the court are challenged,
we must determine whether they are legally and logi-
cally correct and whether they find support in the facts
set out in the memorandum of decision; where the fac-
tual basis of the court’s decision is challenged we must
determine whether the facts set out in the memorandum
of decision are supported by the evidence or whether,
in light of the evidence and the pleadings in the whole
record, those facts are clearly erroneous.’’ (Internal quo-
tation marks omitted.) MD Drilling & Blasting, Inc. v.
MLS Construction, LLC, 93 Conn. App. 451, 454, 889
A.2d 850 (2006).
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‘‘In order to form a binding and enforceable contract,
there must exist an offer and an acceptance based on
a mutual understanding by the parties. . . . The mutual
understanding must manifest itself by a mutual assent
between the parties. . . . In other words, [i]n order for
an enforceable contract to exist, the court must find
that the parties’ minds had truly met. . . . If there has
been a misunderstanding between the parties, or a mis-
apprehension by one or both so that their minds have
never met, no contract has been entered into by them
and the court will not make for them a contract which
they themselves did not make. . . . Meeting of the
minds is defined as mutual agreement and assent of
two parties to contract to substance and terms. It is an
agreement reached by the parties to a contract and
expressed therein, or as the equivalent of mutual assent
or mutual obligation.’’ (Internal quotation marks omit-
ted.) Krasko v. Konkos, 224 Conn. App. 589, 605, 314
A.3d 34 (2024).

‘‘The general rule is that where a person [who is] of
mature years and who can read and write, signs or
accepts a formal written contract affecting his pecuni-
ary interests, it is [that person’s] duty to read it and
notice of its contents will be imputed to [that person]
if [that person] negligently fails to do so. . . . This rule
is qualified by the intervention of fraud, artifice or mis-
take not due to negligence. . . . The rule applies only
if nothing has been said or done to mislead the person
sought to be charged or to put a [person] of reasonable
business prudence off . . . guard in the matter.’’ (Cita-
tion omitted; internal quotation marks omitted.) Abele
Tractor & Equipment Co. v. Sono Stone & Gravel, LLC,
151 Conn. App. 486, 506, 95 A.3d 1184 (2014). ‘‘A fraudu-
lent representation in law is one that is knowingly
untrue, or made without belief in its truth, or recklessly
made and for the purpose of inducing action upon it.’’
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(Internal quotation marks omitted.) Smith v. Frank,
165 Conn. 200, 202, 332 A.2d 76 (1973).
In the present action, the court determined that
‘‘[t]here was no evidence of coercion, fraud or mistake
here. The plaintiff was repeatedly presented with writ-
ten notice of the general terms and conditions that
applied to the services provided to him by [the defen-
dant], which he refused to read. The order pages on
the website related to the offer the plaintiff accepted
indicated that by accepting the services, the plaintiff
was also accepting the terms of service. The plaintiff
assented to these terms when he accepted the offer
online. No written signature or checked box was
required to accept the terms of service online. . . .
Where the parties execute a contract which refers to
another instrument in such a manner to establish that
they intended to make the terms and conditions of that
other instrument a part of their understanding, the two
may be interpreted together as the agreement of the
parties. . . . Here, the general terms and conditions
were linked by hyperlink to the page in which the plain-
tiff accepted the services offered, they were available
for review before acceptance of the service[s] and
installation, and he was bound by the disclosed terms
under which the offer was made and the services pro-
vided.
‘‘No facts have been presented that suggest fraud,
artifice, mistake, or coercion that could be attributed
to [the defendant]. The plaintiff assumed, because there
was no annual contract and he was billed monthly, no
additional terms applied, despite repeated written and
verbal reminders there were additional terms and condi-
tions to the services ordered by the plaintiff. It was
unreasonable for the plaintiff to assume no additional
terms and conditions applied; his failure to use available
means to discover the general terms and conditions
is inexcusable. Knowledge of the general terms and
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conditions are properly imputed to the plaintiff, includ-
ing the arbitration [provision], upon his acceptance of
the written offer.’’ (Citations omitted; footnote omitted;
internal quotation marks omitted.) In a footnote, the
court further stated that ‘‘[t]he plaintiff argues that he
was misled into believing that there was no contract
by the promotional material’s statement that there was
‘no annual contract.’ That statement was true; there
was no annual contract and either party could terminate
the month-to-month agreement for services at any
time.’’
