Bragg v Skyline P.C.

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Bragg v Skyline P.C. 2020 NY Slip Op 34133(U) December 10, 2020 Supreme Court, New York County Docket Number: 652482/2020 Judge: Debra A. James Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: 1] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 652482/2020 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/11/2020 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON. DEBRA A. JAMES PART IAS MOTION 59EFM Justice ---------------------------------------------------------------------------X INDEX NO. KYLE BRAGG, AS TRUSTEE AND THE TRUSTEES OF THE BUILDING SERVICE 32BJ HEALTH FUND, BUILDING SERVICE 32BJ PENSION FUND, THOMAS SHORTMAN TRAINING & SCHOLARSHIP FUND, BUILDING SERVICE 32BJ LEGAL FUND AND THE BUILDING, SERVICE 32BJ SUPPLEMENTAL RETIREMENT AND SAVING FUND 652482/2020 MOTION DATE 07 /21 /2020 MOTION SEQ. NO. 001 Petitioners, DECISION + ORDER ON MOTION -vSKYLINE PROFESSIONAL CORP., Respondent. -------------------------------------------------------------------------X The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8 were read on this motion to/for CONFIRM/DISAPPROVE AWARD/REPORT ORDER Upon the foregoing documents, it is ORDERED and ADJUDGED that the petition is granted, on default, and the award rendered in favor of petitioner and against respondent is confirmed; and it is further ADJUDGED that petitioners Kyle Bragg, as Trustee and the Trustees of the Building Service 32BJ Health Fund, Building Service 32BJ Pension Fund, Thomas Shortman Training & Scholarship Fund, Building Service 32BJ Legal Fund and the Building Service 32BJ ) Supplemental Retirement and Saving do Professional Corp., recover Fund, from having an address respondent Skyline having an address at 65248212020 KYLE BRAGG, AS TRUSTEE AND vs. SKYLINE PROFESSIONAL CORP. Motion No. 001 1 of 6 at Page 1 of6 [*FILED: 2] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM NYSCEF DOC. NO. 9 INDEX NO. 652482/2020 RECEIVED NYSCEF: 12/11/2020 the amount of $ $75,402.99, plus interest at the rate of 9% per annum from the date of January 10, 2020, as computed by the Clerk in the amount of $ together disbursements in the amount of $ Clerk, for the total amount with costs and as taxed by the of $ and that the petitioner have execution therefor. DECISION In this proceeding brought under CPLR 7510, petitioners Kyle Bragg, as Trustee and the Trustees of the Building Service 32BJ Health Fund, Building Service 32BJ Pension ,Fund, Thomas Shortman Training & Scholarship Fund, Building Service 32BJ Legal Fund and the Building Service 32BJ Supplemental Retirement and Saving Fund seek to confirm an arbitration award against respondent Skyline Professional Corp. Background Respondent is in the business of providing window cleaning services at residential and commercial properties (NYSCEF Doc No. 1, petition ' 1). Respondent is a party to a collective bargaining agreement with (CBA) International Union union Local (the Union) (id., 32BJ, ' 2). Service Employees The CBA obligates respondent to make certain contributions to jointly administered employee benefit funds, including the Building Service 32BJ Health Fund, the Building Service 32BJ Pension Fund, the Thomas Shortman Training & Scholarship Fund, the Building Service 32BJ Legal Fund, 652482/2020 KYLE BRAGG, AS TRUSTEE AND vs. SKYLINE PROFESSIONAL CORP. Motion No. 001 2 of 6 Page 2 of6 [*FILED: 3] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM NYSCEF DOC. NO. 9 INDEX NO. 652482/2020 RECEIVED NYSCEF: 12/11/2020 and the Building Service 32BJ Supplemental Retirement and Saving (id., !! 3-4). Fund (collectively, the Funds) Respondent executed the CBA on July 7, 2016 (NYSCEF Doc No. 2, petition, exhibit A at 32). When a dispute arose over respondent's failure to make timely contributions to the Funds, petitioners brought the dispute to an arbitrator, in accordance with Section 12, entitled "Disputes and Arbitration," of the CBA (NYSCEF Doc No. 1, !! 3-5). (B) Section 12 (1) provides, in part, that "[t]here shall at all times be a Contract Arbitrator to decide all differences arising between the parties as to interpretation, application or performance of any part of this Agreement and such other issues as the parties are expressly required to arbitrate before him under the terms of this Agreement" (NYSCEF Doc No. 2 at 11). In addition, Section 12 (B) (6) reads, in part, as follows: "Should either party fail to abide by an arbitration award within two (2) weeks after such award is sent by registered or certified mail to the parties, either party may, in its sole and absolute discretion, take any action' necessary to secure such award, including, but not limited to, suits at law" (id.). The CBA designated the Office of the Contract Arbitrator- Building Service Industry as the "Contract Arbitrator" for all disputes (id. at 12). An arbitration hearing was held on December 18, 2019 before arbitrator Gary Kendellen (Kendellen) at the Office of the Contract 652482/2020 KYLE BRAGG, AS TRUSTEE AND vs. SKYLINE PROFESSIONAL CORP. Motion No. 001 3 of 6 Page 3 of6 [*FILED: 4] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 652482/2020 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/11/2020 Arbitrator (NYSCEF Doc No. 3, exhibit at 1). 