USA v. Robert Song, Respondent-Appellant. (2011)

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Order, Supreme Court, New York County (Marcy S. Friedman, J.), entered December 3, 2009, which granted the petition to stay arbitration before the Financial Industry Regulatory Authority (FINRA), unanimously reversed, on the law, without costs, the petition denied, and the proceeding dismissed.

When respondent became an employee of petitioner, he signed a Uniform Application for Securities Industry Registration or Transfer form (Form U-4), in which he agreed to arbitrate any disputes arising with petitioner under the rules of FINRA.   He subsequently executed a letter agreement (Agreement), which requires arbitration of all claims arising from the employment relationship with petitioner under the Employment Dispute Resolution Rules of the American Arbitration Association, except for, in pertinent part, “a claim that would otherwise be covered under a U4 agreement.”

Since respondent's claims in this wrongful termination action are covered under the Form U-4, they fall within the “carve out” provision of the Agreement and therefore are not subject to petitioner's mandatory arbitration procedures (see Credit Suisse First Boston Corp. v Pitofsky, 4 NY3d 149 [2005] ).   The Agreement does not unambiguously supplant the Form U-4, and any ambiguity in the Agreement must be construed against petitioner as the drafter thereof (see generally Yudell v. Israel & Assoc., 248 A.D.2d 189, 189-190 [1998] ).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

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CLERK