In arguing that the court’s factual findings regarding
fraud and mutual assent were erroneous, the plaintiff
maintains that (1) the defendant represented that (a)
there was ‘‘no annual contract’’ involved and (b) the
contract offered by the defendant was for telephone
service, and (2) the defendant falsely made those repre-
sentations because of the inclusion of the arbitration
provision, which was ‘‘infinite’’ in nature and extended
to matters beyond Internet and telephone services.
These assertions are unavailing, however, in light of
the court’s findings, as supported by the record, that
the plaintiff had notice of the arbitration provision. Spe-
cifically, the court found that the plaintiff was notified,
in person, of the existence of the general terms and
conditions, which contained the arbitration provision,
during an installation appointment and that the plaintiff
agreed to continue with the installation and contracting
for services despite that notice. The testimony of the
plaintiff supported this finding, as he stated that he was
presented with the hyperlink to the general terms and
conditions of his services agreement with the defen-
dant, which contained the arbitration provision, in vari-
ous email communications from the defendant before
the telephone service was installed. The record also
contains documentary evidence of such warnings and
disclaimers regarding the general terms and conditions.
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Moreover, the plaintiff testified that, despite the notices
provided by the defendant, he did not read the warnings
and did not follow the hyperlink that would have led
him to the terms and conditions because he ‘‘believe[d]
this wasn’t germane to [him] . . . .’’ Thus, the record
supports the court’s determination that there was no
fraud or mistake during the formation of the contract,
and, therefore, the plaintiff had a duty to read the con-
tract. See Phoenix Leasing, Inc. v. Kosinski, 47 Conn.
App. 650, 654–55, 707 A.2d 314 (1998) (‘‘There was no
evidence of coercion, fraud or mistake. Thus, the [con-
tracting party] had a duty to read the [contract] and
cannot now plead his self-induced ignorance of its con-
tents.’’).
In sum, we reject the plaintiff’s claims that the court
improperly concluded that there was neither fraud nor
an absence of mutual assent vis-à-vis the formation of
the parties’ services agreement.
III
The plaintiff also claims that the trial court improp-
erly held that the arbitration provision was neither pro-
cedurally nor substantively unconscionable. We con-
clude that the court properly determined that the
arbitration provision, as applied to the plaintiff’s under-
lying telephone service dispute with the defendant, was
not procedurally or substantively unconscionable.6
6
The plaintiff takes the position on appeal that the telephone service
dispute is not the subject of this appeal and that he is contending that the
infinite arbitration clause renders the arbitration provision, as a whole,
unenforceable. The operative complaint requested in relevant part ‘‘[a]
declaratory judgment that [the defendant’s] arbitration clause is procedurally
and/or substantively unconscionable, unlawful, unenforceable and/or other-
wise void in connection with the plaintiff’s underlying dispute with [the
defendant].’’ (Emphasis added.) Thus, the court properly construed the
plaintiff’s claims to encompass a challenge to the arbitrability of the underly-
ing telephone service dispute in the present action. Moreover, we conclude
that the plaintiff’s claim of unconscionability on appeal encompasses the
arbitration provision as applied to the underlying telephone service dispute.
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We begin by setting forth the applicable standard of
review and relevant legal principles. ‘‘It is well estab-
lished that [t]he question of unconscionability is a mat-
ter of law to be decided by the court based on all the
facts and circumstances of the case. . . . Thus, our
review on appeal is unlimited by the clearly erroneous
[or abuse of discretion] standard. . . . This means that
the ultimate determination of whether a transaction is
unconscionable is a question of law, not a question of
fact, and that the trial court’s determination on that
issue is subject to a plenary review on appeal. . . . It
also means, however, that the factual findings of the
trial court that underlie that determination are entitled
to the same deference on appeal that other factual find-
ings command. Thus, those findings must stand unless
they are clearly erroneous. . . .

‘‘The classic definition of an unconscionable contract
is one which no man in his senses, not under delusion,
would make, on the one hand, and which no fair and
honest man would accept, on the other. . . . The doc-
trine of unconscionability, as a defense to contract
enforcement, generally requires a showing that the con-
tract was both procedurally and substantively uncon-
scionable when made—i.e., some showing of an
absence of meaningful choice on the part of one of the
parties together with contract terms which are unrea-
sonably favorable to the other party . . . .’’ (Citations
omitted; internal quotation marks omitted.) R. F. Dad-
dario & Sons, Inc. v. Shelansky, 123 Conn. App. 725,
740–41, 3 A.3d 957 (2010). ‘‘In practice, we have come
to divide this definition into two aspects of unconscio-
nability, one procedural and the other substantive, the
first intended to prevent unfair surprise and the other
intended to prevent oppression.’’ Smith v. Mitsubishi
Motors Credit of America, Inc., 247 Conn. 342, 349, 721
A.2d 1187 (1998).
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A
The plaintiff first contends that the arbitration provi-
sion was procedurally unconscionable because it is a
contract of adhesion, which, in some jurisdictions, con-
stitutes procedural unconscionability. In connection
with his first claim, the plaintiff also argues that the
defendant ‘‘wilfully deceives consumers by soliciting
business by proclaiming in banner print ‘no annual con-
tracts’ ’’ while also imposing the arbitration provision
in the general terms and conditions. Lastly, the plaintiff
contends that the opt-out provision in the arbitration
provision was ‘‘inherently confusing and is intended to
cause confusion.’’ The defendant argues that the court
properly concluded that the arbitration provision was
not procedurally unconscionable, as the plaintiff pre-
sented no evidence of overreaching by the defendant.
We agree with the defendant.
Procedural unconscionability may be found ‘‘where
bargaining or contractual improprieties were commit-
ted . . . .’’ Rockstone Capital, LLC v. Caldwell, 206
Conn. App. 801, 813, 261 A.3d 1171, cert. denied, 339
Conn. 914, 262 A.3d 136 (2021); see also Emeritus
Senior Living v. Lepore, 183 Conn. App. 23, 29, 191
A.3d 212 (2018) (reversing trial court’s finding that
agreement was procedurally unconscionable because
contracting party was provided ‘‘reasonable notice’’ and
evidence did not reveal that contracting party ‘‘had no
meaningful choice whether to select the plaintiff as
the provider’’ of services); Shoreline Communications,
Inc. v. Norwich Taxi, LLC, 70 Conn. App. 60, 70, 797
A.2d 1165 (2002) (‘‘we know of no case . . . in which
a party may invoke unconscionability without a show-
ing of some kind of relevant misconduct by the party
seeking enforcement of a contract’’). Additionally, we
note that principles of unconscionability do not negate
‘‘the duty of a contracting party to read the terms of
an agreement or else be deemed to have notice of the
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Larobina v. Altice Media Solutions, LLC

terms.’’ Smith v. Mitsubishi Motors Credit of America,
Inc., supra, 247 Conn. 351–52; see also Rockstone Capi-
tal, LLC v. Caldwell, supra, 812 (‘‘a contracting party’s
negligent failure to read and understand an agreement
has consistently been rejected as an unconscionability
defense to contract enforcement’’).
In the present case, the plaintiff retained the ability
not to accept or to terminate the agreement for tele-
phone service if the general terms and conditions,
including the arbitration provision, were unacceptable
to him. Moreover, there was no unfair surprise about
the existence of the arbitration provision, as the court
found that the ‘‘plaintiff was on notice that the Internet
[and telephone] services agreement was subject to the
terms and conditions that were available for his review
and that by accepting the services offered he was agree-
ing to the general terms and conditions.’’ See Smith v.
Mitsubishi Motors Credit of America, Inc., supra, 247
Conn. 349. The court explicitly found that the plaintiff
‘‘was repeatedly notified there were conditions that
applied to his service[s] arrangement with [the defen-
dant] and he was provided the hyperlinks necessary to
access the general terms and conditions, including the
arbitration [provision], but he failed to read the notices
or follow the hyperlinks.’’ The promotional materials
the plaintiff received, which induced him to contract
for telephone service with the defendant, all described
the terms of the offer and explicitly warned that ‘‘[o]ther
terms and conditions apply . . . .’’ Similar language
appeared in the plaintiff’s order confirmation for enroll-
ing in autopay.
The plaintiff did not present any evidence of ‘‘bar-
gaining or contractual improprieties’’; Rockstone Capi-
tal, LLC v. Caldwell, supra, 206 Conn. App. 813; or
‘‘misconduct’’; Shoreline Communications, Inc. v. Nor-
wich Taxi, LLC, supra, 70 Conn. App. 70; nor did he
present evidence that he ‘‘had no meaningful choice
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Larobina v. Altice Media Solutions, LLC

whether to select the [defendant] as the provider’’ of
telephone service. Emeritus Senior Living v. Lepore,
supra, 183 Conn. App. 29. Although the plaintiff testified
that he chose not to read the general terms and condi-
tions, which contained the arbitration provision, a ‘‘neg-
ligent failure to read and understand [the] agreement
has consistently been rejected as an unconscionability
defense to contract enforcement.’’ Rockstone Capital,
LLC v. Caldwell, supra, 812.
