ERCOLI v. EMPIRE PROFESSIONAL SOCCER LLC (2007)

Plaintiff commenced this breach of contract action against defendant, the owner of the Rochester Raging Rhinos soccer team, following his termination from employment as the team's head coach.   Plaintiff had submitted his wrongful discharge claim to arbitration, but the demand for arbitration was dismissed as untimely pursuant to the terms of plaintiff's employment contract.   Supreme Court properly granted defendant's motion insofar as it sought dismissal of the complaint on the ground that plaintiff was relegated to binding arbitration.   Indeed, plaintiff correctly concedes that the contract provides for mandatory arbitration based on the provision that “all disputes, claims, and questions regarding the rights and obligations of the owner and employee under the terms of the contract are subject to arbitration” (see Egol v. Egol, 68 N.Y.2d 893, 895-896, 508 N.Y.S.2d 935, 501 N.E.2d 584;  Triangle Equities Inc. v. Listokin, 13 A.D.3d 269, 788 N.Y.S.2d 14;  see also Local 771, I.A.T.S.E., AFL-CIO v. RKO Gen., Inc., WOR Div., 546 F.2d 1107, 1115-1116).   Plaintiff contends, however, that the arbitrator's decision is advisory only and not binding on the parties because the contract further provides that “[t]he decision of the arbitrators shall be a condition precedent to any right to legal action that either party may have against the other.”   Contrary to plaintiff's contention, the “condition precedent” language in the contract is merely a vestige from usage under the common law of New York prior to the enactment of legislation governing arbitration (see e.g. Matter of Scott, 200 App.Div. 599, 193 N.Y.S. 403, affd. 234 N.Y. 539, 138 N.E. 438;   President of Delaware & Hudson Canal Co. v. Pennsylvania Coal Co., 50 N.Y. 250;  see also Matter of Marchant v. Mead-Morrison Mfg. Co., 252 N.Y. 284, 302-303, 169 N.E. 386, rearg. denied 253 N.Y. 534, 171 N.E. 770, appeal dismissed 282 U.S. 808, 51 S.Ct. 104, 75 L.Ed. 725), and that language does not alter the efficacy of the provision in the contract that the decision of the arbitrator or arbitrators “shall be binding” (see Local 771, I.A.T.S.E., AFL-CIO, 546 F.2d at 1115-1116;  see also Egol, 68 N.Y.2d at 896, 508 N.Y.S.2d 935, 501 N.E.2d 584;  Triangle Equities Inc., 13 A.D.3d at 270, 788 N.Y.S.2d 14;  Lovisa Constr. Co. v. Metropolitan Transp. Auth., 225 A.D.2d 740, 740-741, 640 N.Y.S.2d 156, lv. denied 88 N.Y.2d 808, 647 N.Y.S.2d 713, 670 N.E.2d 1345).   Arbitration therefore was plaintiff's sole available remedy, and this action was properly dismissed (see Matter of River Brand Rice Mills v. Olympia & York OLP Co. v. Merrill Lynch, Pierce, Fenner & Smith, 214 A.D.2d 509, 510-511, 626 N.Y.S.2d 69).

Finally, we note that plaintiff failed to preserve for our review his alternative contention concerning the doctrine of disproportionate forfeiture (see generally Oppenheimer & Co. v. Oppenheim, Appel, Dixon & Co., 86 N.Y.2d 685, 691, 636 N.Y.S.2d 734, 660 N.E.2d 415) and, in any event, that contention is without merit.

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: