Opinion
00 Civ. 2447 (JSM).
December 21, 2000.
Mark S. Cash, New York, NY, For Petitioner.
Jamin R. Sewell, New York, NY, For Respondent.
MEMORANDUM OPINION AND ORDER
Luciano Diminich ("Petitioner") brought this action seeking to stay an arbitration proceeding commenced by the Hotel Employees and Restaurant Employees Union ("Respondent") pursuant to a collective bargaining agreement ("CBA"). Respondent charges that Petitioner sold his restaurant, Aperitivo, without requiring assumption of the CBA by the new owner, as was required by the CBA. Both sides have made cross-motions for summary judgment. Respondent's motion for summary judgment compelling arbitration is granted and Petitioner's motion to stay arbitration is denied. The petition is dismissed.
The CBA at issue contains a broad arbitration provision which states:
Any and all disputes between the parties to this Agreement, in connection with or arising out of the application or interpretation of this Agreement . . . may be submitted to final and binding arbitration . . . .
(Notice of Rem. Ex. A at 25.)
Petitioner's sole defense to the motion to compel arbitration is a claim that the union "repudiated the CBA thereby discharging Aperitivo Inc. in its obligation to arbitrate." (P.'s Mem. Supp. Pet. Stay Arb. at 2.) It is clear that this is a dispute arising out of the application of the CBA which must be presented to the arbitrator. See Emery Air Freight Corp. v. Local Union 295, 786 F.2d 93, 96 (2d Cir. 1986) ("The law has long been clear that where the parties have contracted to resolve their disputes by arbitration, a court asked to enforce that agreement should not weigh the merits of a claim that the agreement has been violated.").
SO ORDERED.