Opinion
105554/06.
Decided July 31, 2006.
Bruce Baron, Esq., BARON ASSOCIATES, P.C. Brooklyn, New York, Attorneys for Plaintiff.
Kathleen M. McKenna, Esq., Adam M. Lupion, Esq., Proskauer Rose LLP, New York, NY, Attorneys for Defendants.
Plaintiff Bianca Nardi filed this Complaint against Defendants Maurice Richard Povich, Donna Benner, Paul Faulhaber, Vincent Fusco, Mopo Productions, Inc. ("MOPO"), and NBC Universal Television, Inc. ("NBCU"), alleging sexual harassment (hostile work environment and quid pro quo), discriminatory retaliation, defamation, and breach of contract, based on events that took place since Plaintiff was hired as a producer on the "Maury" television show. Defendants move for dismissal under C.P.L.R. § 3211 for failure to state a cause of action, contending that the claims in the Complaint are subject to arbitration under a valid arbitration clause in an employment agreement signed by Plaintiff, and for an order compelling Plaintiff to arbitrate her claims. Universal Talk Television, LLC ("UTT") has filed the instant motion on behalf of Defendants. UTT is a wholly-owned subsidiary of Defendant NBCU, which was named in the caption. The four individual defendants work for the "Maury" show at UTT's studios. Defendant MOPO furnishes to UTT the services of Povich as host of the "Maury" show. For the reasons that follow, I grant Defendants' motion to compel arbitration, deny Defendants' motion to dismiss, and order that the action be stayed pending the outcome of arbitration.
For purposes of this motion, Defendants do not contest Plaintiff's factual allegations. The following summary describes the facts as undisputed or alleged by Plaintiff.
In around June 2000, Plaintiff Bianca Nardi was hired as a Production Assistant for the "Maury" show, a syndicated television program produced by UTT. (Compl. ¶ 5.) The "Maury" show is distributed for broadcast in approximately 200 markets around the country. (Yap Aff. ¶ 2.) At the time Nardi was hired, she did not sign an employment agreement. (Nardi Aff. ¶ 3.)
On May 22, 2001, Nardi signed an employment agreement with Studios USA Talk Television ("USA-Talk") — the predecessor of UTT, in connection with her promotion to Associate Producer (the "2001 agreement"). (Nardi Aff. ¶ 4.) Nardi avers that the document she signed contained three pages, ending with a signature page. (Nardi Aff. ¶ 5.) In particular, she avers that she was never given a copy of a document entitled "Exhibit A' Standard Terms and Conditions," (hereafter "Exhibit A"). (Nardi Aff. ¶ 7.)
On July 1, 2003, Nardi signed another employment agreement with UTT, entitled "First Amendment To Associate Producer Agreement" (the "2001 agreement"). The document Nardi signed contained two pages, ending with a signature page. (Nardi Aff. ¶ 10.) Nardi avers that the document she signed contained three pages, ending with a signature page. (Nardi Aff. ¶ 5.) Nardi avers that she was not given a copy of Exhibit A. (Nardi Aff. ¶ 11-13.) Nardi asserts, in fact, that she had never seen or heard of Exhibit A until the filing of this lawsuit. (Nardi Aff. ¶ 16.) An examination of these two documents reveals the following facts:
UTT is the new name for USA-Talk. (Oral Arg. Trans. at 8 (June 23, 2006).)
Defendants have submitted copies of the 2001 agreement and the 2003 agreement. Plaintiff has not disputed that the copies submitted by Defendants are true copies.
The three-page 2001 agreement states in its final paragraph, right above the signatures: " Standard Terms; Compliance with Policies. USA-Talk's Standard Terms and Conditions contained in attached Exhibit A' is incorporated herein by this reference. " (Yap Aff. Ex. A, 2001 Agt. ("2001 Agt.") ¶ 7 (emphasis added).) The 2001 agreement also refers in two other places to Exhibit A. On the first page, under the heading "Employment Term/Options" in paragraph 2, it states that the term of employment is "[s]ubject to Paragraph 1 of Exhibit A.'" (2001 Agt. ¶ 2.) On the second page, both paragraphs 4 and 5 state that compensation and benefits are "subject to Paragraph 2 of Exhibit A.'" (2001 Agt. ¶¶ 4-5.)