In sum, we conclude that the court properly deter-
mined that the arbitration provision was not procedur-
ally unconscionable as applied to the underlying tele-
phone service dispute.
B
The plaintiff next contends that the arbitration provi-
sion was substantively unconscionable because it ‘‘com-
pletely favors [the defendant] . . . .’’ In connection
with this claim, the plaintiff asserts that the arbitration
provision (1) transcends the contract, (2) violates pub-
lic policy, (3) contains illusory terms, (4) contains one-
sided provisions, (5) gives the defendant the power to
create the rules of arbitration, (6) includes waivers as
to jury trials, class actions, and private attorney general
actions, (7) covers a ‘‘constellation of nonparty benefici-
aries, unconnected to the contracted telecommunica-
tion services,’’ and (8) is ambiguous. The defendant
argues that the arbitration provision was not substan-
tively unconscionable because (1) the plaintiff was noti-
fied of the existence of the terms and conditions, (2)
the arbitration provision was ‘‘not unfair so as to make
it substantively unconscionable,’’ and (3) the court can
sever portions of the agreement that are deemed to be
unconscionable. We agree with the defendant.
Substantive unconscionability is slightly different
from procedural unconscionability, as it ‘‘focuses on
the content of the contract . . . . That is, whether the
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contract terms . . . are unreasonably favorable to the
other party . . . . In general, the basic test is whether,
in the light of the general . . . background and the
. . . needs of the particular . . . case, the clauses
involved are so one-sided as to be unconscionable under
the circumstances existing at the time of the making
of the contract.’’ (Citations omitted; internal quotation
marks omitted.) Velasco v. Commissioner of Correc-
tion, 214 Conn. App. 831, 842, 282 A.3d 517, cert. denied,
345 Conn. 960, 285 A.3d 52 (2022).
In the present case, the arbitration provision is not
‘‘so one-sided as to be unconscionable under the cir-
cumstances existing at the time of the making of the
contract,’’ nor is the provision ‘‘unreasonably favorable’’
to the defendant; (internal quotation marks omitted)
id.; because, as noted by the court, ‘‘[t]he arbitration
provision is mutual’’ and both sides are bound to arbi-
trate any covered disputes between the parties. More-
over, in concluding that the provision was not substan-
tively unconscionable, the court correctly considered
the opt-out provision, which permitted a new subscriber
an opportunity to opt out of the arbitration agreement
within thirty days from the effective date of the agree-
ment.7 The court also properly considered the severabil-
ity clause, which provides in relevant part: ‘‘If any other
portion of this arbitration provision is determined to
be unenforceable, then the remainder of this arbitration
provision shall be given full force and effect.’’ These
two provisions further bolster our conclusion that the
7
The plaintiff claims that the opt-out provision is confusing and illusory.
We disagree, as the plain language of the provision indicates that a subscriber
has thirty days to opt out of the arbitration provision. The opt-out provision
also gives clear instructions to the subscriber on how to opt out of the
arbitration provision, which could be done via email or mail to the defendant.
Moreover, despite the plaintiff’s claim that the opt-out provision was ‘‘con-
cealed,’’ the plaintiff could have discovered the opt-out provision, which is
written in capital and bold letters, if he had clicked on the hyperlink to the
general terms and conditions.
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agreement was not so one-sided as to be unconsciona-
ble, nor unreasonably favorable to the defendant,
because (1) the plaintiff had the power to opt out of
the agreement within thirty days and (2) in the event
that any portions are determined to be unconscionable,
the court can sever such portions from the remainder
of the agreement.
In sum, we conclude that the court properly deter-
mined that the arbitration provision was not substan-
tively unconscionable as applied to the underlying tele-
phone service dispute.
The form of the judgment with respect to the plain-
tiff’s claim for a declaratory ruling pertaining to the
infinite arbitration clause is improper, the judgment is
reversed only as to that claim and the case is remanded
with direction to render judgment dismissing that claim;
the judgment is affirmed in all other respects.
In this opinion the other judges concurred.