Pirraglia v. Jofsen Inc.
| Decision Date | 20 July 2016 |
| Docket Number | Index No. 23247/2015E |
| Citation | 2016 NY Slip Op 33001 (U) |
| Parties | JOHN PIRRAGLIA, Plaintiff, v. JOFSEN INC., JORGENSON'S LANDING, INC., JOHN P. JORGENSON, CARL D. MADSEN, Defendant(s). |
| Court | New York Supreme Court |
Hon. Sharon A.M. Aarons:
Defendants Jofsen Inc., (Jofsen), Jorgenson's Landing, Inc., (Jorgenson's Landing) John P. Jorgenson, (Mr. Jorgenson), and Carl D. Madsen (Mr. Madsen), move for an order compelling arbitration of all the causes of action asserted against them in the verified complaint of plaintiff John Pirraglia, or in the alternative, an order dismissing, with prejudice, all the causes of action asserted in plaintiff' motion is granted in part and denied in part.
On February 11, 1986, plaintiff's parents, Salvatore and Theresa Pirraglia, (plaintiff's parents), entered into a contract (hereinafter "the 1986 contract") with Jofsen, in which plaintiff's parents conveyed real property at 701 Minnieford Avenue, in Bronx County, New York, to Jofsen and granted Jofsen a ten foot easement, with access to a pier located across another property owned by plaintiff's parents at 703 Minnieford Avenue, in Bronx County, New York. The 1986 contract also granted a four foot easement to plaintiff's parents on the 701 Minnieford Avenue property, thereinafter owned by Jofsen. Furthermore, the 1986 contract includes a clause mandating that the arbitration of any controversy, dispute or question involving the interpretation of, performance of terms within, or non performance of terms within the 1986 contract. However, the arbitration clause does not prohibit any of the parties from exercising their right to seek injunctive or equitable relief.
On November 30, 1991, plaintiff parents conveyed to plaintiff, by deed, the 703 Minnieford Avenue property. Subsequently, on February 11, 2003, plaintiff entered a five-year lease agreement with Jorgenson's Landing and Mr. Jorgenson, for a ten foot easement on the 703 Minnieford Avenue, in addition to access to and use of a pier and dock located at the rear of the 703 Minnieford Avenue property.
This action was commenced by plaintiff's filing a summons and a verified complaint on June 12, 2015. In the verified complaint, plaintiff asserts six causes action based on the alleged breach of the 1986 contract and 2003 lease agreement. The first cause of action is based on the alleged breaches of the 2003 lease agreement entered by Jorgenson's Landing and Mr. Jorgenson. The second cause of action pertains to the alleged breach of the 1986 contract by Jofsen. The third cause of action seeks a declaratory judgment that Jorgenson's Landing and Mr. Jorgenson are in default under the 2003 lease agreement and are no longer entitled to exercise their rights under it as a result. The fourth cause of action seeks an injunction from the Court enjoining all the defendants from entering, docking on, or passing over the plaintiff's property. The fifth cause of action requests an injunction directing all defendants to conduct repairs to the sea wall located at 701 Minnieford Avenue. And, the sixth and last cause of action seeks injunctive relief directing Jofsen to subdivide the property at 701 Minnieford Avenue.
Defendants assert that the arbitration clause within the 1986 contract governs the causes of actions asserted in plaintiff's verified complaint, and, consequently, the issues in the complaint must be resolved in arbitration. Defendants alternatively move to dismiss the complaint under CPLR3211.
As an initial matter, the Court will address plaintiff's argument that defendants' motion to compel should be denied in its entirety because the underlying 1986 contract is unenforceable as it prohibits either party from exercising its right under the New York Constitution to seek declaratory relief from the Courts. This argument is unavailing because paragraph fourteen of the 1986 contract expressly states that the parties are not prohibited from exercising their right to seek injunctive or equitable relief.
Moving forward, the Court will address defendants' motion to compel arbitration. "Generally, under New York statutory and case law, a court may address three threshold questions on a motion to compel or to stay arbitration: (1) whether the parties made a valid agreement to arbitrate; (2) if so, whether the agreement has been complied with; and, (3) whether the claim sought to be arbitrated would be time-barred if it were asserted in State court" (see Smith Barney, Harris Upham & Co., Inc. v Luckie, 85 NY2d 193, 201-02 [1995]; CPLR 7502[b]; 7503). Where, as here, a defendant moves to compel arbitration, the burden of proof is on the defendant to establish that arbitration should be compelled (see Bona Togs Limited v Goldstein and Leavy, 31 Misc 2d 765 [1961]).
With respect to the applicability of the arbitration provision in the 1986 contract, Jorgenson's Landing and Mr. Jorgenson cannot rely on it in seeking to compel arbitration. The only named parties to the 1986 contract were plaintiff's parents and Jofsen. Because Jorgenson's Landing and Mr. Jorgenson were not parties to the 1986 contract, and there is no evidence that they are the assignees of the original parties to the 1986 contract, they cannot seek enforcement of the arbitrationclause (see Willoughby Rehabilitation and Health Care Ctr., LLC v Webster, 31 AD3d 537, 538 [2d Dept 2006]). In fact, according to the 2003 lease agreement, the only contract to which Jorgenson's Landing and Mr. Jorgenson are parties with plaintiff, any disputes are to be resolved in the Courts, and not arbitration. As a result, the motion to compel arbitration is denied to the extent sought by Jorgenson's Landing and Mr. Jorgenson.
To the extent that Jofsen seeks to enforce the arbitration clause in the 1986 contract against plaintiff, this requested relief is denied because plaintiff was not a party to that contract. Rather, the 1986 contract was entered into between plaintiff's parents and Jofsen. As such, Jofsen cannot enforce the arbitration clause against plaintiff because plaintiff is not a party to the 1986 contract (see State ex rel. Grupp v DHL Exp. (USA), Inc., 19 NY3d 278, 285-86 [2012]). In light of the foregoing, the motion to compel arbitration is denied to the extent sought by Jofsen.
Defendants also seek the dismissal of the six causes of action asserted by plaintiff in his verified complaint pursuant to CPLR 3211(a)(1), (3), and/or (7).
The first cause of action is based on the alleged breaches of the 2003 lease agreement by Jorgenson's Landing and Mr. Jorgenson. According to the complaint, plaintiff alleges that Jorgenson's Landing and Mr. Jorgenson failed to pay rent due and failed to obtain insurance for the benefit of plaintiff as required by the 2003 lease agreement and that they subleased the dock to Mr. Madsen in contravention of the 2003 lease agreement's terms. Viewing the allegations in a...
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