Opinion
108154/10.
Decided November 8, 2010.
Ellen O'Hara Woods, Esq., Robert Sl. Lewis, Esq., Nyack, NY, for petitioner.
Shakera Khandakar, ACC. Michael A. Cardozo, Corp. Counsel of the City of New York, New York, NY, for respondent.
By order to show cause and verified petition dated June 30, 2010, petitioner moves pursuant to CPLR 7511 and Education Law 3020-a(4) for an order vacating an arbitration award rendered on June 1, 2010. Respondent opposes the motion and, by notice of cross-motion dated July 22, 2010, moves pursuant to CPLR 7511 and 404(a) and CPLR 3211(a)(7) for an order dismissing the petition, and pursuant to CPLR 7511(e) for an order confirming the arbitration award and entering judgment in its favor.
I. PERTINENT BACKGROUND
Petitioner is a physical education teacher, and has been continuously employed by respondent since 1995 at various schools. In 1999, petitioner became tenured, and in September 2004, began working at the Museum School. Prior to 2004, petitioner had never received any unsatisfactory ratings or observations. (Petition, dated June 21, 2010 [Pet.]).
On or about December 6, 2005, respondent brought 23 charges against petitioner pursuant to Education Law 3020-a and sought his dismissal from employment (first proceeding). (Pet., Exh. 1). Arbitrator Jack Tillem was assigned to conduct the hearing in the first proceeding. ( Id.).
Prior to the charges being brought against petitioner, on or about October 11, 2005, he retained the law firm of Neal Brickman Associates to file a lawsuit in federal court against respondent. ( Id.). David Kearney, an attorney for the law firm, agreed to represent petitioner in the first proceeding before Tillem. ( Id.).
During the hearing process, Kearney notified respondent and Tillem that petitioner had threatened to kill Tillem. ( Id.). Tillem then recused himself from conducting the hearing in the first proceeding. ( Id.).
On or about May 15, 2007, respondent's Office of the Special Commissioner of Investigations (SCI) commenced an investigation into Kearney's allegations. ( Id., Exh. 7). Shortly thereafter, petitioner was referred to respondent's Medical Unit for psychiatric evaluation. ( Id.).
By affirmation dated May 23, 2007, Kearney moved for leave to withdraw as counsel for petitioner in the federal court action. In his affirmation in support of his motion, filed under seal, Kearney detailed why he was seeking leave to withdraw as petitioner's counsel, including a description of the threats petitioner allegedly made against Tillem. ( Id., Exh. 5).
On June 22, 2007, Kearney testified under oath at an interview conducted by SCI. ( Id., Exh. 6). SCI also interviewed Tillem, along with respondent's counsel in the first proceeding, and respondent's supervising counsel with whom Kearney had first spoken regarding petitioner's alleged threats. ( Id., Exh. 7).
By letter dated October 9, 2007, from SCI to respondent's Chancellor, SCI reported that it had substantiated Kearney's allegations regarding petitioner's threats and recommended that petitioner's employment be terminated and that he be placed on the ineligible employment list. ( Id., Exh. 2).
On December 4, 2007, a new arbitrator, assigned to the first proceeding, rendered a decision and recommended that petitioner be suspended without pay for one year. ( Id.). By decision and order dated April 30, 2008, another justice of this court granted petitioner's petition to vacate the award and remanded the matter for a new hearing. By decision and order dated November 19, 2009, the Appellate Division, First Department reversed the Supreme Court order, reinstated petitioner's suspension, and dismissed his petition.
II. SECOND ARBITRATION PROCEEDING
Sometime between 2007 and 2009, respondent commenced a second disciplinary proceeding against petitioner pursuant to Education Law 3020-a. ( Id., Exh. 1). Petitioner was originally charged with four specifications, as follows:
(1)On or about April 12, 2007, petitioner made death threats against Tillem;
(2)On May 2, 2007, petitioner mailed a letter to Tillem, alleging that Tillem was biased against him, the text and tone of which alarmed Tillem;
(3)On May 8, 2007, the death threats were conveyed to Tillem, making him feel threatened; and
(4)The death threat and letter caused Tillem to recuse himself from the first proceeding, causing delay and thereby obstructing, impairing and perverting the administration of law.
( Id.).
On or about May 7, 2009, petitioner was served with a second set of charges, and on May 21, 2009, a third set of charges, both of which relate to time and attendance. ( Id., Exh. 2). All of the charges were consolidated for the hearing, which was held on May 7, 12, 13, 21 and June 2, 9, and 10, 2009. Petitioner participated in the hearing with new counsel. Kearney did not testify at the hearing.
By award dated June 1, 2010, the arbitrator, in a 50-page written decision, sustained specifications one, two, and four of the original charges, finding that petitioner "uttered death threats against the arbitrator assigned to his 3020-a hearing" and that "such threats constituted just cause for [petitioner's] dismissal from service," effective immediately. (Pet., Exh. 1). She also sustained specification one of the second set of charges, and specifications one and two of the third set of charges, but found that no additional penalty was required due to her determination as to the first set of charges. ( Id.).
