Oborski v Marjam Supply Co., Inc.

[*1] Oborski v Marjam Supply Co., Inc. 2013 NY Slip Op 50898(U) Decided on June 4, 2013 Supreme Court, Kings County Rivera, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 4, 2013
Supreme Court, Kings County

Christopher Oborski, individually and on behalf of all others similarly situated, Plaintiffs,

against

Marjam Supply Co., Inc., Defendant.



7916/12



Attorney for the Plaintiff

Frank & Associates, PC

Peter A. Romero, Esq.

500 Bi-County Blvd 112N

Farmingdale, New York 11735

631-756-0400

Attorneys for the Defendant

Carella, Byne, Cecchi, Olstein, Brody & Agnello

5 Becker Farm Road

Roseland, New Jersey 07068

973-994-1700

&

Forchelli & Forchelli

Jan Alan Brody, Esq.

32-02 30th Street

Long Island City, New York 11102

718-278-6117

Francois A. Rivera, J.

By notice of motion filed on November 21, 2012, under motion sequence number two, defendant Marjam Supply Co., Inc., (hereinafter Marjam) has moved for an order to dismiss plaintiff's complaint or in the alternative stay the instant action and compel the plaintiff to resolve his claims through arbitration. The notice of motion fails to state the procedural vehicle for the relief requested, however the memorandum of law states that dismissal is sought pursuant to 3211(a)(1) and the request to compel is pursuant to CPLR 7501 & 7503.

Plaintiff Christopher Oborski (hereinafter Oborski) has opposed the motion.

BACKGROUND [*2]

On April 13, 2012, Oborski commenced the instant action on behalf of himself and others similarly situated, for damages arising from defendant's alleged violations of the New York State Labor Law, by filing a summons and complaint with the Kings County Clerk's office. Plaintiff's complaint contains seventy-one allegations of fact in support of one cause of action. The only cause of action alleges violations of the New York Labor Law Article 19 § 650 et seq and the supporting New York State Department of Labor Regulations including 12 NYCRR Part 142 for failing to pay overtime wages. Issue has not been joined. There has been no class certification.

MOTION PAPERS

Defendants motion papers consists of a notice of motion, an affirmation of Carmen Arguelles, the Chief Operating Officer of Marjam, a memorandum of law and a "superceding" attorney affirmation. The superceding attorney affirmation contains ten exhibits labeled 1 through 5, the numbered exhibits contain two sets of sub-exhibits, one that is labeled A through C and the second that is labeled A and B. Exhibit 1 contains a copy of a notice of motion to dismiss plaintiff's complaint and for other relief filed on November 21, 2012. Exhibit 2 contains a copy of the affidavit of Carmen Arguelles and three sub-exhibits labeled A through C. Sub-exhibit A is what is described as a printout of documents entitled "718 Problem Resolution" for MARJAM, effective April 24, 1997. Sub-exhibit B contains what is described as plaintiff's application for employment which includes an employee waiver of insurance, authorization to conduct a background investigation, employment eligibility verification, photocopy of the New York State Drivers License and social security card, a W2 form for 2003 and a direct deposit request form. Sub-exhibit C contains a copy of an undated document entitled "MARJAM Supply Company Employment Agreement Sales." Exhibit 3 contains an attorney affirmation dated November 20, 2012, with two annexed sub-exhibits labeled A and B. Sub-exhibit A contains copies of the summons and complaint dated April 12, 2012 and copies of what appear to be email correspondence between non-parties Jane Madray and Jim Hollber. Sub-exhibit B contains four stipulations to adjourn defendant's prior motion to dismiss that was marked off the calender for failure to appear on September 7, 2012. Exhibit 4 contains a proposed order granting the defendant's motion, dismissing the complaint and compelling arbitration. Exhibit 5 contains a document labeled "affidavit of service" which attests that the defendant served a request for judicial intervention, notice of motion to dismiss, memorandum of law, and affirmations in support upon the plaintiff.

The affidavit of Carmen Arguelles, the Chief Operating Officer of Marjam contains three exhibits labeled A through C. Exhibit A is a copy of a document described as a printout from MARJAM's online version of its employee handbook, specifically a section entitled "718 Problem Resolution." Exhibit B contains documents described as plaintiff's redacted application for employment. Exhibit C contains a copy of the MARJAM employment contract, which allegedly includes an arbitration clause.

In opposition to the motion the plaintiff submits a memorandum of law and an attorney affirmation with four exhibits labeled A through D. Exhibit A contains a copy of a document described to be the American Arbitration Associations's (AAA) Class Action Rules § 5. Exhibit B contains a copy of a document described as the AAA's Commercial Rules, R-43. Exhibit C is a document described as the AAA's Employment Rules, Rule 39. Exhibit D is Oborski's [*3]affidavit in opposition to the motion.

