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HORNBLOWER & WEEKS-HEMPHILL NOYES, INC. v. CSAKY

February 24, 1977

HORNBLOWER & WEEKS-HEMPHILL NOYES, INCORPORATED, Petitioner,
v.
A. S. CSAKY, Respondent



The opinion of the court was delivered by: STEWART

MEMORANDUM

 STEWART, District Judge:

 In this proceeding petitioner Hornblower & Weeks-Hemphill, Noyes Incorporated ("Hornblower") asks the Court to stay a reparation proceeding *fn1" that respondent A. S. Csaky has commenced before the Commodity Futures Trading Commission ("CFTC"). *fn2" Hornblower seeks the stay on the ground that the issues involved in the reparation proceeding already have been determined in an arbitration proceeding which was reduced to judgment in the New York State Supreme Court under a clause in the contract between Hornblower and Csaky, and that the arbitrator's award is dispositive of all disputes between the parties. It is necessary to set forth a brief summary of the prior relationship and actions of the parties (which are undisputed) before turning to the question of whether this Court can grant a stay of the reparation proceedings.

 On June 17, 1975, Mr. Csaky opened an account with Hornblower to trade in commodity futures. Csaky executed a customer agreement which contained the following provisions:

 
6. This agreement and its enforcement shall be governed by the laws of the State of New York.
 
7. Controversies which may arise between you and the undersigned shall be determined by arbitration in the City of New York in accordance with the rules of the American Arbitration Association; or at the election of the undersigned, in accordance with the rules of the Board of Arbitration of the New York Stock Exchange, Inc. The award of any arbitrators appointed pursuant hereto shall be final and judgment upon the award rendered may be entered in any court having jurisdiction. The undersigned . .. hereby submits to the jurisdiction of such court.

 Mr. Csaky deposited approximately $25,000 with Hornblower at the time he signed the agreement. Throughout the summer of 1975, Hornblower traded for Mr. Csaky's account and as a result of these transactions, Csaky suffered a total loss of approximately $56,000. Since Csaky had previously paid Hornblower $25,000, his account had a deficit balance of approximately $31,000. Csaky refused to pay this amount, claiming that Hornblower had mishandled the account and thus was responsible for the loss.

 To resolve the dispute, Hornblower, on or about October 1, 1975, commenced an arbitration proceeding against Csaky for the recovery of $31,000, under the auspices of the American Arbitration Association. The arbitration hearing was held on February 6, 1976, but Mr. Csaky did not appear because he had filed a reparation complaint before the CFTC (see infra). *fn3" On February 24, 1976, the arbitrator awarded Hornblower $31,000 plus costs and interest. On March 25, 1976, Hornblower commenced an action in the New York State Supreme Court seeking to confirm the arbitrator's award, and seeking an entry of a judgment thereon. The award was reduced to judgment on April 20, 1976, and was filed with the Clerk of the County of New York on April 26, 1976.

 Concurrent with these arbitration proceedings, Mr. Csaky filed on February 5, 1976, *fn4" a reparation complaint with the CFTC, seeking to recover damages against Hornblower. *fn5" On March 2, 1976, the CFTC, in accordance with its Rules, 17 C.F.R. § 12.22, determined that Mr. Csaky's complaint stated a claim against Hornblower, and the CFTC forwarded the complaint to Hornblower for an answer, which it was required to file by May 7, 1976.

 On April 16, 1976, Hornblower commenced the instant proceeding in the New York State Supreme Court, seeking to stay Csaky from pursuing the reparation proceeding. *fn6" On April 26, 1976, the case was properly removed to the Federal District Court on the basis of diversity jurisdiction. On May 6, 1976, after a hearing, this Court refused to grant a temporary stay of the reparation proceedings pursuant to 28 U.S.C. § 1651(a). Consequently, Hornblower answered the reparation complaint, and a formal reparation proceeding was instituted by the Commission.

 Petitioner has devoted most of its brief to urging us to apply the stay provision of New York CPLR § 7503(a) (McKinney's 1963) to permanently enjoin the reparation proceeding. Petitioner claims that New York law applies in this diversity action because proceedings to compel arbitration are substantive as this term has been defined by the federal courts under Erie v. Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed. 1188 (1938); Lummus Company v. Commonwealth Oil Refining Company, 195 F. Supp. 47 (S.D.N.Y.1961). While we do not disagree with the above stated proposition of law, we nevertheless find that § 7503(a) is not applicable to the situation in the case at bar.

 CPLR § 7503(a) reads as follows:

 
(a) Application to compel arbitration; stay of action. A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate. Where any such question is raised, it shall be tried forthwith in said court. If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration.

 The language of the statute provides only that a stay be granted in conjunction with a motion to compel arbitration. It appears that there is no such remedy available to a party who wishes to stay an action without taking the affirmative step of compelling arbitration. *fn7" In the instant case, Hornblower has never moved to compel arbitration. Petitioner commenced an arbitration proceeding and instituted an action in the New York State Supreme Court to confirm the arbitrator's award. Four days before the award was reduced to judgment, petitioner finally moved, in a separate action, to stay the CFTC proceedings. Petitioner asserts that the action to stay was "the consequence of, and is supplementary to, the prior State Court proceeding." *fn8" We do not find that these actions obviate the requirement that any stay be in conjunction with a ...


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