In Brady v. Williams Cap. Group, L.P. (64 AD3d 127, 878 NYS2d 693 1st Dept 2009), the First Department reversed a trial court's dismissal of a petition pursuant to CPLR article 78 to compel the employer to pay the arbitration fees and granted the petition to the extent of directing the employer to pay the arbitration fees, subject to their later reallocation by the arbitrator. In that case, the AAA, contrary to the employment agreement between the parties which required that they split the fees of arbitration, sent a bill to the employer for $42,300 representing the entire advance payment for the arbitrator's compensation in accordance with the AAA's rules, which require the employer to pay the costs of the arbitration except for the filing fee. The employer refused to pay the fee and demanded that the employee pay her share representing half of the fee, which the employee refused to do. After receiving no fee for five months, the AAA cancelled the arbitration, and the employee brought an article 78 proceeding to compel the employer to pay the fee or to compel the AAA to enter a default judgment against the employer for failing to pay the fee arguing that to require that she pay $21,150 when she had been unemployed for 18 months was prohibitively expensive. The trial court dismissed the proceeding because: (1) the parties' agreement and not the AAA rules governed the allocation of payment of fees; (2) the employee's "rights under the antidiscrimination statutes were not substantially impaired by the requirement that she pay half of the arbitrator's compensation" (Brady, 64 AD3d at 131). The First Department framed the issues on appeal as follows: (1) "whether the AAA's 'employer pays' rule should supersede the 'fee splitting' provision of the parties' arbitration agreement with regard to the arbitrator's compensation"; (2) "whether the fee-splitting provision should be invalidated as violative of public policy in this instance" (id.at 129). The Court answered the first question in the negative and the second question in the affirmative holding: "the risk of prohibitive arbitration cost was more than speculative. Indeed, the record is abundantly clear that the arbitration clause requiring the employee to share half the cost of the arbitrator's compensation would require her to bear a significant arbitration cost--$21,150. While this amount alone is substantial, it did not include other arbitration fees and costs that would have to be borne out equally by the parties. Moreover, the employee has provided sufficient information about her precarious financial situation ... to demonstrate that she was not in a position to afford the cost associated with the arbitration, and was therefore effectively precluded from vindicating her rights in the AAA forum" (id. at 135).