In reply to plaintiff's opposition the defendant submits a memorandum of law, an affidavit of Mark Buller, President of MARJAM and an attorney affirmation with two exhibits, labeled A and B. Exhibit A contains documents described as pages 38-43 of the AAA's "Employment Arbitration Rules and Mediation Procedures." Exhibit B are documents described as printouts from a website maintained by plaintiff's counsel.

LAW AND APPLICATION

As a preliminary matter the court will discuss the motion papers and the deficiencies contained therein. A "notice of motion shall specify the time and place of the hearing on the motion, the supporting papers upon which the motion is based, the relief demanded and the grounds therefor. Relief in the alternative or of several different types may be demanded" (CPLR 2214). "The notice of motion will specify the relief the movant is seeking, and . . . also specify the grounds for the relief (Patrick M. Connors, Practice Commentaries C2214:3 Contents of Notice of Motion).

Furthermore, the New York Court Rules (NYCRR) require that "affidavits shall be for a statement of the relevant facts, and briefs shall be for a statement of the relevant law" (see 22 NYCRR 202.8 [c]).

The instant motion contains several defects that violate the CPLR and the NYCRR and create an overall confusing and disorganized set of papers. First, the notice of motion fails to include any provision of law or rule that the movant is seeking relief under. In fact, the first time that the Court is apprized of the defendant moving under CPLR 3211(a)(1), 7501 and 7503 is on page eleven and five, respectively, of the memorandum of law. Second, the notice of motion seeks relief in the alternative, however the affidavit of counsel for the defendants speaks in the conjunctive. Third, the Court is not apprized of whether issue has been joined until the fourth page of the memorandum of law. Fourth, the affidavit of counsel is utilized solely for the admission of documents, it fails to state a procedural or factual history. Moreover, several of the documents annexed to the attorney affirmation are what appear to be parts of a motion brought for the same relief. However, there is no explanation within the attorney's affirmation as to the history of those papers and whether this court made a prior determination as to that motion. Lastly, the papers are not bound together, rather the notice of motion, the affidavit of counsel, the affidavit of Carmen Arguelles and the memorandum are all separate and distinct.

The Court however may disregard these irregularities, defects, mistakes, and omissions, if a substantial right of a party is not prejudiced (CPLR 2001). The Court chooses to disregard the panoply of errors contained within the motion, as the plaintiff has not objected thereto, the law is cited in the memorandum, and the plaintiff has opposed the motion on its merits (see Farkas v. Tarrytown Lumber, Inc., 133 AD2d 251, 253 [2nd Dept 1987]; see also Fletcher v Greiner, 73 AD2d 591 [2nd Dept 1979]). Therefore, the substantive aspect of the law will be addressed.

The Motion to Dismiss the Complaint Pursuant to CPLR 3211(a)(1)

The statute provides that a defendant may move to dismiss a cause of action on the ground that "a defense is founded upon documentary evidence" (CPLR 3211[a][1]). A motion to dismiss a complaint based upon CPLR 3211(a)(1) may be granted "only where the documentary evidence utterly refutes [a] plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goseh v Mutual Life Ins. Co.of NY, 98 NY2d 314, 326 [2002]). The "party [*4]seeking to dismiss pursuant to CPLR 3211(a)(1) must submit documentary evidence that resolves all factual issues as a matter of law and conclusively disposes of the plaintiff's claim'" (Paramount Transp. Systems, Inc. v Lasertone Corp. 76 AD3d 519 [2nd Dept 2010] [internal citations omitted]).

To be considered "documentary," for purposes of a motion to dismiss based on documentary evidence, evidence must be unambiguous and of undisputed authenticity. From the cases that exist, it is clear that judicial records, as well as documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are "essentially undeniable," would qualify as "documentary evidence" in the proper case. If the document does not reflect an out-of-court transaction and is not essentially undeniable it is not documentary evidence within the intendment of CPLR 3211(a)(1) (see Fontanetta v Doe, 73 AD3d 78[2nd Dept 2010]).

The arbitration provision that the movant relies upon is contained within the undated "employment agreement." However, the provision therein does not itself resolve "all factual issues as a matter of law and conclusively dispose of the plaintiff's claim. The document is undated and therefore, the Court cannot determine by the document alone whether it pertains specifically to the time period alleged in the complaint. Therefore, under CPLR 3211(a)(1), the document on its own is insufficient to warrant dismissal of the complaint.

