Summary
concluding that plaintiffs who were not employed by defendant when arbitration provision was modified were not bound by modification
Summary of this case from Sanchez v. Clipper Realty, Inc.Opinion
15701-15701A Index No. 155081/16 Case No. 2020–04767, 2020–04769
04-12-2022
Boris PUSTILNIK et al., Plaintiffs–Respondents, v. PREMIER HOME HEALTH CARE SERVICES, INC., Defendant–Appellant.
Bond, Schoeneck & King PLLC, New York (Rebecca K. Kimura of counsel), for appellant. Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for respondents.
Bond, Schoeneck & King PLLC, New York (Rebecca K. Kimura of counsel), for appellant.
Virginia & Ambinder, LLP, New York (LaDonna M. Lusher of counsel), for respondents.
Renwick, J.P., Friedman, Moulton, Mendez, Pitt, JJ.
Order, Supreme Court, New York County (David Benjamin Cohen, J.), entered on or about July 22, 2020, which denied defendant's motion to compel arbitration and dismiss the second amended complaint and granted plaintiffs’ motion to permanently enjoin arbitration, unanimously modified, on the law, to dismiss the fourth cause of action, for Labor Law § 193 claims, and otherwise affirmed, without costs. Order, same court and Justice, entered November 13, 2020, which, to the extent appealable, denied defendant's motion to renew, unanimously affirmed, without costs.
Article XXVI of the 2009 collective bargaining agreement (CBA) between plaintiffs’ union and defendant employer mandated arbitration for a "grievance," defined as "a dispute arising ... concerning an alleged breach of a specific term of this agreement." Statutory wage claims such as those asserted by plaintiffs here arise independently of any collective bargaining agreement and are therefore not "grievances" as defined by the CBA, and thus are not subject to arbitration pursuant to the CBA (see Teshabaeva v. Family Home Care Servs. of Brooklyn & Queens, Inc., 198 A.D.3d 500, 156 N.Y.S.3d 21 [1st Dept. 2021] ; Hichez v. United Jewish Council of the E. Side, Home Attendant Serv. Corp., 179 A.D.3d 576, 117 N.Y.S.3d 214 [1st Dept. 2020], lv denied 37 N.Y.3d 909, 2021 WL 4189186 [2021] ; Lorentti–Herrera v. Alliance for Health, Inc., 173 A.D.3d 596, 104 N.Y.S.3d 103 [1st Dept. 2019] ; Agarunova v. Stella Orton Home Care Agency, Inc., 794 Fed. Appx. 138, 139 [2d Cir. 2020] ). The subsequent 2016 memorandum of agreement (MOA), modifying the 2009 CBA, does contain a broader provision that would potentially require arbitration of the claims, but was entered into after plaintiffs’ employment with defendant ceased. Supreme Court correctly found that plaintiffs, as pre–2016 MOA employees, were not parties to any agreement to arbitrate their statutory wage claims (see Konstantynovska v. Caring Professionals, Inc., 172 A.D.3d 486, 487, 103 N.Y.S.3d 364 [1st Dept. 2019] ).
Since plaintiffs agreed in their opposition to defendant's second motion to compel to withdraw any claim pursuant to Labor Law § 193 for unlawful deductions, the fourth cause of action should have been dismissed. We have considered the remaining arguments and find them unavailing.