Opinion
2019–05753 Index No. 603223/18
11-18-2020
COUNTY OF NASSAU, appellant, v. DETECTIVES ASSOCIATION, INC., of the Police Department of Nassau County, et al., respondents.
Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Peter A. Bee, William C. DeWitt, and Jason Greenfield of counsel), for appellant. Steven E. Losquadro P.C., Rocky Point, N.Y. (John Ciampoli of counsel), for respondents.
Bee Ready Fishbein Hatter & Donovan, LLP, Mineola, N.Y. (Peter A. Bee, William C. DeWitt, and Jason Greenfield of counsel), for appellant.
Steven E. Losquadro P.C., Rocky Point, N.Y. (John Ciampoli of counsel), for respondents.
SHERI S. ROMAN, J.P., COLLEEN D. DUFFY, BETSY BARROS, FRANCESCA E. CONNOLLY, JJ.
DECISION & ORDER
In an action for a judgment declaring that a memorandum of agreement dated September 15, 2017, is invalid and unenforceable, the plaintiff appeals from an order and judgment (one paper) of the Supreme Court, Nassau County (Thomas A. Adams, J.), entered March 12, 2019. The order and judgment, in effect, granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint and, in effect, to compel arbitration, and, in effect, dismissed the complaint.
ORDERED that the order and judgment is modified, on the law, (1) by deleting the provision thereof, in effect, dismissing the complaint, (2) by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the complaint, and substituting therefor a provision denying that branch of the motion, and (3) by adding thereto a provision staying the action pending arbitration; as so modified, the order and judgment is affirmed, without costs or disbursements.
The County of Nassau and the Detectives Association, Inc., of the Police Department of Nassau County (hereinafter the DAI) are parties to a collective bargaining agreement. The County and the DAI entered into a memorandum of agreement dated September 15, 2017 (hereinafter the MOA), which addressed, inter alia, longevity payments. In March 2018, the County commenced this action seeking a judgment declaring that the MOA is invalid and unenforceable because it was based upon a mutual mistake of fact. The DAI then submitted a grievance to the Commissioner of Police, alleging, inter alia, that DAI members were not receiving longevity payments in accordance with the MOA. The County subsequently commenced a proceeding pursuant to CPLR article 75 to permanently stay arbitration against the DAI, which is the subject of Matter of County of Nassau v. Detectives Association, Inc., of the Police Department of Nassau County, 188 A.D.3d 1049, ––– N.Y.S.3d ––––, 2020 WL 6750537 (Appellate Division Docket No. 2019–05754; decided herewith).
In the instant action, the defendants moved pursuant to CPLR 3211(a) to dismiss the complaint and, in effect, to compel the County to submit to arbitration. The Supreme Court, in effect, granted the defendant's motion in its entirety and, in effect, dismissed the complaint. The County appeals.
As discussed in Matter of County of Nassau v. Detectives Assn., Inc. of the Police Dept. of Nassau County, 188 A.D.3d at 1050, ––– N.Y.S.3d –––– (Appellate Division Docket No. 2019–05754; decided herewith), the grievance arising from the MOA is arbitrable. As such, contrary to the determination of the Supreme Court, the validity of the substantive provisions of the MOA, including whether the MOA is invalid because of mutual mistake, is for the arbitrator to decide (see Matter of Cassone, 63 N.Y.2d 756, 758, 481 N.Y.S.2d 685, 471 N.E.2d 457 ; Matter of Prinze [Jonas] , 38 N.Y.2d 570, 577, 381 N.Y.S.2d 824, 345 N.E.2d 295 )
Further, CPLR 7503(a) provides, inter alia, that if a motion to compel arbitration in a pending action is granted, "the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration." Accordingly, upon granting that branch of the defendants' motion which was to compel arbitration, the court should have stayed, not dismissed, the County's action (see CPLR 7503[a] ; Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 300, 361 N.Y.S.2d 140, 319 N.E.2d 408 ; Estate of Castellone v. JP Morgan Chase Bank, N.A., 60 A.D.3d 621, 623–624, 875 N.Y.S.2d 130 ).
ROMAN, J.P., DUFFY, BARROS and CONNOLLY, JJ., concur.