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Lation v. Fetner Properties, Inc.

United States District Court, S.D. New York

December 22, 2017

CARL LATION, Plaintiff,



         This 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.

         The 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.

         I. Background

         Carl 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.)

         Lation 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. ¶¶ 188‒99.)

         Chiu 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.)

         The 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.

         Meanwhile, 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.)

         II. Motion To Compel Arbitration

         Pursuant 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.[1]

         The 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.[2] 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.”).

         Put 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 the arbitration.

         III. Motion for Default Judgment ...

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