Di Rienzo v. Farrand Optical Co.

• Decision Date: 13 January 1956
• Citation: 148 N.Y.S.2d 587
• Parties: 30 Lab.Cas. P 69,893 John DI RIENZO, Plaintiff, v. FARRAND OPTICAL CO., Inc. (a domestic corporation) and William McCue, president, and Julius Molazzi, treasurer of the International Union of Electrical, Radio & Machine Workers of America, Local 475, CIO, Defendants.
• Court: New York City Municipal Court

Page 587

148 N.Y.S.2d 587

30 Lab.Cas. P 69,893

John DI RIENZO, Plaintiff, v. FARRAND OPTICAL CO., Inc. (a domestic corporation) and William McCue, president, and Julius Molazzi, treasurer of the International Union of Electrical, Radio & Machine Workers of America, Local 475, CIO, Defendants.

Municipal Court of City of New York, Borough of Bronx Second District.

Jan. 13, 1956.

Raphael, Searles, Levin & Vischi, New York City (Sidney O. Raphael and William Levin, New York City, of counsel), for plaintiff.

Satterlee, Warfield & Stephens, New York City (Donald W. Smith, New York City, of counsel), for defendant Farrand Optical Co., Inc.

Delson, Levin & Gordon, New York City (Carl Slater, New York City, of counsel), for defendants McCue and Molazzi.

SCHWARTZ, Justice.

This appears to be the first application to the Municipal Court for relief under Section 1451 of the Civil Practice Act which (by virtue of the 1954 amendment, Laws of 1954, Chapter 187) confers jurisdiction to stay an action or proceeding instituted in violation of an arbitration contract upon 'the court in which such action * * * shall be brought'. A motion for a stay under the statute is the proper and exclusive remedy of the party against whom an action at law is instituted in violation of an agreement to arbitrate, even though, because of a valid time limitation in the contract, arbitration is no longer available. River Brand Rice Mills, Inc. v. Latrobe Brewing Co., 305 N.Y. 36, 110 N.E.2d 545; Ott v. Metropolitan Jockey Club, 282 App.Div. 946, 125 N.Y.S.2d 163, affirmed 307 N.Y. 696, 120 N.E.2d 862.

Claiming the existence of a binding argreement to arbitrate, defendants McCue and Molazzi (joined by the co-defendant) seek to stay all proceedings in this action until arbitration be had. Plaintiff had been in the employ of defendant Farrand Optical Co., Inc. (hereafter referred to as the employer) as an expediter. A 'Labor Agreement' then was and still is in force between the employer and Local 475, International Union of Electrical, Radio and Machine Workers, C. I. O. (hereafter referred to as the union), of which defendants McCue and Molazzi are officers, plaintiff being a member of the union. The National Labor Relations Board had duly certified the union as the bargaining agent of employees of the company. Plaintiff's cause of action is based upon an 'express and implied contract' under which he seeks to recover 'lost wages' in the amount of $2,500, alleging that the loss was occasioned 'by virtue of the failure of defendants to accord to the plaintiff his rights of seniority'. It is clear from the record, however, that plaintiff acquired no 'rights of seniority' merely on the basis of his employment, but that such rights flowed solely from the provisions of the collective labor agreement entered into between the employer and the union, to which plaintiff was not a party (although, as an employee of the company and a member of the union, he was undoubtedly an intended beneficiary). Consequently, without reliance upon the union contract, no seniority rights existed in plaintiff's favor and he could assert no claim against his employer for failure to recognize such rights.

In the labor contract it is provided that 'all disputes, differences and grievances' shall be presented in a particular manner. The agreement outlines full and complete machinery and procedure for the processing and adjustment of controversies, the final step of which is arbitration. Thus, on the one hand, plaintiff seeks to adopt and have the court enforce that particular portion of the collective labor agreement which accords him seniority rights while, on the other hand, he wishes to renounce and circumvent the grievance and arbitration provisions of the same contract, which prescribes the exclusive method for the resolution and adjudication of disputes and differences. This, it must be held, he may not do. The court adopts the reasoning in Johnson v. Kings County Lighting Co., Sup., 141 N.Y.S.2d 411, 414--an authority which, surprisingly, counsel for the movants have not relied upon--wherein Mr. Justice Brown declared:

'The dominant purpose of the contracting parties was to avoid, if possible, industrial strife by requiring that disputes arising out of working conditions and the...