Kane, Jr. et al v. National Farm Wholesale Fruit & Vegetable Corp.

Filing 22

ORDER: Accordingly, the June 21, 2018 Arbitration Award of Arbitrator La Manna dismissing the arbitration proceedings is confirmed, and Plaintiffs motion to confirm the Award, (Doc. 17), is GRANTED. Furthermore, in light of the foregoing, Plainti ffs request that I lift the stay in this matter is GRANTED and this action is restored to my active docket. Within twenty-one days of the date of this Order, the parties shall jointly submit to the Court a revised proposed case management plan and scheduling order. A template for the order is available at http://nysd.uscourts.gov/judge/Broderick. SO ORDERED. (Signed by Judge Vernon S. Broderick on 4/12/2019) (anc)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
DANIEL KANE, JR., et al.,
:
:
Plaintiffs,
:
:
- against :
:
:
NATIONAL FARM WHOLESALE FRUIT :
:
& VEGETABLE CORP.,
:
Defendant. :
:
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4/12/2019

17-CV-9487 (VSB)
ORDER

VERNON S. BRODERICK, United States District Judge:
Plaintiffs Daniel Krane, Jr., Charles Machadio, Roger Marino, Myra Gordon, Andrew
Roy, and Vincent Pacifico, as Trustees of the United Teamster Fund and as Trustees of the
United Teamster Pension Fund “A” (collectively, “Plaintiffs”), commenced this action on
December 4, 2017 seeking: (1) injunctive and other equitable relief pursuant to the Employee
Retirement Income Securities Act of 1974 (“ERISA”) directing Defendant National Farm
Wholesale Fruit & Vegetable Corp. (“National Farm”) to allow Plaintiffs’ auditors to conduct an
audit of National Farm’s books and records; and (2) recovery of unpaid partial withdrawal
liability assessed pursuant to the Multiemployer Pension Plan Amendments Act of 1980, 29
U.S.C. §§ 1381, et seq. (Doc. 1.) Before me is Plaintiffs’ motion seeking confirmation of the
June 21, 2018 decision of Arbitrator Judith La Manna granting Plaintiffs’ motion to dismiss the
arbitration (the “Award”), and seeking restoration of this action to my active docket. (Doc. 17.)
Because Defendant has not objected to the motion, and because I find that the Award was not
procured through fraud or dishonesty or any other improper means, Plaintiffs’ motion is granted.

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Factual and Procedural Background
On December 4, 2017, Plaintiffs commenced this action by filing a complaint. (See Doc.
1; see also Braverman Aff. ¶ 3.) 1 On January 26, 2018, National Farm filed its answer in which
it asserted as an affirmative defense that it had filed a demand for arbitration with the American
Arbitration Association (“AAA”) and, as such, this dispute should be heard by the AAA. (See
Doc. 10; see also Braverman Aff. ¶ 4.) The parties agreed that the issue of arbitrability should
be heard by an arbitrator. (Braverman Aff. ¶ 6.) On April 20, 2018, the parties participated in an
initial conference call with Arbitrator La Manna during which Plaintiffs informed the arbitrator
that they intended to file a motion to dismiss the arbitration based on National Farm’s purported
failure to timely initiate arbitration. (Id. ¶ 7.) On April 20, 2018, the parties also attended an
initial conference before me and made a joint application to stay this action pending the decision
from Arbitrator La Manna on Plaintiffs’ motion to dismiss the arbitration, (id. ¶ 8), which I
granted, (Doc. 15).
On May 11, 2018, Plaintiffs submitted a Memorandum of Law in Support of their motion
to dismiss the arbitration to Arbitrator La Manna, (Braverman Aff. ¶ 10), on June 1 National
Farm submitted its memorandum of law in opposition, (id. ¶ 11), and on June 15 Plaintiffs
submitted their reply, (id. ¶ 12).
On June 21, 2018, Arbitrator La Manna issued a decision granting Plaintiffs’ motion to
dismiss the arbitration on the grounds that National Farm had failed to timely initiate arbitration
pursuant to ERISA and that the matter was not properly in arbitration. (Id. ¶ 13; see also id. Ex.
A.)
On June 25, 2018, the parties submitted a joint letter informing me of Arbitrator La

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“Braverman Aff.” refers to the Affirmation of Marc D. Braverman, Esq. in Support of Plaintiffs’ Motion to
Confirm Arbitration Award. (Doc. 18.)

