Robles v. Kortoci

Robles v Kortoci 2024 NY Slip Op 32437(U) July 15, 2024 Supreme Court, Kings County Docket Number: Index No. 525476/2020 Judge: Ingrid Joseph 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: KINGS COUNTY CLERK 07/15/2024 05:03 PM INDEX NO. 525476/2020 NYSCEF DOC. NO. 103 RECEIVED NYSCEF: 07/15/2024

At an lASIAS Term, Term, Part Part 83, ofof the Supreme Supreme Court Court ofof the State State of New York, of New York, held held in and for the.County the County of Kings, at the Courthouse of Kings, Courthouse, , at Adams Adams Street, Street, Brooklyn, Brooklyn, NewNew York, York, on 5'kh. day of the I15-4-h. of ltA\' ~~ (JtAh. ,' 2024.

PRESEN PRESENT: T: HON. INGRID HON. JOSEPH, INGRID JOSEPH, Justice.

Justice. ------------- ----------------------------------------------------------X -----------------------------------------------------------------------)( MARIA MARIA ROBLES, ROBLES, Plaintiff, Plaintiff, Index No.: Index No.: 525476/202 525476/20200 -against- -against- MUSA KORTOCI, PIERRE MUSA KORTOCI, PIERRE ZAZOUR, ZAZOUR, SOLSTICE SOLSTICE DECISION & ORDER DECISION ORDER RESIDENT IAL GROUP, RESIDENTIAL LLC and GROUP, LLC and BOARD BOARD OF MANAGERS OF J CONDOM MANAGERS CONDOMINIUM, INIUM, Defendants Defendants. . ------------- ----------------------------------------------------------X -----------------------------------------------------------------------)( The following The following e-filed papers read e-filed papers read herein: herein: NYSCEF Doc NYSCEF Doc Nos. Nos. Order Order to Show Show Cause/Affi rmation/Memorandum of Cause/Affirmation/Memorandum of Law/Exhibits.

Law/Exhibits.... ... - 90 74, 77 -90 Affirmation Affirmation in Opposition /Memorandum of Opposition/Memorandum of Law/Exhib Law/Exhibits.its........... . . .. . . .. .. .. 91 - 99 Defendants Defendants Pierre Zazour, Solstice Pierre Zazour, Solstice Residential Residential Group, Group, LLC and Board LLC and of Managers Board of Managers of of JJ Condomini um (the Condominium (the "Condo "Condo Defendants Defendants")") move move by order order to show show cause cause for an order order (a) pursuant pursuant to CPLR to CPLR 2201, restoring a stay 2201, restoring stay of of litigation; litigation; (b) pursuant pursuant to CPLR CPLR 2221, 2221, granting granting leave leave to to reargue reargue the order the order dated January 31, 2024 dated January 2024 (the "Order"); "Order"); and and (c) upon upon reargument, reargument, vacating vacating the Order Order and and denying denying Plaintiff Plaintiff Maria Maria Robles' ("Plaintiff' ) motion Robles' ("Plaintiff') (Motion Seq. No.3) motion (Motion No. 3) in its entirety (Mot. Seq. entirety (Mot. Seq.

No. 4). Plaintiff No.4). Plaintiff opposes opposes the motion. motion.

This This matter matter concerns Plaintiff'ss claims concerns Plaintiff cJaims of of discriminat discrimination, ion, harassment, harassment, hostile hostile work work environmen environment,t, and retaliation during and retaliation her employmen during her employment.t. Plaintiff Plaintiffwas was a member ofSEIU member of Local 32BJ SEIU Local 32BJ and was subject and was subject to a collective bargaining agreement collective bargaining agreement (the "CBA") "CBA") which contained a provision which contained provision mandating mandating arbitration. arbitration. The The Condo Defendants moved Condo Defendants moved to compel compel arbitration arbitration pursuant pursuant to CPLR CPLR 7503 7503 (a) (a) and and the Federal Arbitration Act Federal Arbitration (Mot. Seq. No. Act (Mot. 2). By order No.2). order dated dated October 29,2021, October 29, this Court 2021, this Court directed Plaintiff to arbitrate directed Plaintiff her claims arbitrate her claims ap.d stayed the matter and stayed matter until until further further order (NYSCEF Doc order (NYSCEF Doc

No. 27). Thereafter, Thereafter, Plaintiff Plaintiff moved moved to vacate vacate the stay and restore restore the case case to the trial calendar calendar (Mot. Seq. No.3).

