Opinion
1012 CA 20-00724
12-23-2020
In the Matter of Arbitration Between CITY OF UTICA, Petitioner-Respondent, v. LOCAL 32, International Association of Firefighters, AFL-CIO, C.L.C. Utica Professional Firefighters Association, on Behalf of Richard J. Forte, Respondent-Appellant.
GLEASON, DUNN, WALSH & O'SHEA, ALBANY (RONALD G. DUNN OF COUNSEL), FOR RESPONDENT-APPELLANT. WILLIAM M. BORRILL, CORPORATION COUNSEL, UTICA (KATHRYN F. HARTNETT OF COUNSEL), FOR PETITIONER-RESPONDENT.
GLEASON, DUNN, WALSH & O'SHEA, ALBANY (RONALD G. DUNN OF COUNSEL), FOR RESPONDENT-APPELLANT.
WILLIAM M. BORRILL, CORPORATION COUNSEL, UTICA (KATHRYN F. HARTNETT OF COUNSEL), FOR PETITIONER-RESPONDENT.
PRESENT: CARNI, J.P., LINDLEY, CURRAN, WINSLOW, AND DEJOSEPH, JJ.
MEMORANDUM AND ORDER
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: In this proceeding pursuant to CPLR article 75, Richard J. Forte (respondent) appeals from that part of an order that denied his motion to vacate an arbitration award. We affirm.
Respondent contends that the arbitrator improperly found him guilty of committing uncharged conduct, i.e., sexual harassment, and determined that termination was the appropriate penalty for that uncharged conduct. We reject that contention. Respondent was charged in the notice of disciplinary charges with, inter alia, conduct unbecoming a member of the Utica Fire Department "insofar as [he] knowingly and intentionally damage[d] property belonging to a fellow firefighter" by "intentionally, knowingly, and unlawfully, with the intent to damage property, deposit[ing] [his] semen onto the inside crotch area of a pair of pants belonging to" a fellow firefighter. The record establishes that the arbitrator determined that respondent was guilty of that charge, and concluded that termination was the appropriate penalty. Thus, contrary to respondent's contention, the arbitration award is based on a finding that he committed conduct that was alleged in the notice of disciplinary charges (see generally Matter of Murray v. Murphy , 24 N.Y.2d 150, 157, 299 N.Y.S.2d 175, 247 N.E.2d 143 [1969] ; Matter of Licciardi v. City of Rochester , 87 A.D.3d 1381, 1383, 930 N.Y.S.2d 145 [4th Dept. 2011] ).
We have considered respondent's remaining contentions and conclude that none warrants modification or reversal of the order.