Opinion
September 24, 1976
Appeal from the Oneida Supreme Court.
Present — Cardamone, J.P., Simons, Mahoney, Dillon and Goldman, JJ.
Judgment unanimously affirmed, without costs. Memorandum: Petitioner appeals from a judgment dismissing her petition to compel arbitration (CPLR 7503, subd [a]) and granting respondent summary judgment. On April 9, 1975 petitioner, a registered professional nurse, was discharged from her position at respondent's hospital. Her termination resulted from her alleged violation of hospital procedures on April 4, 1975 relating to the identification of newborn infants. Petitioner is a member of the New York State Nurses Association (Association) which was the exclusive bargaining representative for registered nurses employed by the hospital. In 1972 a collective bargaining agreement, setting forth a grievance procedure culminating in arbitration, was executed by the Association and the respondent. The agreement provided that it may be terminated on September 14, 1973 or on any subsequent September 14 by the written notice of either party of intent to modify or terminate it, delivered to the other not later than the preceding July 14. The contract also states, "Notice of intent to modify will be equivalent to notice of intent to terminate." On June 20, 1973 the Association sent a notice of intent to modify the agreement to the respondent pursuant to the termination clause. Accordingly, it must be concluded that the contract expired on September 14, 1973. A clear notice of termination ends the agreement (M.K. O. Tr. Lines v Division No. 892, 319 F.2d 488). Despite the fact that the dispute arose subsequent to the expiration of the agreement, petitioner maintains that respondent is bound to arbitrate on the ground that its other terms and conditions have been followed since its termination. We disagree. The duty to arbitrate is founded solely upon an agreement to do so (Steelworkers v Warrior Gulf Co., 363 U.S. 574, 582; Matter of Howard Co. v Daley, 27 N.Y.2d 285, 289; Matter of Reese v Lombard, 47 A.D.2d 327, 332). Absent such an agreement or a provision in the expired contract which would extend its terms until a new contract is executed, respondent may not be directed to arbitrate (cf. New York Times Co. v New York Typo. Union No. 6, 76 Misc.2d 913, revd 43 A.D.2d 231, revd 34 N.Y.2d 555). Although, as petitioner points out, "[t]he duty to arbitrate a dispute arising during the term of the agreement survives the expiration thereof" (Matter of International Assn. of Machinists, AFL-CIO, Lodge 2116, [Buffalo Eclipse Co.], 12 A.D.2d 875, affd 9 N.Y.2d 946) arbitration should not be mandated where the dispute follows the termination of the contract (Proctor Gamble Ind. Union of Port Ivory v Proctor Gamble Mfg. Co., 312 F.2d 181, 186, cert den 374 U.S. 830; Matter of Eisen, 191 Misc. 662, app dsmd 84 N.Y.S.2d 698).