No. 3). In her her motion, motion, Plaintiff Plaintiff alleged alleged that that her counsel counsel made made several several attempts attempts to commence commence arbitration. Plaintiff further arbitration. Plaintiff further alleged alleged that there there was was a defect defect in the arbitration arbitration process process since non-pmty Realty Advisory non-party Realty Advisory Board Board on Labor Labor Relations Relations Incorporated Incorporated (the (the "RAB") usurped the "RAB") usurped arbitration process from the arbitration process the Office Office of of the Contract Contract Arbitrator Arbitrator (the "OCA"). "OCA"). In their their opposition, opposition, the Condo Condo Defendants Defendants argued that Plaintiff argued that Plaintiff made made no attempts attempts to speak speak to them them or their their counsel counsel to schedule schedule arbitration. arbitration. The The Condo Defendants further Condo Defendants further asserted asserted that that Plaintiff Plaintiff has has actively actively delayed delayed the matter. By order matter. order dated dated January 2024, this January 31, 2024, this Court Cowt granted granted Plaintiffs Plaintiffs motion motion and and vacated vacated the stay, after finding that after finding Plaintiffs affirmation that Plaintiffs was uncontroverted affirmation was uncontroverted by any sworn sworn fact (NYSCEF (NYSCEF Doc Doc No.51).

No. 51).

Now, the Condo Now, Defendants seek Condo Defendants seek to reinstate reinstate the stay, arguing arguing that that a stay stay is warranted warranted in the interest of equity interest of and fairness. equity and fairness. The Condo Condo Defendants Defendants argue argue that that if if the stay stay is not not lifted, lifted, they they will suffer suffer as a result of unnecessary result of unnecessary litigation litigation while while Plaintiff Plaintiff cannot cannot demonstrate demonstrate prejudice prejudice since since she agreed agreed to arbitration through the CBA arbitration through CBA and will have have an opportunity opportunity to litigate litigate her claims claims through that through that process. process. With respect to their With respect their motion motion seeking seeking to reargue, reargue, the Condo Condo Defendants Defendants argue argue that the Court that overlooked their Court overlooked their opposition, opposition, in which which they they demonstrate demonstrate that that Plaintiff Plaintiff delayed delayed pursuing arbitration, pursuing arbitration, sabotaged arbitration, and refused sabotaged arbitration, refused to cooperate cooperate with with their their counsel. counsel. According According to the Condo Defendants, neither Condo Defendants, neither the RAB RAB nor nor the OCA OCA is involved involved in scheduling scheduling arbitration. arbitration.

Instead, it is the parties' Instead, responsibility to mutually parties' responsibility mutually schedule schedule arbitration. arbitration. Though Though Plaintiff Plaintiff claims claims a defect defect in the arbitration process, the Condo arbitration process, Condo Defendants Defendants argue argue that that Plaintiff Plaintiff failed failed to establish establish that she exhausted exhausted her her ability arbitrate or that ability to arbitrate that she made made any effort effort at all. The The Condo Condo Defendants Defendants further assert further that the Court assert that misapprehended stl::lteand Court misapprehended state and federal federal law, which which show show preference" preference to arbitration. arbitration. In addition, Condo Defendants addition, the Condo Defendants aver aver that that Plaintiff Plaintiff failed failed to specify specify the subsection subsection of CPLR 5015(a) ofCPLR 5015(a) under under which which she was was moving. moving.

In opposition, Plaintiff argues opposition, Plaintiff that the stay should argues that should not not be reinstated reinstated because because Plaintiff Plaintiff demonstrated demonstrated a defect defect in the the arbitration arbitration and/or and/or corruption, corruption, fraud fraud or misconduct misconduct in her her prior prior motion. motion.

Moreover, Plaintiff Moreover, Plaintiff contends. contends that that leave leave to reargue reargue should should be denied denied since since the the Court Court did not not misapprehend, overlook misapprehend, overlook or misapply misapply the relevant relevant facts or the controlling controlling principles principles of oflaw. Plaintiff law. Plaintiff

\.

RAB.)1 The decision decision to grant leave to renew grant leave renew or reargue reargue is at the sound sound discretion discretion of of the court court (see Rodney v New Rodney New York Pyrotechnic Prod.

York Pyrotechnic Prod Co., 112 AD2d AD2d 410, 411 [2d Dept Dept 1985] [internal [internal citation citation omitted]; omitted]; Gold Gold v Gold, Gold, 53 AD3d AD3d 485, 485, 487 [2d Dept Dept 2008]).