2020 granting an arbitration award in favor of the Funds for $75,402.99 (id. at 1-2). Kendellen also noted that, in the event respondent failed to comply with the award, could B Kendellen issued a decision dated Respondent did not attend (id.). January 10, petition, recover their attorneys' fees and costs in the Funds any legal proceedings commenced by the Funds to confirm any portion of the award at 1). (id. The Office of the Contract Arbitrator mailed the arbitration award by certified mail to respondent (NYSCEF Doc No. 1, ':II 8). When respondent petitioners failed commenced this to pay any portion proceeding on of June the award, 15, 2020. Petitioners now move for a default judgment against respondent. Submitted on the motion is the petition, the CBA and Kendellen's decision, and an affidavit from David Murphy (Murphy), the Critical Issues Administrator for the Funds. Respondent has not submitted any opposition. Discussion A court's authority to review an arbitration award is limited . . (see Matter of Steyn v CRTV, LLC, 175 AD3d 1, 7 [1st Dept 2019]). Generally, an arbitrator's award will not be overturned in the absence of fraud, corruption or other misconduct (see Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996)). To that end, CPLR 7510 provides that "[t]he court shall confirm an 65248212020 KYLE BRAGG, AS TRUSTEE ANO vs. SKYLINE PROFESSIONAL CORP. Motion No. 001 4 of 6 Page 4of6 [*FILED: 5] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM INDEX NO. 652482/2020 NYSCEF DOC. NO. 9 RECEIVED NYSCEF: 12/11/2020 award upon application of a party made within one year after its delivery to him, unless the award is vacated or modified upon a ground specified in section 7511." As an initial matter, the court finds that service of the petition upon respondent was proper. The affidavit of service shows that petitioner served the notice of petition upon respondent by certified mail to respondent's last known address at 307 East 44th Street, Suite 1102, New York, New York 10017 (NYSCEF Doc No. 8 at 1). Generally, "[a]bsent an agreement to the contrary, the simple mailing of a notice of pet ion and petition by ordinary mail is not a method of service authorized by the CPLR for the commencement of a proceeding pursuant to CPLR article 75" of New York Merchants Protective Co. v Mirna's Kitchen, AD3d 796, 797 here, [2d Dept 2014]; see CPLR 403 [c]). Section 12 (B) (5) of the CBA states Matter Inc., 114 As is relevant that "[i]n any proceeding to confirm an award, service may be made by registered or certified mail within or without the State of New York as the case may be" (NYSCEF Doc No. 2 at 11). Thus, respondent consented to service by registered or certified mail as the designated method of service for the · petition. The method of service by which parties have agreed to be bound must be complied with according to the exact terms thereof in order that the requirements process be satisfied" (Matter of Republique Francaise of due (Cellosilk Mfg. Co.), 309 NY 269, 279 [1955), rearg denied 309 NY 803 [1955)). 65248212020 KYLE BRAGG, AS TRUSTEE AND vs. SKYLINE PROFESSIONAL CORP. Motion No. 001 5 of 6 Page 5 of 6 [*FILED: 6] NEW YORK COUNTY CLERK 12/11/2020 10:56 AM NYSCEF DOC. NO. 9 Petitioner INDEX NO. 652482/2020 RECEIVED NYSCEF: 12/11/2020 has demonstrated that service by mail was properly effectuated (see Matter of New York Merchants Protective Co., 114 AD3d at 797). Petitioner has also demonstrated the merits of the claim. relies on an affidavit from David Murphy Issues Administrator for the Funds. information and belief, the Off ice (Murphy), the Critical Murphy attests that, of the It upon Contract Arbitrator mailed respondent a copy of the original award on or about January 10, 2020 (NYSCEF Doc No. 4, Murphy aff, that upon his review of petitioner's ~ 4). records He further attests and files at the Union's office, the amount awarded to petitioners remains due and unpaid (id., ~~ 7-8) The present application was made within one year of the date of the award, and there is no indication that respondent has moved to vacate or modify .the award on any of the grounds set forth in CPLR 7511. 12/10/2020 DATE CHECK ONE: CASE DISPOSED GRANTED D DENIED APPLICATION: SETTLE ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN 65248212020 KYLE BRAGG, AS TRUSTEE AND vs. SKYLINE PROFESSIONAL CORP. Motion No. 001 6 of 6 D D OTHER REFERENCE Page 6 of 6

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