Berger v. N.Y. Univ.

205 A.D.3d 531

166 N.Y.S.3d 530 (Mem)

In the Matter of Richard BERGER etc., Petitioner–Respondent,

v.NEW YORK UNIVERSITY, Respondent–Appellant.

15959-15959A

Index No. 152610/19

Case Nos. 2020-03493, 2020-04646

Supreme Court, Appellate Division, First Department, New York.

ENTERED May 19, 2022

DLA Piper LLP (US), New York (Garrett Kennedy of counsel), for appellant.

Virginia & Ambinder, LLP, New York (James Emmet Murphy of counsel), for respondent.

Kapnick, J.P., Webber, Mendez, Pitt, Higgitt, JJ.

Order, Supreme Court, New York County (Debra A. James, J.), entered July 10, 2020, which vacated, resettled, and corrected a prior order, same court and Justice, entered April 29, 2020, and which granted petitioner's motion to stay arbitration of his claims against defendant New York University (NYU), unanimously affirmed, without costs. Appeal from April 29, 2020, order unanimously dismissed, without costs, as superseded by the July 10, 2020 order.

The issue of whether petitioner's claims are arbitrable was properly before the motion court, as the language of the arbitration clause contained in the collective bargaining agreement (CBA) between petitioner's union and NYU lacks the plain and sweeping language demonstrating an intent by the parties to delegate the question of arbitrability to an arbitrator (see e.g. Matter of Steyn v. CRTV, LLC, 175 A.D.3d 1, 11, 103 N.Y.S.3d 415 [1st Dept. 2019] ; cf. Matter of Smith Barney Shearson Inc. v. Sacharow, 91 N.Y.2d 39, 46, 666 N.Y.S.2d 990, 689 N.E.2d 884 [1997] ). The clause does not state that it encompasses "any and all disputes" between the parties (see John Hancock Life Ins. Co. v. Wilson, 254 F.3d 48, 53–54 [2d Cir. 2001] ), and it does not explicitly delegate the arbitrability question to an arbitrator (cf. Smith Barney Shearson, 91 N.Y.2d at 46, 666 N.Y.S.2d 990, 689 N.E.2d 884 ).

Moreover, the CBA does not evince a clear and unmistakable intent to arbitrate the Labor Law claims at issue here (see 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] ; see Lorentti–Herrera v. Alliance for Health, Inc., 173 A.D.3d 596, 104 N.Y.S.3d 103 [1st Dept. 2019] ). The arbitration clause does not explicitly state that Union members agreed to submit to arbitration all causes of action arising out of their employment, and it does not specifically reference the statutes on which petitioner's claims are based ( Tamburino v. Madison Sq. Garden, L.P., 115 A.D.3d...