2008]). A motion motion for leave leave to reargue "shall reargue "shall be based upon matters based upon matters of of fact fact or law law allegedly allegedly overlooked overlooked or misapprehended misapprehended by the court court in determining prior motion, determining the prior motion, but but shall not include shall not include any matters matters of of fact fact not offered on the prior not offered prior motion" motion" (CPLR (CPLR 2221 [d] [2]). Moreover, Moreover, a motion motion for leave leave to_ to reargue reargue is "not "not designed designed to provide provide an unsuccessful unsuccessful party party with with successjve successive opportunities reargue issues opportunities to reargue issues previously decided, or to previously decided, present arguments present arguments different different from those those originally presented" (McGill originally presented" (McGill v Goldman, Goldman, 261 AD2d AD2d 593, [2d Dept Dept 1999] [internal [internal citations citations omitted]). Accordinglr, the movant omitted]). Accordinglr, movant must demonstrate in must demonstrate what what manner manner the the court, court, in rendering rendering its original original determination, determination, overlooked overlooked or misapprehended misapprehended the relevant facts or law relevant law and and cannot cannot include include facts not not offered offered on the prior prior motion (Anthony J Carter, motion (Anthony DDS, P.e.

P.C. v Carter, Carter, 81 AD3d AD3d 819,820 819,820 [2d Dept Dept 2011]).

2011]). Upon Upon the the court's court's review review of of the merits merits of of the movant's movant's arguments, motion for reargument arguments, the motion reargument is essentially essentially granted granted (see McNamara McNamara v Rockland Cnty. Patrolmen's Rockland Patrolmen 's Benevolent Benevolent Ass Ass 'n., 302 AD2d 'n., Inc., 302 AD2d 435, 435,436 [2d Dept 2003]). Thus, Dept 2003]). Thus, only remaining the only remaining question question is whether whether the Court Court will will adhere adhere to its prior prior determination. determination.

Where there Where there is a collective collective bargaining bargaining agreement, agreement, the employee employee must must "at least attempt "at least attempt to exhaust exhaust exclusive grievance and arbitration exclusive grievance procedures established arbitration procedures established by the the bargaining agreement" bargaining agreement" (Vaca (Vaca v Sipes, Sipes, 386 386 US 171, 184 [1967]; [1967]; Garnes Garilesv v Pritchard Pritchard Indus., Indus., Inc., 2023 US Dist Inc., 2023 LEXIS Dist LEXIS 90350, at *28 [SDNY 90350, May 23, 2023]; [SDNY May 2023]; Spano Spano v Kings Kings Park Park Cent. Sch. Dis!., Dist., 61 AD3d AD3d 666, 670- [2d Dept Dept 2009] 2009] ["Generally, ["Generally, an employee employee covered covered by a collective collective bargaining agreement which bargaining agreement which provides for a grievance provides grievance procedure procedure must must exhaust administrative remedies exhaust administrative remedies prior prior to seeking seeking judicial judicial remedies."]). remedies."]). The The employee employee can can only only seek redress from seek redress from the the court court after after he or or she has has exhausted exhausted the remedies under remedies under the the CBA CBA and is unable unable to vindicate vindicate his or her her rights due to some rights due some action action or inaction inaction by the other party (Puig other party City ~f (Puig v City NY, 2024 of NY, 2024 US Dist Dist LEXIS LEXIS 83166, 83166, at *12 n 6 [SD NY, NY, May 7, 2024, No. 2024, No. 23CV08674 23CV08674 (GHW/SDA)]; Morris v Temco (GHW/SDA)]; Morris Serv. Indus., Temco Servo Indus., 2010 2010 US Dist Dist LEXIS 84885, LEXIS 84885,

I The Condo 1 Defendants filed a reply Condo Defendants reply affirmation without seeking affirmation without seeking leave leave of of Court. "Absent advance Court. "Absent advance permission permission of of the the court, reply court, reply papers papers shall not be submitted shall not orders to show submitted on orders show cause" cause" (Uniform (Uniform Rules Rules for Trial Trial Cts [22 NYCRR] NYCRR] §~ 202.8-d). Accordingly, the 202.8-d). Accordingly, the Court will not Court will not consider consider the Condo Defendants' the Condo Defendants' reply reply papers. papers.