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Manna’s decision dismissing the arbitration. (Doc. 16.) On July 19, 2018, Plaintiffs filed their
motion to confirm the Award, along with a memorandum of law and affirmation in support.
(Docs. 17–19.) On August 2, 2018, the parties submitted a joint stipulation extending the time
for Defendant to respond to the motion, (Doc. 20), which I so ordered, (Doc. 21). However,
Defendant did not file an opposition to the motion nor has Defendant taken any other action
since that date.
Analysis
The Court of Appeals for the Second Circuit has instructed that unopposed actions to
confirm or vacate an arbitration award should be treated as unopposed motions for summary
judgment. D.H. Blair & Co. v. Gottdiener, 462 F.3d 95, 109–10 (2d Cir. 2006); accord Trs. of
the N.Y.C. Dist. Council of Carpenters Pension Fund v. Coastal Envtl. Grp., Inc., 16-cv-6004GHW, 2016 WL 7335672 at *3 (S.D.N.Y. Dec. 16, 2016); GE Transportation (Shenyang) Co. v.
A-Power Energy Generation Sys., Ltd., 15 Civ. 6194 (PAE), 2016 WL 3525358 at *4 (S.D.N.Y.
June 22, 2016); Trs. for The Mason Tenders Dist. Council Welfare Fund v. Earth Constr. Corp.,
15-CV-3967 (RA), 2016 WL 1064625 at *3 (S.D.N.Y. Mar. 15, 2016). Accordingly, the issue to
be resolved here is whether, based on the uncontested submissions before me, there is a genuine
issue of material fact. In doing so, I must view the facts “in the light most favorable” to National
Farm, Tolan v. Cotton, 572 U.S. 650, 657 (2014) (internal quotation marks omitted), and
“resolve all ambiguities and draw all permissible factual inferences in favor of” National Farm,
Johnson v. Killian, 680 F.3d 234, 236 (2d Cir. 2012) (internal quotation marks omitted).
“A court’s review of an arbitration award is ‘severely limited’ so as not to frustrate the
goals of arbitration—namely to settle disputes efficiently and avoid long and expensive
litigation.” Trs. of Empire State Carpenters Annuity, Apprenticeship, Labor-Mgmt. Cooperation,

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Pension & Welfare Funds v. LLF Constr. Servs., Inc., No. CV 14-0878(ADS)(SIL), 2014 WL
7739326 at *4 (E.D.N.Y. Dec. 18, 2014), report and recommendation adopted, 2015 WL
428085 (E.D.N.Y. Jan. 30, 2015). The Federal Arbitration Act (“FAA”) provides that “at any
time within one year after the award is made any party to the arbitration may apply to the court
. . . for an order confirming the award, and thereupon the court must grant such an order unless
the award is vacated, modified, or corrected.” 9 U.S.C. § 9. The FAA further provides that the
court may vacate or modify the arbitration award only if: (1) the award was procured by
corruption, fraud or undue means; (2) there was partiality or corruption on the part of the
arbitrator; (3) the arbitrator was guilty of misconduct; (4) the arbitrator exceeded her powers; (5)
there were evident material miscalculations or mistakes made in the calculation of the award; (6)
the arbitrator issued an award on a matter that was not submitted to her; or (7) the award was
imperfect as a matter of form. See 9 U.S.C. §§ l0(a)(1)-(4); 11(a)-(c).
Because I find that none of the above listed factors are present here, I conclude that the
arbitration award should be confirmed. See Local 97, Int’l Bhd. of Elec. Workers v. Niagara
Mohawk Power Corp., 196 F.3d 117, 124 (2d Cir. 1999) (“Generally speaking, unless the
[arbitration] award is procured through fraud or dishonesty, the decision should not be
disturbed.”); Trs. of N.Y.C. Dist. Council of Carpenters Pension Fund, Welfare Fund, Annuity
Fund, and Apprenticeship, Journeyman Retraining, Educational and Industry Fund v. Windham
Constr. Corp., 17-cv-4630 (VSB) (SDA), 2017 WL 9472944 at *2 (S.D.N.Y. Dec. 27, 2017),
report and recommendation adopted, 2018 WL 2338790 (S.D.N.Y. May 22, 2018) (“Even if a
court were to disagree with the arbitrator’s findings of fact, or had a difference of opinion about
the correct interpretation of the contract, an arbitration award would still be subject to
confirmation.”); Local 338 United Serv. Workers Union v. Advanced Ready Mix Corp., 2013 WL

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685447 at *3 (noting that a court must confirm the arbitration award where “there is no
indication that the arbitration decision was made arbitrarily, exceeded the arbitrator’s
jurisdiction, or otherwise was contrary to law”). Arbitrator La Manna issued a detailed, wellreasoned, ten-page decision. It is evident that Arbitrator La Manna had a thorough
understanding of the subject matter and issues in dispute, (see Braverman Aff. Ex. A, at 8–10),
and there is no evidence before me that suggests the Award was procured through fraud or
dishonesty. Thus, I find that the arbitration decision must be confirmed. See D.H. Blair, 462
F.3d at 110 (“The arbitrator’s rationale for an award need not be explained” and “[o]nly a barely
colorable justification for the outcome reached by the arbitrator is necessary to confirm the
award.” (internal quotation marks omitted)).
Conclusion
Accordingly, the June 21, 2018 Arbitration Award of Arbitrator La Manna dismissing the
arbitration proceedings is confirmed, and Plaintiffs’ motion to confirm the Award, (Doc. 17), is
GRANTED. Furthermore, in light of the foregoing, Plaintiffs’ request that I lift the stay in this
matter is GRANTED and this action is restored to my active docket. Within twenty-one days of
the date of this Order, the parties shall jointly submit to the Court a revised proposed case
management plan and scheduling order. A template for the order is available at
http://nysd.uscourts.gov/judge/Broderick.
SO ORDERED.
Dated:

April 12, 2019
New York, New York
______________________
Vernon S. Broderick
United States District Judge

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