87 A.D.2d 561 | N.Y. App. Div. | 1982
Order, Supreme Court, New York County (Shorter, J.), entered May 5,1981, which denied petitioner-appellant’s (“Marben”) motion to punish respondent (“Union”) for contempt and to stay a “second” notice of arbitration and vacate same, modified, on the law, to the extent of granting the stay of arbitration, and otherwise affirmed, without costs. Marben discharged its employee, the superintendent of the subject building. The Union, claiming wrongful discharge, served notice of intention to arbitrate upon Marben, as employer, and notice of hearing was issued by the contract arbitrator. Marben moved to stay arbitration (CPLR 7503, subd [c]) on the ground that no valid agreement to arbitrate existed between the parties. Special Term granted the application, as “Respondent has failed to substantiate its allegation that there is a valid written agreement to arbitrate. No copy of the agreement accompanies respondent’s papers”. The Union sent a second notice to arbitrate to one Benjamin Gruss, a partner in Marben, individually, as the employer, and to David Eisenstein, as agent. On March 19, 1981, the Union served a motion for leave to renew the original motion to stay arbitration, returnable March 30, 1981. On March 20, 1981, Marben obtained an order to show cause, returnable March 25,1981, seeking to adjudge the Union in contempt for its failure to obey a prior stay of arbitration. The Union claimed that, subsequent to the first motion for a stay, it had contacted the “RAB” (the Real Estate Advisory Board on Labor Relations, Inc., a multiemployer bargaining association of the building service industry) and was advised that an “assent list” to the multiemployer apartment building agreement, covering the building in question, contained the names of Eisenstein as agent and Gruss as owner, without reference to Marben. The Union had then issued a new notice of intention to arbitrate, in the name of those individuals. The Union submitted “proof” of Marben’s and/or Gruss’ and Eisenstein’s membership in RAB and assent to the contract is a bare list of real estate managers and buildings, without recital or evidentiary support of any kind as to actual membership in the association and consent to be bound. Marben contended that it wás not a signatory to the current bargaining agreement between the RAB and the Union, although it had been a signatory to a prior