Here, Here, the the Court determined that already determined Court already that the provision in the arbit;ation provision the•··..arbitration was CBA was the CBA enforceable (NYSCEF Doc enforceable (NYSCEF No. 27): Doc No. contends that Plaintiff contends 27)~ Plaintiff begin her arbitration attempted to begin that she attempted arbitration by contacting The OCA OCA. The contacting OCA. OCA then allegedly encouraged then allegedly encouraged her contact Robert her to contact Shwartz, the RobertShwartz, RAB's RAB's attorney. asked about When asked attorney. When about the status arbitration, Mr. Spwartz of the arbitration, status of Shwartz responded that the responded that OCA able to respond should be able OCA should her inquiries. respond to her Plaintiff asserts Thereafter, Plaintiff inquiries. Thereafter, contacted.the that she contacted asserts that the , OCA OCA twice twice and and was told on both was told contact Mr. Shwartz. occasions to contact both occasions Shwartz. In essence, argues · Plaintiff argues essence, Plaintiff that that she made diligent attempts made diligent arbitration; but commence arbitration; attempts to comIIlence the runaround received the but she received the from the runaround from RAB.

OCA and the RAB.

OCA Assuming and the RAB's OCA' s and Assuming OCA's RAB' s responses constituted "obstructionist Plaintiff constituted responses to Plaintiff tactics," "obstructionist tactics," Plaintiff Plaintiff has proffered _evidence to support proffered no ,evidence support that tactics can these tactics that (a) these attributed to the Condo be attributed ~an be Condo Defendants,. there was Defendants,. (b) there defect in the arbitration was a defect arbitration proceedings, the "parties c) the proceedings, or ((c) declined to "parties declined • . . ' . 1 . . • arbitrate." Mr. Shwartz's arbitrate." Shwartz's email directing.Plaintiff email directing Plaintiff to contact OCA is wholly the OCA contact the insufficient to wholly insufficient establish establish that that the the RAB prevented Plaintiff RAB prevented arbitration. It is undisputed from comrne11cing arbitration.

Plaintiff fromcomrnencing that the undisputed that subject arbitration party to the subject RAB is not a party v. U,;ban arbitration (see Samu~ls v. U,:banAm.Mgmt. May 8, 2020 Am. Mgmt. LLC, May 2020 ' ' at 21, col 2, 2020 *6. [Sup Ct, LEXIS 877, *6 NYLJ LEXIS 2020 NYLJ Ct,NY County 2020] NY County 2020] [noting that the RAB [noting that not RAB was not . . . . .

authorized authorized under CBA to appoint under the CBA three contacts Plaintiff _referenced three mediator]). Though Plaintiff!eferenced appoint a mediatorD.Though with contacts with ' ' ' OCA, she failed the OCA, failed to specify the dates.of specify the such contacts. dates'of such Even assuming contacts. Even assuming Plaintiff to· reached out to Plaintiff reached , the the OCA OCA three times and three times emailed Mr. Shwartz and emailed Shwartz once, the Court once, the finds that Court finds these contacts that these hardly contacts hardly . . . .

amount amount to diligent diligent efforts. Like the efforts. Like plaintiff in Samuels, the plaintiff Samuels, Plaintiff failed to "show Plaintiff failed "show that she has that she exhausted alternative exhausted avenues for resolving alternative avenues discrimination claims resolving her discrimination before resorting claims before litigation, resorting to litigation, challenging the OCA's i.e., challenging alleged failure OCA's alieged mediator or moving appoint a mediator failure to appoint compel arbitration" moving to compel arbitration" (id). (id).

hereby Accordingly, it is hereby Accordingly, ORDERED, ORDERED, that the portion that the the Condo of the portion of Defendants'. motion Condo Defendants', reinstate the motion to reinstate this of this the stay of litigation litigation is granted; granted; and further and it is further ./ ORDERED, that ORDERED, portion'ofthe Condo that the portion'ofthe Condo Defendants' motion for leave Defendants' motion reargue is leaveJoto reargue . . . .. . . .

granted; granted; and and upon upon reargument, reargument, this Court's ianuary this Court's 31, 2024 order january 31,2024 and Plaintiffs vacated and order is vacated Plaintiffs motion motion to restore (Mot. Seq. No.3) restore (Mot. denied; and it is further No. 3) is denied; further

ORDERED, ORDERED, that that the the parties parties are directed directed to obtain obtain a list of of arbitrators arbitrators from from the the OCA OCA and select select an arbitrator arbitrator within days of within 30 days Notice of of Notice of Entry Entry ofthis ofthis order. order.

AU All other other issues issues not not addressed addressed herein herein are either either without without merit merit or moot. moot.

This This constitutes constitutes the the decision decision and and order order of of the Court, Court. ., HON.

HON. INGRID INGRID J SEPH, SEPH, J.S.C. J.S.C . ··'.,-' Hon. 1:': ·d-Joseph id Joseph · S~preme Court Justice Supreme Court