The two-page 2003 agreement states in its first sentence that it will "amend your existing executed agreement dated as of May 22, 2001 . . . ("Agreement")." (Yap Aff. Ex. A, 2003 Agt. ("2003 Agt.") at 1.) The final sentence, immediately above the signature line, states: "All other terms and conditions shall be as set forth in the [2001] Agreement. . . ." (2003 Agt. at 2.) The 2003 agreement also explicitly refers to Exhibit A: Under the heading "Employment Term/Options" in paragraph 2, it states that the term is "[s]ubject to Paragraph 1 of Exhibit A.'" ( Id. at 1.)
Defendants have submitted a copy of Exhibit A, which states: "This Exhibit A' is part of the attached Agreement dated May 22, 2001 by and between Studios USA-Talk Television LLC ("USA-Talk") and Bianca Nardi ("as you") and is incorporated therein." (Yap Aff. Ex. A, Ex. A ("Ex. A") at 1.) Paragraph 9 of Exhibit A contains an arbitration clause, which states:
The parties shall use final and binding arbitration to resolve any dispute . . . they may have with each other or any of their affiliated, subsidiary or parent companies with respect to this Agreement. This Paragraph applies to all matters relating to this Agreement, and employment thereunder or termination thereof, including, without limitation, . . . all claims arising out of any alleged discrimination, harassment, retaliation. . . .
(Ex. A ¶ 9(a).) This paragraph further provides that, "[s]hould any party attempt to resolve an Arbitrable Dispute by any method other than Arbitration, the responding party will be entitled to recover from the initiating party all damages, expenses, and attorneys' fees incurred as a result of that breach." ( Id. ¶ 9(d).)
The Complaint alleges that, during the course of her employment, Nardi experienced sexual harassment. Plaintiff alleges that Defendants published pictures of her breasts and used her recorded voice to accompany videotape footage of a penis, and that both the pictures and the recording were shown on television programs and in public bars. (Compl. ¶ 56.)
The Complaint further alleges that Plaintiff was promoted to Producer and promised a pay increase on April 2, 2004. She never received the promised pay increase. (Compl. ¶ 29(f).)
In addition, the Complaint alleges that on or about April 1, 2006, Defendant Faulhaber told Plaintiff that she was to be on "secret" probation. (Compl. ¶ 29(j).) Plaintiff alleges that, around the same time, Defendants posted a large picture of the Plaintiff at the entrance of [NBCU's] television studios/offices, stating underneath that the Plaintiff is not to be allowed in, and if anyone sees her trying to gain entrance immediately notify Fusco." (Compl. ¶ 53.) Plaintiff's Affirmation in Opposition, dated May 30, 2006, states that Nardi "is currently on medical/disability leave."
On April 4, 2006, Plaintiff's attorney notified Defendant Povich that she had claims against Defendants based on sexual harassment and retaliation in violation of federal state, and city discrimination laws. NBCU notified Plaintiff's attorney by letter dated April 14, 2006 that Plaintiff was bound under the agreement to arbitrate her claims, and told him that, if Plaintiff pursued her claims in any forum other than final and binding arbitration, NBCU intended to file a motion to compel arbitration. (Yap Aff. Ex. B.)
The Complaint, filed on April 24, 2006, alleges that the individual Defendants are "officers, directors, supervisors, managers, employees and/or agents of [NBCU and MOPO], and acted within the scope of their duties as officers, directors, supervisors, managers, employees and/or agents for" UTT and MOPO. (Compl. ¶ 11.)
