BERGER v. CANTOR FITZGERALD INC

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Supreme Court, Appellate Division, First Department, New York.

Brian BERGER, Plaintiff-Respondent, v. CANTOR FITZGERALD, INC., et al., Defendants-Appellants.

Decided: June 10, 1997

Before SULLIVAN, J.P., and ROSENBERGER, ELLERIN, WILLIAMS and MAZZARELLI, JJ. Steven Arenson, for plaintiff-respondent. Richard E. Lerner, Thomas J. Kavaler, for defendants-appellants.

Order, Supreme Court, New York County (Leland DeGrasse, J.), entered May 1, 1996, which, inter alia, denied defendants' motions to compel arbitration, unanimously modified, on the law, to compel arbitration of plaintiff's claims for negligent and intentional infliction of emotional distress, and to sever and stay his remaining causes of action, and otherwise affirmed, without costs.

 Plaintiff's claims for slander do not involve “significant aspects” of his employment or defendants' business activities, since the alleged statements do not depend upon an evaluation of plaintiff's job performance as a broker's assistant, and are therefore not arbitrable under the parties' arbitration agreement (see, Singer v. Jefferies & Co., 78 N.Y.2d 76, 83, 571 N.Y.S.2d 680, 575 N.E.2d 98;  Fleck v. E.F. Hutton Group, 891 F.2d 1047, 1053 [(2nd Cir.1989)] ).   However, plaintiff's claims for intentional and negligent infliction of emotional distress are based, in part, on defendants' alleged retaliation against plaintiff by terminating his employment on pretextual grounds of lateness and poor performance, and are therefore arbitrable under the agreement.   Accordingly, plaintiff's claims for defamation are severed and stayed until his other claims are arbitrated (see, NASD Code of Arbitration Procedure, Rule 10106;  Fleck v. E.F. Hutton Group, supra, Morgan v. Smith Barney, Harris Upham & Co., 729 F.2d 1163, 1168 (8th Cir.1984)).

MEMORANDUM DECISION.