Pepsi-Cola Bottling Co. of N.Y., Inc. v. N.Y. Pepsi-Cola Distribs. Ass'n, Inc.

Full title: In re Pepsi-Cola Bottling Company of New York, Inc., Petitioner-Appellant…

Court: Appellate Division of the Supreme Court of the State of New York

Date published: May 16, 2019

2019 N.Y. Slip Op. 3901 (N.Y. App. Div. 2019)

Opinion

652209/18 9343N

05-16-2019

In re Pepsi-Cola Bottling Company of New York, Inc., Petitioner-Appellant, v. New York Pepsi-Cola Distributors Association, Inc., Respondent-Respondent, A.J.A. Beverage Distributors, Inc., et al., Respondents.

Epstein Becker & Green, P.C., New York (Patrick G. Brady of counsel), for appellant. Haynes and Boone, LLP, New York (David Fleischer of counsel), for respondent.

Gische, J.P., Kahn, Gesmer, Singh, Moulton, JJ.

Epstein Becker & Green, P.C., New York (Patrick G. Brady of counsel), for appellant.

Haynes and Boone, LLP, New York (David Fleischer of counsel), for respondent.

Order, Supreme Court, New York County (Andrea Masley, J.), entered August 24, 2018, which denied, in part, petitioner's motion pursuant to CPLR 7502(c) to quash an arbitration subpoena, and granted, in part, respondent's cross motion to compel compliance with the subpoena, unanimously affirmed, without costs.

The court providently exercised its discretion in declining to grant petitioner's motion to quash the subpoena in its entirety but limiting the scope of respondent's requests for information. Respondent seeks higher commissions to be paid to its members for their sale and delivery of certain beverage products. The arbitrator declined to bifurcate the proceedings to consider first whether, under the terms of the parties' distribution agreement, respondent may properly seek an arbitration ruling raising the commission rates they are paid for their sale and delivery of certain beverage products, and determined to hear all issues raised in respondent's arbitration demand together. With the limitations in the scope of respondent's requests for information in place, the business-sensitive materials and information requested in the subpoena are not "utterly irrelevant" to the issues that are presently before the arbitrator (see Matter of Kapon v Koch, 23 NY3d 32, 34 [2014]; Harold Levinson Assoc., Inc. v Wong, 128 AD3d 566 [1st Dept 2015]; Ledonne v Orsid Realty Corp., 83 AD3d 598 [1st Dept 2011]). To the extent the requested information is commercially sensitive, it can adequately be protected by a confidentiality agreement.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 16, 2019

DEPUTY CLERK