On May 15, 2006, Defendants moved for an order dismissing Plaintiff's Complaint and compelling arbitration pursuant to C.P.L.R. § 3211 and/or the Federal Arbitration Act, 9 U.S.C. §§ 3 and 4. Plaintiff filed an opposition dated May 30, 2006. Oral argument on Defendants' motion took place on June 8, 2006.
It is well-established law that a court, when deciding a motion to dismiss, "must consider the plaintiffs' allegations, asserted in both the complaint and any accompanying affidavits submitted in opposition to the motion, as true and resolve all [factual] inferences which reasonably flow therefrom in favor of the plaintiffs." Joel v. Weber, 166 AD2d 130, 135-36 (1st Dept. 1991) (internal quotations omitted).
The Federal Arbitration Act ("FAA"), 9 U.S.C. §§ 1 et seq., provides in part that "[a] written provision in . . . a contract evidencing a transaction involving commerce to settle by arbitration a controversy thereafter arising out of such contract or transaction . . . shall be valid, irrevocable, and enforceable, save upon such grounds as exist at law or in equity for the revocation of any contract." 9 U.S.C. § 2. "Commerce" is defined to include "commerce among the several States or with foreign nations, or in any Territory of the United States or in the District of Columbia, or between any such Territory and another, or between any such Territory and any State or foreign nation, or between the District of Columbia and any State or Territory or foreign nation." Id. § 1.
The "transaction" at issue is the production by UTT of a nationally broadcast syndicated talk show, and the television industry, as a form of interstate commerce, is regulated by federal law. UTT's business evidently involves "commerce," as defined in § 1 of the FAA. In situations where the FAA applies, "it preempts State law on the subject of the enforceability of arbitration clauses . . . even though the dispute itself may arise under State law." Fletcher v. Kidder, Peabody Co., 81 NY2d 623, 630-31 (1993). Consequently, under § 2, the arbitration provision in Exhibit A, as incorporated into the 2001 and 2003 agreements, is "valid, irrevocable, and enforceable," except if it is revokable under ordinary contract law principles. The parties apparently agree that New York law provides the applicable contract law principles.
Both parties relied on New York caselaw in their memoranda.
Section 4 of the FAA provides that "[a] party aggrieved by the alleged failure, neglect, or refusal of another to arbitrate under a written agreement for arbitration may petition any United States district court [with subject matter jurisdiction] for an order directing that such arbitration proceed in the manner provided for in such agreement." 9 U.S.C. § 4. It provides further that "[t]he court shall hear the parties, and upon being satisfied that the making of the agreement for arbitration or the failure to comply therewith is not in issue, the court shall make an order directing the parties to proceed to arbitration in accordance with the terms of the agreement." Id. (emphasis added). This provision is also binding on state courts. Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 25 (1983) ("the federal courts' jurisdiction to enforce the [FAA] is concurrent with that of the state courts"); GAF Corp. v. Werner, 66 NY2d 97, 104-05 (1985) (approving order to compel arbitration under § 4); Singer v. Jefferies Co., 78 NY2d 76, 81 (1991) (FAA "establishes an emphatic' national policy favoring arbitration which is binding on all courts, State and Federal").
Plaintiff's contention that Defendants' motion is a "thinly veiled" attempt to seek (a) a " de facto declaratory judgment" as to the terms of Plaintiff's employment agreement, or (b) the "functional equivalent" of "summary judgment thereon . . . enforcing the alleged terms" of Plaintiff's employment agreement, without permitting discovery, (Plf. Affirm. Opp'n ¶ 20), is without merit. Defendants proceeded properly in moving for an order to compel arbitration under the FAA, which requires this Court to stay all proceedings and compel arbitration of disputes under certain circumstances.
