Opinion
Index No. 653492/2023 Motion Seq. No. 001
01-12-2024
In the Matter of INTERNATIONAL UNION OF OPERATING ENGINEERS LOCAL 15, 15A, 15C &15D, AFL-CIO, Petitioner, v. DEBORAH BRADLEY CONSTRUCTION & MANAGEMENT SERVICES, INC., Respondent.
Unpublished Opinion
MOTION DATE 11/08/2023
DECISION, ORDER, AND JUDGMENT
HON. JOHN J. KELLEY JUSTICE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 1,2, 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 were read on this motion to/for _COMPEL ARBITRATION.
In this proceeding pursuant to CPLR 7502 and 7503(a), International Union of Operating Engineers Local 15, 15A, 15C &15D, AFL-CIO (the Union), petitions to compel arbitration of claim that the respondent, Deborah Bradley Construction &Management Services, Inc. (Bradley), violated a collective bargaining agreement (CBA) by failing to employ union labor in connection with the operation of certain heavy machinery on a New York City Department of Parks and Recreation (NYC DPR) project adjacent to the Cross Island Parkway in Queens. Bradley opposes the petition. The petition is granted, and the parties are directed to proceed to arbitration forthwith before arbitrators who shall be appointed as set forth herein.
The Union alleged that, on May 9, 2023, its business representative observed a piece of heavy front-loading equipment known as a "skid steer" being operated under Bradley's control in connection with a NYC DPR project. It further alleged that the relevant CBA, dated February 12, 2018, required Bradley to employ union labor with respect to the operation of the skid steer, but that Bradley refused to employ union labor, despite the Union's request, because the project was being undertaken for the NYC DPR. As relevant here, the CBA provided that,
"[a]ny complaint, dispute or difference arising out of this Agreement shall be referred to the Union Business Agent and a representative of the Employer for a job site meeting within three (3) days notice to them of the occurrence giving rise to such complaint, dispute or difference. If the matter is not resolved within seven (7) days of such meeting, then the aggrieved party may submit the matter for arbitration to one of the two (2) arbitrators named hereafter. These arbitrators shall be John Crotty and Eugene T. Coughlin."
Contrary to Bradley's contention, the Union satisfied the contractual condition precedent for initiating arbitration by timely referring the issue to its business agent and timely notifying Bradley's representative that there was a dispute under the CBA, and waiting at least seven days before demanding arbitration.
CPLR 7503(a) provides, in relevant part, that,
"[a] party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate."
Inasmuch as there is no substantial question here as to whether a valid arbitration agreement was made covering the issues in dispute, or that the Union complied with the CBA, this court must compel the parties to proceed to arbitration (see Sutphin Retail One, LLC v Sutphin Airtrain Realty, LLC, 143 A.D.3d 972, 973 [2d Dept 2016]).
Moreover, the fact that the specific persons named in the CBA to serve as arbitrators are no longer available to do so is no bar to the arbitration, and does not strip the court of its jurisdiction to direct arbitration. CPLR 7504 provides that,
"[i]f the arbitration agreement does not provide for a method of appointment of an arbitrator, or if the agreed method fails or for any reason is not followed, or if an arbitrator fails to act and his successor has not been appointed, the court, on application of a party, shall appoint an arbitrator"
(emphasis added). Where, as here, a designated arbitrator is barred from serving in that capacity, or is no longer available to serve, the court has authority to appoint a successor arbitrator or arbitrators (see Vieyra v Penn Toyota, Ltd., 116 A.D.3d 840, 841-842 [2d Dept 2014]). The court thus directs each of the parties to submit the name of a proposed arbitrator to the court, which will then determine whether to appoint them as substitute arbitrators in place and instead of John Crotty and Eugene T. Coughlin.
The respondent's remaining contentions are without merit.
Finally, the court draws the attention of the respondent's attorney to Rules of Professional Conduct (22 NYCRR 1200.0), Appendix A (Standards of Civility), which provide, at section I, that "[l]awyers should be courteous and civil in all professional dealings with other persons," and further provide at section l(B) thereof, in relevant part, that, "[w]hether orally or in writing, lawyers should avoid . . . disparaging personal remarks or acrimony toward other counsel." The court notes that, in its memorandum, the respondent's counsel repeatedly employed hyperbolic language, such as accusations the petitioner exhibited "audacity" in pursuing arbitration without allegedly satisfying the applicable conditions precedent, even though the petitioner did, in fact, satisfy those conditions, and language accusing the petitioner's counsel of a "flagrant omission" of the CBA's provision that the arbitration was to be heard before two specific arbitrators, even though a statute permits the court to appoint substitute arbitrators, characterizing the petitioner's attempt to obtain the respondent's consent to a particular substitute arbitrator as "preposterous[ ]," and alleging that the petitioner's counsel "egregiously" and "surreptitiously" omitted a complete version of the relevant CBA provision designating Crotty and Couglin as arbitrators, even though a complete copy was attached as an exhibit to the petitioner's papers. The court is mindful that attorneys should zealously represent their clients' interests, but the use of such scare words does not necessarily advance a client's factual or legal contentions.
In light of the foregoing, it is, ADJUDGED that the petition is granted; and it is,
ORDERED that, on or before January 31, 2024, the parties shall each provide the court with the name of an arbitrator before whom that party wishes the arbitration proceeding to be conducted and, after the court has issued a supplemental order appointing the two arbitrators as substitutes for John Crotty and Eugene T. Coughlin, the parties shall immediately proceed to arbitration before those arbitrators.
This constitutes the Decision, Order, and Judgment of the court.