Brown v. V & R Advertising, Inc.

• Decision Date: 22 August 1985
• Citation: 493 N.Y.S.2d 137,112 A.D.2d 856
• Parties: Bruce BROWN, Plaintiff-Appellant, v. V & R ADVERTISING, INC., et al., Defendants-Respondents, and The manufacturer of Star Phone 10,000, etc., Defendant.
• Court: New York Supreme Court — Appellate Division

Page 137

493 N.Y.S.2d 137

112 A.D.2d 856

Bruce BROWN, Plaintiff-Appellant, v.V & R ADVERTISING, INC., et al., Defendants-Respondents and The manufacturer of Star Phone 10,000, etc., Defendant.

Supreme Court, Appellate Division First Department.

Aug. 22, 1985.

R.F. Gregory, New York City, for defendants-respondents.

B.R. Fischer, New York City, for defendant.

Before MURPHY, P.J., and KUPFERMAN, ROSS, ASCH, and MILONAS, JJ.

MEMORANDUM DECISION.

Order of the Supreme Court, New York County, entered December 6, 1984, granting defendantV & R Advertising, Inc.'s (V & R)motion to compel arbitration; staying permanently plaintiff's action against V & R and the action against defendants Liebenson, The Kiplinger Washington Editors, Inc.(Kiplinger) and the other unnamed defendant, pending the completion of the directed arbitration proceeding, is affirmed, without costs or disbursements.

Plaintiff Brown is an actor specializing in TV commercials.He is a member of the American Federation of Television and Radio Artists (AFTRA).The union, upon behalf of its members, entered into a collective bargaining agreement with the entertainment industry and its producers.V & R, a commercial advertising producer, as well as Brown, were bound by the 1982 AFTRA collective bargaining contract.The other defendants, manufacturers of products whose commercials were produced by V & R, were admittedly not signatories to the Contract.The Contract provided for a broad arbitration clause to resolve all disputes relating to the Contract between the parties bound by the AFTRA collective bargaining agreement.

Thus, the arbitration clause in the AFTRA contract provided, in pertinent part (par 57, subd C and D):

57.ARBITRATION

All disputes and controversies of every kind and nature whatsoever between any Producer and the Union or between any Producer and any performer arising out of or in connection with this Contract, and any contract or engagement (whether overscale or not and whether at the minimum terms and conditions of this Contract or better) in the field covered by this Contract as to the existence, validity, construction, meaning, interpretation, performance, non-performance, enforcement, operation, breach, continuance, or termination of this Contract and/or such contract or engagement, shall be submitted to arbitration in accordance with the following procedure:

C.The word "Producer" as used in this Contract includes any third person to whom a commercial has been sold, assigned, transferred, leased or otherwise disposed of.Any Producer including such third party"Producer" may file with the Union the name and address of an available person in New York City, or in Los Angeles, upon whom service of a demand for arbitration and other notices and papers under this paragraph may be made.If such name and address is not on file with the Union, or if although on file the named person is not available, the Producer irrevocably appoints the Secretary of the American Arbitration Association as his or her agent to accept service and receive all notices, demands for arbitration and service of process in actions on the award in any suit by the Union or Union members.Producer further agrees that such notices, demands for arbitration and other process or papers may be served on the foregoing persons by registered mail sent to their last known address with the same force and effect as if the same had been personally served.

D.The parties agree that the provisions of this paragraph shall be a complete defense to any suit, action or proceeding instituted in any federal, state or local court or before any administrative tribunal with respect to any controversy or dispute which arises during the period of this Contract and which is therefore arbitrable as set forth above.The arbitration provisions of this Contract shall, with respect to such controversy or dispute, survive the termination or expiration of this Contract.

Defendant V & R, as a commercial producer, contracted with plaintiff to perform in two TV commercials, for products manufactured by Kiplinger (Changing Times Magazine), and for Star Phone (by a manufacturer unnamed as a defendant).Defendant Liebenson was a vice president of defendant V & R.Accordingly, the V & R employee contract with Brown to perform in the TV commercials was governed by the terms of the AFTRA collective bargaining agreement, and particularly the terms therein as to fees and compensation, as well as terms of employment in the performance of such commercials.

According to defendant V & R, plaintiff was employed by defendant V & R to appear in commercials as spokesman for Star Phone and Changing Times, and V & R was obligated to pay plaintiff the so-called holding fee, during the first (13-week)"cycle", as defined in the AFTRA contract (par 31).The so-called cycle period was, as to the Star Phone commercial, to commence in June 1983 and to expire in September 1983, while the Changing Times commercial was to expire in November 1983.

A dispute arose between Brown and V & R over the timeliness of the payment of the so-called holding fee and over defendant's right to renew the commercials for a second 13-week cycle.Brown claimed that by reason of the untimeliness of payment of the original holding fee, defendant V & R was not entitled to renew the subject TV commercial beyond the first cycle; i.e., the failure to pay the holding fee terminate the commercial contract as to the Star Phone commercial in September 1983, and as to the Changing Times commercial in November 1983.Defendant V & R, of course, disputes this contention.

Plaintiff thereafter commenced the instant action, but instead of alleging causes of action in breach of contract, he alleged statutory causes of action for invasion of privacy, or violation of his rights to privacy (under both statute and common law) by reason of defendant V & R's showing the "second cycle TV commercials without plaintiff's consent."Several statutory violations of a number of states were cited including New York Civil Rights Law § 51.As well, causes alleging violation of his common-law rights to privacy were also contained in the complaint.

Various defendants moved to compel arbitration, urging that the dispute is one that comes within the purview of the broad arbitration clause of the AFTRA contract.Defendants urged, in seeking to compel arbitration, that the subject claims were arbitrable under paragraph 57 of the AFTRA contract, which was still in force and effect in 1983 when the subject dispute arose, and that specifically under paragraph 57, subdivision Dsupra, plaintiff is barred from bringing this action and is compelled to go to arbitration.

Special Term directed arbitration and stayed the action against V & R permanently, holding that notwithstanding the form of the action, the causes in the complaint are sufficiently referable to the contractual rights of plaintiff under the AFTRA contract (including the rights of termination, see par 57) as to come within the ambit of the arbitration clause.

Furthermore, although the Court noted that the other defendants are not signatories to the AFTRA contract and thus are not bound to its arbitration clause, the claims against them are "derivative" of the claims against V & R, and are sufficiently similar so that the arbitration proceeding might resolve the disputed issues as against these defendants.Hence, the Court stayed the action as against these defendants pending resolution of the arbitration proceeding (citingEdwards v. Bergner, 22 A.D.2d 808, 254 N.Y.S.2d 798).

On appeal, Brown urges that this order/determination was erroneous since the arbitration clause does not encompass statutory claims which arose after termination of the Contract.Furthermore, he urges that since certain defendants are non-signatories to the Contract, and plaintiff has the right to bring a plenary action as against them, to compel arbitration...