While the agreement to arbitration is valid and enforceable, I must decide whether it binds all the Defendants. Of the Defendants, only UTT is a signatory to the agreements. MOPO, which contracted to provide Povich's services, is covered under ¶ 9(a) as an "affiliated" company. (Ex. A ¶ 9(a).) Defendants contend that the individual Defendants can enforce the agreement to arbitrate as employees and/or agents of UTT, even though they were not signatories to the agreement. Indeed, Plaintiff has alleged that all four individual Defendants are "officers, directors, supervisors, managers, employees and/or agents" of NBCU or MOPO and "acted within the scope of their duties." (Compl. ¶ 11.)
"[I]t is not the case that an obligation to arbitrate attaches only to one who has personally signed the written arbitration provision.'" Denney v. BDO Seidman, L.L.P., 412 F.3d 58, 70 (2d Cir. 2005) (quoting Thomson-CSF, S.A. v. Am. Arb. Assn., 64 F.3d 773, 776 (2d Cir. 1995) (emphasis in original). "[C]ourts have consistently afforded agents the benefit of arbitration agreements entered into by their principals to the extent that the alleged misconduct relates to their behavior as officers or directors or in their capacities as agents of the corporation." Hirschfeld Prods., Inc. v. Mirvish, 88 NY2d 1054, 1056 (1996) (individual defendants as officers and owners of entities that were signatories to arbitration agreement could compel arbitration of action alleging misconduct in their official capacities).
In reaching this conclusion in Hirschfeld, the Court of Appeals relied on the Second Circuit's decision in Roby v. Corp. of Lloyd's, 996 F.2d 1353 (2d Cir. 1993), cert. denied, 510 U.S. 945 (1993), in which the Court held that the individual chairs of entities, which were agents of plaintiffs and managing agents of syndicates in which plaintiffs were investors, though they were not signatories to their employers' agreements, were nonetheless "entitled to rely on [arbitration] clauses incorporated into their employers' agreements." Id. at 1360. The Court in Roby noted: "Courts in this and other circuits consistently have held that employees or disclosed agents of an entity that is a party to an arbitration agreement are protected by that agreement." Id. See, e.g., Elwell v. Google, Inc., 2006 WL 217978, *4 (S.D.NY Jan 30, 2006) (extending "benefit" of arbitration clause to vice president of corporation sued for employment discrimination, retaliation, and tort claims); Creative Secs. Corp. v. Bear Stearns Co., 671 F. Supp. 961, 968 n. 11 (S.D.NY 1987), aff'd, 847 F.2d 834 (2d Cir. 1988) (individual defendants were "considered parties" to arbitration agreement, although they were nonsignatories, where claims against them arose "solely out of their activities as employees" of corporate defendant); see also DiBello v. Salkowitz, 4 AD3d 230, 232 (1st Dept. 2004) (compelling arbitration of former radio announcer's employment claims against radio station manager under FAA, "as an agent" of corporate defendant, the radio station owner, although manager did not sign arbitration agreement).
Following these decisions, I conclude that the individual Defendants, as alleged "agents" of UTT, must be considered parties to the agreements for purposes of arbitration.
Because the FAA "strongly favors arbitration, any ambiguities as to the scope" of an arbitration provision governed by the FAA "would be properly resolved in favor of arbitration." PricewaterhouseCoopers LLP v. Rutlen, 284 AD2d 200, 200 (1st Dept. 2001) (plaintiff's Title VII claims were arbitrable under "broad and unambiguous arbitration provision"). When a "contract contains an arbitration clause, there is a presumption of arbitrability." Therefore, a motion to arbitrate a particular grievance "should not be denied unless it may be said with positive assurance that the arbitration clause is not susceptible of an interpretation that covers the asserted dispute. Doubts should be resolved in favor of coverage.'" AT T Techs., Inc. v. Communs. Workers of Am., 475 U.S. 643, 650 (1986) (quoting United Steelworkers of Am. v. Warrior Gulf Nav. Co., 363 U.S. 574, 582-83 (1960)).
The Complaint alleges seven causes of action for sexual harassment (hostile work environment and quid pro quo), discriminatory retaliation, defamation, and breach of contract. The arbitration provision at issue states that it "applies to all matters relating to this Agreement, and employment thereunder or termination thereof, including, without limitation, . . . all claims arising out of any alleged discrimination, harassment, [and] retaliation." (Ex. A ¶ 9(a).) Thus, by its express terms, the arbitration agreement applies to Plaintiff's sexual harassment and retaliation claims in Counts I, II, III, IV, and VI. I must analyze the allegations of the remaining two counts (alleging defamation and breach of contract) in order to decide whether they are included in "all matters relating to this Agreement, and employment thereunder or termination thereof."
The Complaint contains seven Counts, but they are mislabeled Counts I, II, III, IV, VI, VI, and VII. That is, "Count V" is missing, and "Count VI" appears twice. To reduce confusion, I will refer to the first "Count VI" as "Count V."
Count V for defamation contains two major allegations. First, Plaintiff contends that, since April 1, 2006, Defendants have had "posted a large picture of the Plaintiff at the entrance of [NBCU's] television studios/offices, stating underneath that the Plaintiff is not to be allowed in, and if anyone sees her trying to gain entrance immediately notify Fusco." (Compl. ¶ 53.) Second, Plaintiff contends that Defendants published pictures of her breasts and used her recorded voice to accompany videotape footage of a penis, and that both the pictures and the recording were shown on television programs and in public bars. (Compl. ¶ 56.)
The first defamation allegation suggests that Plaintiff is no longer employed by UTT, since she is not free to enter the studio. According to Plaintiff's opposition papers, however, Plaintiff is still employed as a Producer on the "Maury" show, though on disability leave. Nardi's affidavit does not describe her current employment status. In either case, this allegation "relat[es] to" Nardi's employment. See Flanagan v. Prudential-Bache Secs., Inc., 67 NY2d 500, 504 (1986), cert. denied, 479 U.S. 931 (1986) (granting motion to compel arbitration of defamation claims based on statements made on day of plaintiffs' resignation and after termination of plaintiffs' employment, under broad arbitration clause calling for arbitration of claims "respecting any matter contained in" plaintiff's employment agreement).
With regard to the second defamation allegation: the Complaint appears to allege that both the photographs and the voice recording were used primarily on the "Maury" show and at a "wrap party" for members of the production staff of the "Maury" show. (Compl. ¶¶ 23-24, 29.) Consequently, these allegations also "relat[e] to" Plaintiff's employment; the fact that Defendant Faulhaber or other Defendants "may have acted improperly . . . does not detract from the fact that [they were] acting on defendant's business" when they so acted. Flanagan 67 NY2d at 509.
In Count VII for breach of contract, Plaintiff alleges that Plaintiff was promoted to Producer but never given the pay increase that was promised her during her employment. (Compl. ¶ 63; see also Compl. ¶ 29(f).) This allegation "relat[es] to" Nardi's employment under the agreement. Consequently, Counts V and VII fall within the scope of the arbitration provision.
Plaintiff contends, however, that Defendants have not met their burden of proof that Plaintiff entered into any agreement containing Exhibit A, such as by providing an affidavit from a person with personal knowledge or other evidence that "said "Exhibit A,'" inclusive of the arbitration clause purportedly contained therein, was ever contained within the employment offers communicated to the plaintiff on May 22, 2001 or July 1, 2003." (Plf. Affirm. Opp'n ¶ 49 [emphasis in original].) This contention misstates both the standard of review on a motion to dismiss and Defendants' arguments.
A court, when deciding a motion to dismiss, "must consider the plaintiffs' allegations, asserted in both the complaint and any accompanying affidavits submitted in opposition to the motion, as true and resolve all [factual] inferences which reasonably flow therefrom in favor of the plaintiffs." Joel, 166 AD2d at 135-36. Nevertheless, a court is not required or even permitted to draw its legal conclusions in favor of the plaintiff; it is required to apply the law even-handedly.
