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Kalyanaram v. New York Institute of Technology

June 4, 2009

GURUMURTHY KALYANARAM, PETITIONER-APPELLANT,
v.
NEW YORK INSTITUTE OF TECHNOLOGY, RESPONDENT-RESPONDENT. LABE M. RICHMAN, NONPARTY-APPELLANT.



Judgment, Supreme Court, New York County (Marylin G. Diamond, J.), entered November 15, 2007, dismissing the petition in this special proceeding pursuant to CPLR 7502(c), granting respondent's motion to enjoin petitioner and his agents from threatening, or attempting to influence any of the witnesses or prospective witnesses in the arbitration proceeding, and awarding respondent costs pursuant to 22 NYCRR 130-1.1(c)(2) totaling $5,142.50 as against petitioner and $10,142.50 as against his attorney, nonparty appellant Labe M. Richman, Esq., modified, on the law and the facts, as to the awarding of costs only, and otherwise affirmed, without costs. Appeal from order, same court and Justice, entered October 18, 2007, unanimously dismissed, as subsumed in the appeal from the judgment. Order, same court and Justice, entered November 30, 2007, which denied petitioner's motion for injunctive relief and denied his request for 22 NYCRR 130-1.1 sanctions against respondent, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Moskowitz, Renwick, Freedman, JJ.

107961/07

The court properly exercised its discretion (see Town of Esopus v Fausto Simoes & Assoc., 145 AD2d 840, 841 [1988]) in denying injunctive relief to reinstate petitioner's rights and privileges as a tenured professor pending resolution of an arbitration proceeding. Petitioner failed to meet his burden of demonstrating a "likelihood of success on the merits, irreparable injury in [the] absence of such relief and a balancing of the equities in [his] favor" (Matter of Non-Emergency Transporters of N.Y. v Hammons, 249 AD2d 124, 127 [1998]). The record shows that respondent's representatives promptly and thoroughly investigated the students' allegations against petitioner and found them credible. Nor did the record support petitioner's contention that respondent violated the collective bargaining agreement, as respondent maintained petitioner on the payroll pending determination of the agreement's grievance/arbitration process.

However, we find that under all of the circumstances, the court abused its discretion in awarding costs against petitioner and his attorney pursuant to 22 NYCRR 130-1.1 based on the record before it and modify the decision so as to eliminate the award of costs.

We have considered the remaining arguments of petitioner and Mr. Richman and find them unavailing. All concur except Tom, J.P. who dissents in part in a memorandum as follows:

TOM, J.P. (dissenting in part)

Petitioner, already represented by an attorney on his claim of wrongful termination of employment, retained a criminal lawyer whose sole contribution was to send a letter to respondent's witness stating that her testimony against petitioner could constitute perjury, followed by a letter to the respective director of security at each of respondent's New York campuses asserting that "an investigation by your office will lead you to the conclusion that [the witness] committed perjury in violation of New York Penal Law Sections 210.05; 210.10." Since I agree that no valid basis has been advanced for the equitable relief sought by petitioner and because I regard the unauthorized communication as an unvarnished attempt to intimidate a witness, I conclude that the imposition of costs and the award of attorneys' fees against petitioner and additional counsel was a provident exercise of Supreme Court's discretion.

After investigating complaints from 37 students regarding petitioner's inappropriate conduct during class, respondent sent a letter to petitioner notifying him that, pursuant to the collective bargaining agreement (CBA) governing professors employed by New York Institute of Technology, "you are hereby dismissed, effective as of May 21, 2007, for engaging in serious professional misconduct." The letter asserted that petitioner denigrated students' intelligence and ethnicity, made sexually explicit remarks, demeaned other faculty members at an affiliated college and made sexual advances toward female students. On June 4, petitioner invoked the grievance procedure under the CBA and, the following day, brought this proceeding (a) to compel arbitration (CPLR 7503[a]) and (b) for equitable relief (CPLR 7502[c]) "prohibiting respondent from effectuating petitioner's dismissal... and (c) compelling respondent to permit petitioner to continue in his employment... until the completion of grievance and arbitration proceedings."

The CBA provides that in the event respondent decides to "suspend or dismiss a faculty member," he or she may file a grievance, in which case the parties will utilize the CBA's grievance and arbitration procedures. The CBA further provides that the faculty member "shall be paid until the review procedures set forth herein are exhausted and a final determination rendered." It is undisputed that petitioner is continuing to receive his regular salary pending resolution of the grievance proceeding.

Having filed his grievance on June 4, 2007, petitioner was not, on June 5, 2007 when the petition was filed, "[a] party aggrieved by the failure of another to arbitrate" (CPLR 7503[a]) so as to warrant issuance of an order compelling arbitration. The petition alleges neither that respondent refused to proceed with arbitration nor delayed the proceedings. Furthermore, the relief sought by petitioner is already available to him under the parties' CBA. Thus, petitioner failed to demonstrate the need for judicial intervention.

The availability of limited provisional relief under article 75 is not an invitation to commence proceedings merely collateral to arbitration. To avoid resort to the courts to protract the proceedings, "the Legislature has assigned the courts a minimal role in supervising arbitration practice and procedures" (Matter of Nationwide Gen. Ins. Co. v Investors Ins. Co. of Am., 37 NY2d 91, 95 [1975]). Injunctive relief is available "only upon the ground that the award to which the applicant may be entitled may be rendered ineffectual without such provisional relief" (CPLR 7502[c]). Petitioner has not shown why an award rendered in arbitration would be less than effective in affording him the full relief to which he is entitled under the CBA. Nor, as the majority notes, has petitioner established the customary equitable criterion of immediate and irreparable injury (CPLR 6301; see Koultukis v Phillips, 285 AD2d 433, 435 [2001]) required of a party seeking injunctive relief under CPLR 7502(c) (see Koob v IDS Fin. Servs., 213 AD2d 26, 32 [1995]). Thus, he has not established that his is an exceptional case warranting reversal of the denial of preliminary injunctive relief (see Town of Esopus v Fausto Simoes & Assoc., 145 AD2d 840, 841 [1988]).

As to respondent's motion for costs and attorneys' fees against petitioner and additional counsel (collectively, appellants) under Rules of the Chief Administrator of the Courts (22 NYCRR) ยง 130.1.1(c)(2), "[t]he authority to impose sanctions or costs is committed to the court's sound discretion and, absent an abuse thereof, [an appellate court] will not disturb such an award" (McCue v McCue, 225 AD2d 975, 977 [1996]). This Court "will defer to a trial court regarding sanctions ...


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