De Sapio v. Kohlmeyer

McGivern, J.

(dissenting). I would reverse on the facts and the law and grant the motion, staying the action against Kohlmeyer based on alleged libel and slander, on the grounds that the plaintiff herein had previously agreed to submit to arbitration any controversy between himself (plaintiff) and Kohlmeyer arising out of his employment by Kohlmeyer or the termination of that employment.

I am unable to appreciate how the instant case can be withdrawn from the umbrella of Matter of Exercycle Corp. (Maratta) (9 N Y 2d 329) reversing the Appellate Division, wherein the Court of Appeals declared: “ Once it be ascertained that the parties broadly agreed to arbitrate a dispute 1 arising out of or in connection with ’ the agreement, it is for the arbitrators to decide what the agreement means and to enforce it according to the rules of law which they deem appropriate in the circumstances.”

Furthermore, the factual situation here is not dissimilar from that found in Matter of Ghiron (Mayr) (19 A D 2d 54) wherein this court held that even when an action in slander had been commenced, based on utterances allegedly made concerning the finances of a Stock Exchange firm, and made to a firm customer, the underlying action should be stayed pending arbitration. This bench held: “While the words spoken are in dispute, it is undisputed that they were spoken by defendant while engaged in his duties as a representative or employee of respondents and in connection with their business. As such, the controversy arises out of the business of the respondents and the employment of petitioner.” Here, the words spoken related to the employment of plaintiff during the period he was an employee of Kohlmeyer, and if it had not been for *80this previous employment the occasion for the allegedly slanderous matter would never have arisen.

- The conclusion of the majority opinion that the agreements with the two stock exchanges terminated with the end of plaintiff’s employment, or 30 days thereafter, represents an over-interpretation of the agreements, and is so without merit that it is not specifically relied upon or even advanced by the respondent. Paragraph k of the New York Stock Exchange agreement merely held the employee amenable to disciplinary strictures 30 days after the termination of his employment; and item 30 of the American Stock Exchange agreement stated that the covenants were equally available to the successors of plaintiff’s employer. The majority overlook the plaintiff’s own statement of .the question: 1. Plaintiff having worked, at one time, for appellants under an agreement which required arbitration of disputes arising out of my employment”. Furthermore, the ultimate interpretation of employment agreements is for the arbitrator. (Matter of Ghiron [Mayr], 19 A D 2d 54; Matter of Exercycle Corp. [Maratta], 9 N Y 2d 329, 334.)

Lastly, this bench was recently reversed in Matter of British Overseas Airways Corp. v. International Assn. of Machinists & Aerospace Workers, AFL-CIO (32 N Y 2d 823) wherein the majority of this court held that the arbitrator had exceeded his authority; the minority view to the contrary. The. Court of Appeals reversed on the dissenting opinion at the Appellate Division, and in this latter opinion we find the following: “ As very recently stated: 1 The very broad limits of arbitrability envisioned in CPLR 7501. as reflected in Matter of Exercycle Corp. (Maratta) (9 N Y 2d 329), forbid any judicial interference with disputes logically connected with the agreement. To say that such dispute must arise literally and directly out of the agreement in order to be arbitrable would be to turn back to a practice of judicial control clearly forsworn in Exercycle. * * * ’ Moreover, if there be any doubt as to whether the particular issue with relation to an employee grievance is embraced within a submission, the doubt should be ‘ “ resolved in favor of coverage ” ’ (Matter of Fitzgerald [Gen. Elec. Co.], 23 A D 2d 288, 290, affd. 19 N Y 2d 325).”

Nunez and Murphy, JJ., concur with Stevens, P. J.; McGivern, J., dissents in an opinion, in which Capozzoli, J., concurs.

Order, Supreme Court, New York County, entered on April 5, 1973, affirmed. Respondent shall recover of appellants $40 costs and disbursements of this appeal.