For purposes of this motion, Defendants do not contest Plaintiff's assertion that Nardi never received a copy of Exhibit A, never executed or otherwise agreed to Exhibit A, and never discussed the terms of Exhibit A with Defendants. (Oral Arg. Trans. at 26 ("[W]e are here on a motion to dismiss and we have assumed her representation that she never saw it and she never got it.").) Defendants contend, nonetheless, that Plaintiff is bound by the terms of Exhibit A as a matter of law.
It is a longstanding principle of New York contract law that "[h]e who signs or accepts a written contract, in the absence of fraud or other wrongful act on the part of another contracting party, is conclusively presumed to know its contents and to assent to them." Level Export Corp. v. Wolz, Aiken Co., 305 NY 82, 87 (1953) (buyer bound by standard terms incorporated by reference into executed agreement, although it had never seen or received a copy of those terms and was unaware of any arbitration provision); accord Baldeo v. Darden Restaurants, Inc., 2005 WL 44703, *4 (E.D.NY Jan 11, 2005) (granting motion to compel arbitration of employment-related claims, where employee signed dispute resolution brochure, which incorporated "a brief reference" to a more comprehensive handbook, containing arbitration provision, applying FAA and New York law). See also Liberty Mgt. Constr. Ltd. v. Fifth Ave. Sixty-Sixth St. Corp., 208 AD2d 73, 77-78 (1st Dept. 1995) (arbitration clause in "General Conditions" document, which was incorporated by reference into contract, was enforceable against contractor).
Plaintiff has not alleged fraud or other wrongful conduct by Defendants in the signing of the 2001 or 2003 agreements. Moreover, Plaintiff does not dispute that Nardi signed the 2001 and 2003 agreements; her signature appears on page 2 of the 2003 agreement and on page 3 of the 2001 agreement. (Oral Arg. Trans. at 31.)
Nevertheless, even if Plaintiff did not receive Exhibit A, it was her responsibility to ensure that she understood the document that she signed. See Gold v. Deutsche Aktiengesellschaft, 365 F.3d 144, 146-49 (2d Cir. 2004), cert. denied, 543 U.S. 874 (2004) (burden was on employee to ask clarifying questions before signing form containing arbitration provision, which incorporated by reference the Code of Arbitration Procedure of National Association of Securities Dealers). Both the 2001 agreement and the 2003 amendment, each of which is only 2-3 pages long, incorporate Exhibit A by reference more than once. ( See Plf. Affirm. Opp'n ¶ 50.) It appears that Nardi had a "genuine opportunity" to inquire about and read Exhibit A, St. John's Episcopal Hospital v. McAdoo, 405 NYS2d 935, 937 [ 94 Misc 2d 967] (City Civ. Ct. 1978), and the presence of an arbitration clause in an employment agreement should come as no surprise. But cf. St. John's, 405 NYS2d at 937 (excusing contractual obligation to pay estranged wife's hospital bill, where defendant signed agreement in hospital emergency room awaiting her emergency surgery, and paragraph of agreement in question bore misleading heading). Consequently, under the contract principles discussed above, Plaintiff is contractually bound by the arbitration provision in Exhibit A.
Plaintiff's contention that the submission of Exhibit A is an improper use of parol evidence is incorrect under Level Export and Baldeo. In both decisions, the courts enforced arbitration provisions contained in documents incorporated by reference into the signed agreement. Similarly, the 2003 agreement incorporates by reference both the 2001 agreement and Exhibit A, and the 2001 agreement incorporates Exhibit A.
The decisions cited by Plaintiff do not compel a different result because they were based on different factual circumstances. Cf. Brennan v. Bally Total Fitness, 153 F. Supp. 2d 408, 415-16 (S.D.NY 2001) (plaintiff not bound to arbitration clause in modified version of agreement that she never signed); Massaro Elec. Co. v. CMG-Construction Management Group, 180 Misc 2d 352, 353-54 (Dist.Ct. 1999) (refusing to compel arbitration under New York law, where alleged agreement was unsigned and did not either contain or incorporate by reference any document containing arbitration clause). In contrast to Massaro, the executed 2001 and 2003 agreements expressly referred to Exhibit A, which contained the arbitration clause. Moreover, unlike Brennan, here it is undisputed that the arbitration clause was part of Exhibit A, which was expressly incorporated into the executed agreements.
