United States District Court, S.D. New York
OPINION AND ORDER
PAUL OETKEN, UNITED STATES DISTRICT JUDGE
action arises out of Defendant Thomas Chiu's alleged
harassing and discriminatory conduct against Plaintiff Carl
Lation, who works as a concierge in the Manhattan condominium
in which Chiu is a resident-owner. (Dkt. No. 1
(“Compl.”).) Lation filed suit against Chiu; 1212
Fifth Avenue Condominium (“1212 Fifth Avenue”),
the condo association; and Fetner Properties, Inc.
(“Fetner”), the management company. But Chiu-the
source of the problem- has thus far failed to appear or to
answer the Complaint.
parties agree that the dispute between Lation and 1212 Fifth
Avenue/Fetner should be resolved in arbitration, but they
disagree about how to resolve Lation's claims against
Chiu. Lation moves for a default judgment against Chiu
(see Dkt. No. 25), while 1212 Fifth Avenue and
Fetner move to compel arbitration of all of
Lation's claims-including those against Chiu. For the
reasons that follow, Lation's motion for default judgment
against Chiu is granted in part and denied in part, and
Defendants' motion to compel arbitration is granted with
respect to 1212 Fifth Avenue and Fetner but denied with
respect to Chiu.
Lation works as a concierge at 1212 Fifth Avenue Condominium,
a luxury condominium on Manhattan's Upper East Side.
(Compl. ¶¶ 50‒54.) The Complaint details a
variety of disturbing incidents in which Thomas Chiu, a
resident of the condominium, harassed Lation while on duty.
Over the course of many months, Chiu directed racist and
homophobic comments and other profanities at Lation (Compl.
¶¶ 64, 68‒73, 75‒81, 92‒95,
117‒24, 160‒66, 169‒72); slapped
Lation's hand as he was giving Chiu his mail (Compl.
¶¶ 144‒49); and exposed his buttocks to
Lation (Compl. ¶¶ 101‒09). Lation alleges
that Chiu's “outrageous . . . racially
discriminatory . . . [and] homophobic conduct” created
a hostile work environment and caused him to suffer
“anxiety and humiliation, embarrassment, shame . . .
stress . . . emotional trauma, psychological anguish and
mental distress.” (Compl. ¶¶ 178‒79.)
filed this action in May 2017. The Complaint alleges four
causes of action: (1) violation of federal
anti-discrimination laws, namely the Civil Rights Act of
1866, the Thirteenth Amendment to the U.S. Constitution, and
Title VII of the Civil Rights Act of 1964 (“Count
One”); (2) violation of the New York City Human Rights
Law (“Count Two”); (3) intentional infliction of
emotional distress (“Count Three”); and (4)
tortious interference with an employment contract
(“Count Four”). (Compl. ¶¶
was served with the Summons and Complaint via personal
service on May 16, 2017. (Dkt. No. 11.) But despite
significant efforts by Lation and the Court, Chiu has failed
to defend the action against him. Chiu received three letters
from Lation's counsel on June 12, June 30, and July 8,
2017, alerting Chiu to the litigation and requesting that he
appear in the case. (Dkt. No. 26 & Exs. A‒C.) The
Court also issued two separate warnings, on July 18 and
September 12, 2017, ordering Chiu to appear and submit a
response. (Dkt. Nos. 23, 27.) Receiving no response from
Chiu, Lation moved for default judgment on September 11, 2017
(Dkt. No. 25), and served Chiu with a copy of the motion for
default judgment via first-class certified mail on September
14, 2017 (Dkt. No. 30). The Clerk of Court issued a
Certificate of Default as to Defendant Chiu on September 20,
2017. (Dkt. No. 31.)
Court then received two letters from Chiu, dated October 6
and October 8, 2017. In the letters, Chiu stated that he does
not know Carl Lation, that he is “not sure what [he is]
facing for this lawsuit and what the charges are, ” and
asked the Court to “please explain the details [of]
this matter.” (Dkt. Nos. 32, 33.) In response, the
Court directed Chiu to appear for a conference and to submit
a written answer to Lation's allegations. (Dkt. No. 34.)
The Court warned Chiu that if he failed to appear at the
conference, “a default judgment will be entered against
you.” (Id. at 1.) Chiu did not appear, and the
Court has not heard from Chiu since. As of the date of this
Order, Chiu has not appeared, responded to the Complaint, or
responded to the motion for default judgment.
1212 Fifth Avenue and Fetner have jointly moved to compel
arbitration. (Dkt. No. 39.) Lation does not oppose the motion
to compel arbitration of his claims against 1212 Fifth Avenue
and Fetner, but he does oppose their request to compel
arbitration of his claims against Chiu. (Dkt. No. 43 at 1.)
Motion To Compel Arbitration
to the Collective Bargaining Agreement (“CBA”)
between Lation's union and the Realty Advisory Board, all
relevant parties have agreed to arbitrate Lation's claims
against 1212 Fifth Avenue and Fetner. (See Dkt. No.
43 at 1.) Consequently, the Court need only decide the proper
forum for Lation's claims against Chiu.
answer to that question is simple. Despite the parties'
extensive briefing on whether Chiu could compel
arbitration based on his CBA with his employer, the fact is
that Chiu has not sought such relief from this Court. Indeed,
Chiu is not party to the CBA. (See Dkt. No. 41-2.)
Even assuming that Chiu and Lation had an enforceable
arbitration agreement, the existence of such an agreement
would not deprive this Court of jurisdiction. And the Court
will not sua sponte compel arbitration, especially
when Chiu-the supposed beneficiary of his co-defendants'
motion to compel arbitration-has given no indication that he
would consent to be bound by the decision of an arbitrator.
Accord PRL USA Holdings, Inc. v. United States Polo
Ass'n, Inc., No. 14 Civ. 764, 2015 WL 1442487, at *3
n.2 (S.D.N.Y. Mar. 27, 2015) (“Neither party seeks to
compel arbitration of [the plaintiff's] claims . . ., and
the Court declines to do so sua sponte.”);
Lefkowitz v. Reissman, No. 12 Civ. 8703, 2014 WL
925410, at *8 (S.D.N.Y. Mar. 7, 2014) (“[T]he Court
appreciates that enforcing an arbitration clause sua
sponte might be inappropriate in certain situations-such
as . . . when neither party has explicitly requested
arbitration . . . .”); Amiron Dev. Corp. v.
Sytner, No. 12 Civ. 3036, 2013 WL 1332725, at *3
(E.D.N.Y. Mar. 29, 2013) (“[N]otwithstanding the strong
federal policy favoring arbitration, the Court has no
authority to sua sponte enforce an arbitration
provision. Therefore, the Court will not . . . address the
applicability of the arbitration provision here absent a
formal motion to compel.” (citations omitted)); In
re Arbitration Between Standard Tallow Corp. & Kil-Mgmt.
A/S, 901 F.Supp. 147, 151 (S.D.N.Y. 1995) (“The
court . . . does not have before it a proper petition to
compel arbitration . . . and the court refuses to provide
such relief sua sponte.”).
simply, Chiu has not moved to compel arbitration, so the
Court will not compel arbitration of the claims against Chiu.
In contrast, with the consent of all relevant parties, the
Court grants the motion to compel arbitration with respect to
all claims against 1212 Fifth Avenue and Fetner, and the
Court further grants the motion to stay the proceedings
against 1212 Fifth Avenue and Fetner pending the outcome of
Motion for Default Judgment ...