Opinion
November 5, 1970
Appeal from the Onondaga Special Term.
Present — Del Vecchio, J.P., Marsh, Gabrielli, Moule and Bastow, JJ.
Order insofar as it granted partial summary judgment to plaintiff unanimously reversed and motion denied: order insofar as it denied a stay unanimously reversed and stay granted: otherwise order unanimously affirmed, all without costs. Memorandum: In this action to recover the purchase price of newspapers sold and delivered to defendant as a distributor, triable issues are presented as to the number of papers delivered after defendant had served notice of cancellation, whether payment had been made for the papers for which recovery is sought and whether defendant was relieved of his obligation for payment by reason of unlawful discharge before collection from his customers. Accordingly, the motion for partial summary judgment should have been denied. ( Falk v. Goodman. 7 N.Y.2d 87.) It appears that on January 22, 1968 newspaper distributors including defendant were discharged by plaintiff. Thereafter the union on their behalf filed a charge with the National Labor Relations Board (NLRB) alleging that the company had engaged in unfair labor practices. The trial examiner found that although defendant had canceled papers from the company it had continued to deliver them and bill defendant the same. He also found that the termination of defendant's distributor's contract constituted unlawful discrimination against him. He recommended that the company reinstate or renew the distributor's agreement with defendant and make him whole for any loss of compensation suffered as a result of the unlawful discrimination. The NLRB adopted the findings and recommendations made by the examiner. A review of this determination is presently pending before the United States Court of Appeals for the Second Circuit. We agree with Special Term that the subject of this litigation is not pre-empted by the jurisdiction of the NLRB. We find, however, that in the circumstances presented the denial of a stay of the action until completion of the administrative proceeding was an improvident exercise of discretion. The claims of delivery and billing of papers after cancellation by defendant and improper discharge — which will be major issues in the action for papers sold and delivered — have already been passed on twice and the resolution of those claims is now under judicial review in a Federal appellate court. In our opinion, to avoid duplication of effort in presentation of proof on these issues and a possible conflict in judicial determinations, the interests of justice would be best served by granting a stay of all further proceedings in this action under CPLR 2201 until conclusion of the NLRB proceedings. ( Channel Master Corp. v. JFD Electronics Corp., 26 A.D.2d 961; Maguire v. Ardea Realty Corp., 279 App. Div. 904.)