Massaro, in any case, was not decided under the FAA.
Alternatively, Plaintiff asks the Court to "relax" the general rule for Nardi, because, dazed by the "heady prospect" of working at NBC for the "Maury" show at the age of 21, she was unable to "exhibit the requisite calm and dispassionate judgment necessary to decipher the cryptic reference" to Exhibit A in the 2001 agreement and therefore should not be bound to the contract that she signed. (Plf. Affirm. Opp'n ¶ 55-57.) Plaintiff appears to be lobbying for an exception to the general rule based on the principle that recent college graduates at least those graduates whose first job is to work for a nationally syndicated television show cannot be expected to read and understand their employment contracts. I cannot agree with this principle and decline to adopt this exception. I find that Nardi's circumstances are not so compelling as to warrant a departure from the general rule.
At oral argument, Plaintiff's counsel further argued: [M]y client . . . was a 21 year old college graduate, who had never held an employment position prior to this, and who came into this heady experience of going to work for a nationally syndicated television show. . . . [W]e have an inexperienced 21 year old college graduate who is in a situation where for her first job she is being offered a job for a nationally syndicated television show. I believe that similar to the Saint John's case it would be appropriate to relax the standard, under these circumstances. (Oral Arg. Trans. at 19.)
Plaintiff's remaining arguments do not warrant further discussion. Because all the claims in the Complaint must be submitted to arbitration, this action shall be stayed pending the outcome of arbitration, pursuant to section 3 of the FAA.
Plaintiff's argument that the motion to dismiss was procedurally improper, because Defendants failed to delineate the subsection of C.P.L.R. § 3211 under which they have brought it, requires little discussion. Defendants sought dismissal on the well-known ground that "the complaint fails to state a cause of action." (Defs' Memo. Law at 1.) As Plaintiff has deduced, (Plf. Affirm. Opp'n ¶¶ 14-15), this ground for dismissal corresponds to C.P.L.R. § 3211(a)(7). The subsection of the C.P.L.R. was apparent and Plaintiff was evidently not prejudiced by the omission. Plaintiff's further contention that the 2001 agreement, including Exhibit A, cannot be incorporated into the 2003 agreement, because the 2001 agreement is between Nardi and USA-Talk, and the 2003 agreement is between Nardi and UTT, also requires little discussion. (Plf. Affirm. Opp'n ¶ 66.) The first sentence of the 2003 agreement plainly states that UTT was "formerly known as" USA-Talk" the same entity with which Plaintiff entered into the 2001 agreement. Therefore, the same entity was party to both agreements.
Section 3 provides: If any suit or proceeding be brought in any of the courts of the United States upon any issue referable to arbitration under an agreement in writing for such arbitration, the court in which such suit is pending, upon being satisfied that the issue involved in such suit or proceeding is referable to arbitration under such an agreement, shall on application of one of the parties stay the trial of the action until such arbitration has been had in accordance with the terms of the agreement, providing the applicant for the stay is not in default in proceeding with such arbitration. 9 U.S.C. § 3. Section 3 is "equally applicable in State as well as Federal court." Salvano v. Merrill Lynch, Pierce, Fenner Smith, Inc., 85 NY2d 173, 184 (1995).
Accordingly, it is
ORDERED that Plaintiff shall arbitrate her claims in accordance with the terms of Exhibit A, as incorporated by reference into the 2001 and 2003 agreements; and it is further
ORDERED that the action is STAYED pending the outcome of arbitration; and it is further
ORDERED that Defendants' request for attorneys' fees and costs is DENIED.