The Motion to Compel Arbitration Pursuant to CPLR 7501 & 7503

The Movant also seeks to stay the action and compel arbitration pursuant to CPLR 7501 and 7503. The effect of an arbitration agreement is provided for in CPLR 7501 which states that:

[a] written agreement to submit any controversy thereafter arising or any existing controversy to arbitration is enforceable without regard to the justiciable character of the controversy and confers jurisdiction on the courts of the state to enforce it and to enter judgment on an award. In determining any matter arising under this article, the court shall not consider whether the claim with respect to which arbitration is sought is tenable, or otherwise pass upon the merits of the dispute (CPLR 7501).

CPLR 7503(a) provides the procedure for a party to compel arbitration.

Application to compel or stay arbitration; stay of action; notice of intention to arbitrate (a) Application to compel arbitration; stay of action. A party aggrieved by the failure of another to arbitrate may apply for an order compelling arbitration. Where there is no substantial question whether a valid agreement was made or complied with, and the claim sought to be arbitrated is not barred by limitation under subdivision (b) of section 7502, the court shall direct the parties to arbitrate. Where any such question is raised, it shall be tried forthwith in said court. If an issue claimed to be arbitrable is involved in an action pending in a court having jurisdiction to hear a motion to compel arbitration, the application shall be made by motion in that action. If the application is granted, the order shall operate to stay a pending or subsequent action, or so much of it as is referable to arbitration (CPLR 7503).

Under a CPLR 7501 analysis the arbitration provision initially seems to compel arbitration between the parties. Even though the document is undated, there is no dispute as to the plaintiff having signed it and that it applies to the time period in dispute. Furthermore, both parties correctly assert that the Federal Arbitration Act (FAA) applies to the instant matter. The [*5]FAA applies to arbitration agreements in all employment contracts, except for transportation workers, that involve interstate commerce (see Circuit City Stores, Inc. v Adams, 532 U.S. 105 [2001], see also Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR C7501:13).Furthermore, the Court is cognizant of arbitration being a creature of contract and the long established policy of this State to interfere as little as possible with the freedom of consenting parties in structuring their arbitration relationship (See Credit Suisse First Boston Corp. v Pitofsky, 4 NY3d 149, 155 [2005] [citation and internal quotation marks omitted]).

However, that policy is not without caveats or scrutiny. It has also been established that [s]o long as the prospective litigant effectively may vindicate [his or her] statutory cause of action in the arbitral forum, the statute will continue to serve both its remedial and deterrent function" (Gilmer v Interstate/Johnson Lane Corp., 500 US 20 at 28, quoting Mitsubishi Motors Corp. v Soler Chrysler-Plymouth, Inc., 473 US 614, 637 [1985]).

It has been further recognized that "the existence of large arbitration costs could preclude a litigant . . . from effectively vindicating her federal statutory rights in the arbitral forum, a result which cuts against the broad public policy in favor of arbitration. The Supreme Court adopted a case-by-case approach by ruling that where . . . a party seeks to invalidate an arbitration agreement on the ground that arbitration would be prohibitively expensive, that party bears the burden of showing the likelihood of incurring [the] costs' that would deter the party from arbitrating the claim" (Green Tree Financial Corp.-Ala. v Randolph, 531 US 79, 91 [2000]). Plaintiff asserts that the costs of arbitration are prohibitively expensive, so that he is estopped from vindicating his rights. In support of this contention plaintiff includes an affidavit of financial hardship which is sufficient to raise an issue of fact as to this matter.

The "issue of a litigant's financial ability is to be resolved on a case-by-case basis and that the inquiry should at minimum consider the following questions: (1) whether the litigant can pay the arbitration fees and costs; (2) what is the expected cost differential between arbitration and litigation in court; and (3) whether the cost differential is so substantial as to deter the bringing of claims in the arbitral forum. . . Although a full hearing is not required in all situations, there should be a written record of the findings pertaining to a litigant's financial ability" (Matter of Brady v Williams Capital Group, L.P., 14 NY3d 459 [2010] [internal citations omitted]).

Therefore, that branch of defendant's application to dismiss the complaint pursuant to CPLR 3211(a)(1) is denied. That part of the defendant's application seeking to compel arbitration of plaintiff's claim is stayed pending a hearing and determination whether plaintiff's financial situation forecloses his rights in an arbitration forum. The parties are directed to appear in Part 52 on July 23, 2013, prepared for a hearing on that issue. Furthermore, the parties are on notice that any and all submissions to the court shall be in compliance with the CPLR and all applicable Court Rules.

The foregoing constitutes the decision and order of this Court.

Enter:

J.S.C.

Enter Forthwith:____________________________ [*6]

J.S.C.