Bletas v Subway Intl. B.V.

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Bletas v Subway Intl. B.V. 2011 NY Slip Op 32327(U) August 29, 2011 Supreme Court, New York County Docket Number: 116156/10 Judge: Judith J. Gische Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. SCANNED ON 81301201 1 [* 1] SUPREME COURT OF THE STATE OF NEW YORK PRESENT: HON. JUDITH J. GISCHE Justice - NEW YORK COUNTY PART I O Bletaa, Panayota and Bletas. John 116156/10 INDEX NO. Petltioners, MOTION DATE -v- 001 MOTION SEQ. NO. Subway International, B.V., MOTION CAL. NO. Respondent The following papers, numbered 1 to wore read on this motion tolfor PAPERS NUMBERED Notice of Motion/ Order to Show Causa -Affidavits - Exhibits ... - Exhlblts Answering Affidavits Replylng Affldavlts Cross-Motion: u Yes No *; : ; "' J ! X T : ,IE.NT J %?;k#d9dVas r w t been entered by th; Upon the foregoing papers, the court's decision on thls (the (N L - County Clerk and notice of entry cannot be served based hereon. TO obtain eniry, counsel or authorized representative must appear in person at the Judgmant Cbxk's DBsk (Room 1410). , w Petition a n d Motion ( 6 ) decided in accordance with the accompanying memorandum decision, order and Judgment L Dated: 8 37 1 FINAL DISPOSITION 1 NON-FINAL DISPOSITION 1 n DO NOT POST 0SElTLEISUBMIT ORDER Check one: Check if appropriate: c9 Hon. Judith J Gi che, J.s.c. [* 2] UNFILED JUDGMENT This judgment has not been entered by the County Cbrlc and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must in person at the Judgment Clerk s Desk (Room SUPREME C O U I ~ OF T STKITE01: NEW y COUNTY OF NEW YORK: IAS PARI 10 7 1 7 ~ 1 ~ ____________________II__________________--_---------------------- X Decision. Order and JudRment Index No. 116 156110 BLETAS, PANAYOTAyand HLETAS, JOHN, Petitioners, Seq No.: 001,003, 004,006,007 -againstSUBWAY INTERNATIONAI, B.V., Present: lion. Judith J. Gische, JSC Respondent. X _r-___________________________111_______------------------------- Recitation, as required by CPI,R motion(s): 5 221 9 [a] of the papers considered in the review of this (these) Numbered Papers Mot Seq No. 1 Bletas Notice of Pet and Pet (vacate) w/DM affid, POA, exhs ..._.._..,..,....... 1,2,3 Motion Seq No. 3 Subway n/m (dismiss) w/SBM affirm, exhs ............................. .......................... Bletas opp w/pb and JB opp, exhs ...................................................................... Subway reply w/SBM afijrm .............................................................................. 4 5 6 Motion Seq No. 4 Bletas n/m (renewal) w/PB a f f d ..............__..f.Il...........f..I.I.............I...I............I. 7 Bletav various affids, folders, exhs , ........... ...., , ,............ . .. ..,...... ....,,. ., . .......... 8-22 Subway opp w/SBM affirm, exhs ..................................................................... 23 Ijletas reply w/PB afEd, exhs ........................................................... ................, 24 MQtion Sey No. 6 Bletas OSC (disqualify) w/PB affid, exhs ........................................................ 25 Subway opp w/MK affirm, exhs ....................................................................... 26 Bletas reply w/exhs ......................................................................................... 27 Various orders , , ,..............., , ,.................,....._..._.... ..._......_... .,...._ ... , ..,. ...__.. , , ,.... 28 ... Motion Seq No. 7 Bletas (stay proceeding) w/PB affid, exhs ......, ...,............. , .., , ,.. ... .... .,... , , . , ........ 29 Subway opp w/SBM affirm, exhs ....................................... ............................. 30 Reply w/SBM affirm, cxh ...., ,,................III..............I.I,...............I. , , . ,,.............,. 3 1 Transcript of OA 6/16/1 1 .................... ...................................... ...................... .. 