Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

CHARTIER v. 3205 GRAN CONCOURSE CORP.

June 7, 2000

ROBERT L. CHARTIER, ETC., PETITIONER,
V.
3205 GRAND CONCOURSE CORP., ET AL., RESPONDENTS.



The opinion of the court was delivered by: Kaplan, District Judge.

MEMORANDUM OPINION

I

This Court previously (1) modified the arbitration award to identify the respondent as Marlin Management of NY, LLC ("Marlin"), (2) confirmed the award, as modified, to the extent it was rendered against Marlin, (3) otherwise denied the motion to confirm, and (4) dismissed the counterclaims in an opinion, familiarity with which is assumed.*fn1 The basis for confirmation of the award was the Court's conclusion that the issue whether Marlin was bound by the CBA had been determined adversely to it in a Bronx County Civil Court landlord-tenant proceeding (in which Marlin sought possession of the superintendent's apartment) and that the Civil Court's finding had preclusive effect here.

Subsequent to the entry of the Court's decision, Marlin sought reargument on the ground that the Civil Court had entered a later order providing that there would be no collateral estoppel or res judicata effect. This application was unsupported by any affidavit. Based on an affidavit by petitioner's counsel, Denise A. Forte. Esq., which inaccurately represented that the subsequent Civil Court order had been entered in a new proceeding, this Court declined to alter its decision.

Marlin then appealed. Based largely on "[t]he parties' explanations at oral argument," the Court of Appeals vacated so much of this Court's order as confirmed the award against Marlin and remanded for the purpose of determining whether the second Civil Court order was entered in the original or a new proceeding, whether in either case it is entitled to collateral estoppel effect and, if not, whether the award should be confirmed on other grounds. It affirmed in all other respects.*fn2

II

This Court has had the benefit of additional submissions by the parties following remand. It now is clear that the second Civil Court order was entered in the original summary proceeding and reflected the parties' agreement that the initial order would have no preclusive effect. Former adjudication is an affirmative defense which may be waived. The Court finds that petitioner waived any such defense and therefore declines to give preclusive effect to the initial order, even assuming that the order otherwise would be preclusive. The case therefore comes down to whether the arbitration award should be confirmed on the merits.

III

As this Court previously found, the CBA in question was entered into by the former owner of Marlin's building, 3205 Concourse Realty, Inc. ("3205 Concourse Realty"),*fn3 and Service Employees International Union, Local 32E, AFL — CIO (the "Union"). Marlin, an entirely unrelated entity, bought the building pursuant to a contract of sale dated May 9, 1997.*fn4 The contract, although not the deed, provided that the property was sold subject to the employment of the building superintendent, a Union member.*fn5 The arbitration at issue was commenced by the Union in consequence of Marlin's allegedly improper discharge of the superintendent. Marlin, which consistently took the position that it was not bound by the CBA, did not participate in the proceedings.

Arbitration is a creature of contract. In ordinary circumstances, no one is obliged to participate in it absent his or her agreement to do so.*fn6 In the labor context, however, broader considerations apply.*fn7

The Union here concedes that Marlin never signed the CBA. Indeed, Marlin steadfastly refused to discuss the matter with the Union. The Union nevertheless claims that Marlin agreed to be bound and, in any case, that it succeeded to 3205 Concourse Realty's obligations as a matter of law on a theory of successor liability.

Express or Implied Assumption

Petitioner relies first on the clause in the contract of sale in which Marlin agreed to purchase the building subject to the superintendent's employment. It argues that this was tantamount to an assumption of the CBA because the buyer purchased subject to the superintendent's employment, one aspect of which was the fact that the employment was governed by the CBA. But that is not an inescapable conclusion. Surely if the buyer intended to assume the seller's obligations under the CBA, there were more direct ways of expressing that object. Moreover, the clause might be read to mean only that the buyer recognized that the sale of the building was subject to the right of the superintendent to occupy his apartment rent free as long as his employment continued. Hence, the most that can be said for the contract of sale is that it is ambiguous — it arguably is susceptible of ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.