32 -Page 1 of 8- [* 3] Upon the~firegoingpnpers, decision and order of the court is CISjollows. lhe GISCHE J.: Motion sequences 001 , 003, 004, 006, 007 are consolidated for decision. In the instant proceeding, petitioners Panayota Bletas (Ms. Bletas) and her brother John Blelas seek to vacate two final arbitration awards, onc dated August 2, 201 0 (the August 2 Award), and the olher dated August 1 1,20 10 (thc August 1 1 Award). The August 11 Award was rendered in an arbitration brought by respondent Subway International B.V. (Subway) against Ms. Dlctas, related to a franchise agreement entered into between thcm on March 3 1,2005, lor Subway Restaurant # 36829, located in Greece. In the August 11 Award, Subway was awardcd 1 1,367.82 euros for monies due for royalties and advertising fccs. The August 2 Award was rendered in an arbitration brought by Subway against both petitioners, related to a March 3 1, 2004 franchise agreement entered into between Subway and the petitioners for Subway Restaurant #33926, also locatcd in Greece. In the August 2 Award, the arbitrator awarded 13,868.90 euros to Subway and 5,600 euros, for the costs of document production and translation, to petitioners, for a net award of 8,268.90 euros to Subway. Ms. Bletas brought a prior proceeding (Bletm v Suhwuy I d . B. K , index no. 1 11996/10, Sup Ct, NY County, Gische J.) (hereinafter Matter 1 I 1996/1Ott), in which she sought to modify or vacale the August 1 1 Award. On Decembcr 9,201 0, this court denicd her pelition, finding that service was improper to confer jurisdiction over Subway, and that thc petition otherwise lacks merit. Petitioners also brought a prior proceeding (Rletas v Suhwuy I d . B. K , index no. 11 1997/10, Sup Ct, NY County, Schlesingcr, J , ) (hereinafter Matter 11 1997/1O ), in which they -Page 2 of x- [* 4] sought to vacate the August 2 Award. On November 10, 20 10, that proceeding was dismissed without prejudice, on the basis of improper service. 0 The five motions in this procccding, consolidatcd for decision, are: a) motion sequence 001, in which petitioners seck to vacate the August 2 and August 1 I Awards; b) motion sequence 003, in which Subway moves to dismiss the petition; c) motion sequence 004, in which pctitioners move for an order granting rcnewal ol- Ms. Bletas s motion, in Matter 11 1996/10, to vacate the August 11 Award; d) motion sequence 006, in which petitioners movc to disqualify Subway s attorneys; and e) motion sequcnce 007, in which petitioners seek a stay of the instant proceeding. In motion sequence 00 1, pctitioners seek to vacate the underlying arbitration awards. In support of their petition, thcy submit the two memoranda of law that they submitted in support of Matters 111996/10 and 1 11997/10. In seeking to vacate the August 2 Award, they argue that the arbitrator crcditcd the testimony of witnesses that she should not have believed, that there was corruption and fraud, that thc arbitrator exceeded her powers by awarding types of relief not permitted by applicable law, and that the arbitrator is guilty of misconduct by refusing to hear relevant evidcnce, thereby prejudicing the rights of petitioners. In seeking to vacate the August 11 Award, Ms. Bletas argues that thc award is based on an error in law or a manifest disregard of the law. In motion sequcncc 003, Subway moves, pursuant to CPLR 32 11,to dismiss the petition on the grounds that: a) the court lacks pcrsonal jurisdiction over Subway; b) the petition fails to state a cause of action; and c) petitioners claims are barred by thc doctrines of collateral estoppel and res judicata. Subway asserts that the court lacks jurisdiction over it, such that the proceeding should -Page 3 of8- [* 5] be dismissed. Subway states that petitioncrs sent a Connecticut State Marshal to its Franchise World Headquai-tcrs in Milford, Connccticut. Subway explains that it is a Netherlands corporation and that petitioners did not serve anyone authorized to accept service on its behalf, pursuant to CPLR 3 I 1 (a) (I), and did not otherwise properly effectuate service under New York law. Subway further notes that, even if this service had been effective, petitioners have not provided any cornpctent arlidavit of service. Pursuant lo CPLII 3 11 (a) ( l ) , personal service upon any domestic or foreign corporation can bc made by delivcring the summons to an officer, director, managing or general agent, or cashier or assistant cashier or to any other agent authorized by appointment or by law to receive service. For the purported affidavit of service, petitioners submit a document dated December 15, 2010, that states, i n part: The within and foregoing is the original Notice of Petition, Verified Petition, Request for Judicial Intervention, Affidavit of Dorotheous Mafidis, Power of Attorney J made service upon the within named ,................ SUBWAY INTERNATIONAL, BV,,,, I met with two Attornies at 325 Bic Druve, Milford, Ct. Afte4r a lengthy discussion, where I set forth all Positions, they refused to accept scrvice, I left the service with the Receptionist to send up to the Legal Department. and by leaving a true and attested copy in the manner described with my endorsement thereon The within and forgoing is the original Notice of Petition, Verified Petition, Request for Judici a1 Intervention Affidavit of Dorotheous Mafidis, Power of Attorney with my doings hereon endorsed. (Text as in original). Thc bottom of [he documcnt slatcs ATTEST and is signed by Robert M. Hardiman, who, according to the document, is a State Marshal of New Haven County, Connecticut. This service is not adequate to satisfy CPLR 3 1 1 (a) ( I ) , as it does not indicate that the petition and other -Page 4 of 8- [* 6] documents were delivered to any of the people set forth in CPLR 3 1 1 (a) (1) to receive service. ~ The instant petition otherwise lacks merit. Pursuant to CPLR 75 11 (b) (l), an arbitration award shall be vacated if the court finds that the rights of a party were prejudiced by: (i) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral .,,; or (iii) an arbitrator .., cxcccdcd his power or so imperfectly executed it > that a final and definjtc award upon the subject matter submitted was not made ... Many of the papers submitted by petitioners are not set forth or submitted to the court in the standard manner, making it challenging to address all of their arguments and positions. The court also notes that petitioners at one point refer to themselves as forcign pro se litigants, yet at othcr timcs seem to be represented by and/or assisted by a Greek and Canadian attorney. As this court found in Matter 11 1996/10, Ms. Bletas did not meet the heavy burden of proving a manifest disregard for the law. Rletas v Suhway I d . B. I?, index no. 1 1 1996/10, (Gische, J., December 9 , 2 0 10). Courts are reluctant to disturb the decisions of arbitrators lest the value of this melhod of resolving controversies be undermined. Matter of Go1u nger v Lisker, 68 NY2d 225, 23 1 (1 986). Petitioners allegations arc not supporkd with sufficient evidence to meet the heavy burden of vacating an arbitration award pursuant to CPLR 75 1 1. Thus, Subway s motion to dismiss is granted and the petition is denied. Petitioners three other motions are unavailing and do not affcct the court s dismissal of the proceeding and denial of the petition. In motion sequence 004, petitioners move, pursuant to CPLR 2221, for an order granting renewal of its September 10, 2010 motion, in Matter 1 1 1996/10, to vacate the August 11 Award. ~ Petitioners contend that their motion to renew is based on new facts that have occurred lhat were not offercd on thc prior motion and which would change the prior determination. Petitioners -Page 5 of 8- [* 7] argue that there is reasonable justification for their failure to present such facts on the prior motion. 0 In support of the motion, petitioners submit several manila f oldcrs, with documents that purport to, among other things, indicate that petitioners attorney was threatened and blackmailed, and that certain documents were forged and tampered with in the arbitration. Petitioners thus maintain that they have offered new facts as to crimiiial ofl enses committed by Subway and its attorney that are scrious enough to change any prior determination. Petitioncrs also rci-er to what they dcscribc as new f x t s concerning the bias and prejudice of the judgc presiding in a case pending in federal court in Connecticut, where Subway has commenced actions to confirm the August 2 and August 11 Awards. None of the documents submitted by petitioners persuades this court that there are facts that have subsequently arisen that were overlooked when, in Mattcr 1 119961IO, the court denied the petition that sought to modify and vacate the August 1 I Award. In motion sequencc 006, petitioners move to disqualify Subway s attorneys from the instant proceeding on the basis of. unprofessional and bad faith behavior, misconduct, fraud and conflict of interest. Petitioners allege that oral arguments were scheduled in this proceeding without her being inlbrmed, and that Subway s atlorncys misled her as to dates they intended to adjourn. Pelitioncrs note that they do not have a New York address and that, as foreign pro se litigants, they do not now know how to use the Court Scroll System. A party seeking to disqualify an attorney or a law firm, must establish (I) the existence of a prior attorney-client relationship aiid (2) that the former aiid current representations are both adverse and substantially rclated. Solow v Gruce & Co., 83 NY2d 303, 308 (1994). Petitioners do not set forth allegations or proof olany conflict of interest on thc part of Subway s attorneys. -Page 6 of 8- [* 8] Rather, petitioners contend that Subway s lawyers should be disqualified because of their alleged misbehavior, including allegedly misleading Ms. Bletas as to dates 01 oral argument on certain motions beforc this court. The motion is denied. Subway states that its request to adjourn a March 9, 201 1 oral argument on petitioners motion to compel did not affect two other motions scheduled for arguinent on that date. Subway asserts that its counsel did not have a duty to rcmind petitioncrs that oral argument on other motions ol petitioncrs were also scheduled for that datc. Subway also notes that petitioners motion to disqualify Subway s attorneys in the federal action in Connecticut was denied on May 3,201 1 In motion sequence 007, pctitioners move, pursuant to CPLR 2201, lor a stay of this proceeding. CPLR 2201 states that [elxccpt where otherwise prescribed by law, the court in which an action is pending may grant a stay of proccedings in a propcr case, upon such terms as may be just. Petitioners assert that, in March of 20 1 1, upon learning about the purportedly unethical behavior of Subway s attorneys relating to the scheduling of oral arguments, Ms. Bletas collapscd outside this courthouse and was adrnittcd to the emergency Toon1 of St. Luke s Roosevelt Hospital. Slic contends that, sincc then, she has been taking medication and receiving treatment. Petitioners submit medical documentation, including an April 14,20 1 1 medical report, translated from Greek into English, which states that Ms. Blctas ((suffers from stress disorders, panic and intense phobias in the context of depression. it also advises that shc needs up to two months of relaxation and avoidance ol traiisportation, after which t h e shc will be re-examined. The court has determincd that pctitioners are not entitled to the reliel that they seck in the petition. Therefore, staying the maltcr would only delay, without affecting, the final result of the -Page 7 of 8- [* 9] -_ . . 4 instant proceeding. Thus, there is no reason to stay the proceeding and motion sequence 007 is denied. Accordingly, it is ORDERED that the motion to dismiss, sequence number 003, is granted; and it is further ADJUDGED that thc pctition is denied and the proceeding is dismissed, with costs and disburserncnts to rcspondent as taxed by the Clerk; and it is further ORDERED that pctitioners' motions, sequence numbers 001, 004,006 and 007, are denied; and it is I'urther ORDER131 that this constitutes thc decision, order and Judgment of the court. Dated: New York, New York August 20 I I a, ENTER: HDN. J l h f H J. GISCHE J.S.C. UNFILED JUDGMENT This Judgmenthas not been entered by the County Glerk and notice of entry cannot be served based hereon. To obtain entry, counsel or authorized representative must amear in person at the Judgment Clerk's Desk (Room l4lB). -Page 8 of 8- .. .

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