In support of her determination, the arbitrator recognized that Kearney's statements were hearsay, and while acknowledging that hearsay may be admitted in a 3020-a proceeding, she nonetheless reviewed the reliability of Kearney's statements and decided their weight. For the reasons stated in the award, the arbitrator concluded that Kearney's statements were sufficiently reliable, and thus overruled petitioner's objections to the admissibility of the statements. ( Id.).
III. PETITION TO VACATE
A. Contentions
Petitioner argues that the arbitration award should be vacated on the ground of corruption, fraud or misconduct by the arbitrator and respondent's attorneys, which undermined the validity of the award and prejudiced his rights, as the arbitrator was biased against him. He alleges that her bias is evidenced by her permitting the hearing to go forward without Kearney's live testimony and by crediting and relying on Kearney's hearsay testimony to sustain respondent's specifications against petitioner. Her partiality, he asserts, is reflected in her decision to rely solely on Kearney's hearsay testimony, and she thereby so imperfectly exercised her power that the award violates public policy and failed to follow proper procedures. (Affirmation of Ellen O'Hara Woods, Esq., dated June 18, 2010).
Petitioner also maintains that respondent's attorneys were dishonest and unethical in requiring him to undergo a medical evaluation during the pendency of the first proceeding, and then, after Kearney was relieved as his counsel and before the results of the medical evaluation were known, requiring him to appear at the hearing in the first proceeding, knowing that he had not yet retained a new attorney.
Respondent argues that the arbitrator's decision was rational and supported by adequate evidence, and observes that most of petitioner's arguments in support of vacating the award relate to the arbitrator's credibility, factual, and legal determinations, which may not be reviewed here. Respondent also contends that there is no evidence to support petitioner's claim that the arbitrator was biased and partial against him, and that the adverse ruling does not constitute evidence of bias. Finally, respondent asserts that petitioner was not denied due process as hearsay is admissible in administrative hearings and as he and his counsel fully participated in the hearing. (Respondent's Memo. of Law, dated July 22, 2010).
In reply, petitioner argues that the arbitrator did not adequately address Kearney's motives in disclosing the alleged threats and the reason for Tillem's recusal, and questions why the arbitrator did not credit his testimony. (Reply Affirmation, dated Sept. 3, 2010).
B. Applicable law
The scope of judicial review of an arbitration proceeding is extremely limited. ( Wien Malkin LLP v Helmsley-Spear, Inc. , 6 NY3d 471 , cert denied 548 US 940; Matter of Campbell v New York City Tr. Auth. , 32 AD3d 350 [1st Dept 2006]). The court must defer to the arbitrator's decision ( Matter of New York City Tr. Auth. v Transp. Workers' Union of Am., Local 100, AFL-CIO , 6 NY3d 332 ), and is bound by the arbitrator's factual findings and interpretations of the agreement at issue ( Matter of Brown Williamson Tobacco Corp. v Chesley , 7 AD3d 368 [1st Dept 2004]). It may not "examine the merits of an arbitration award and substitute its judgment for that of the arbitrator simply because it believes its interpretation would be the better one." ( Matter of New York State Correctional Officers and Police Benev. Assn. v State of New York, 94 NY2d 321).
When a hearing is held pursuant to CPLR 3020-a, a party who was subject to the hearing may apply to vacate a hearing officer's decision pursuant to CPLR 7511 upon a showing of misconduct, bias, excess of power, or procedural defects. ( City School Dist. of City of New York v McGraham , 75 AD3d 445 [1st Dept 2010]; Austin v Bd. of Educ. of City School Dist. of City of New York, 280 AD2d 365 [1st Dept 2001]). And when a party is required to arbitrate, the arbitrator's decision is subject to closer judicial scrutiny; the arbitration award "must be in accord with due process and supported by adequate evidence, and must also be rational and satisfy the arbitrary and capricious standards of CPLR article 78." ( Lackow v Dept. of Educ. (or "Board") of City of New York , 51 AD3d 563 [1st Dept 2008], citing Motor Vehicle Mfrs. Assn. of U.S. v State of New York, 75 NY2d 175, 186). The party challenging the arbitration award has the burden of proving that it is invalid. ( Lackow, 51 AD3d at 568). The standard of review is "whether the award is supported by evidence or other basis in reason, as may be appropriate, and appearing in the record." ( Mount St. Mary's Hosp. of Niagara Falls v Catherwood, 26 NY2d 493).
C. Analysis 1. Corruption, fraud, and misconduct a. By arbitrator
An allegation of bias against an arbitrator must be established by clear and convincing proof, showing more than a mere inference of partiality. ( Matter of Infosafe Systems, Inc. [Intl. Dev. Partners, Ltd.], 228 AD2d 272 [1st Dept 1996]). Partiality may be established by proof of actual bias or the appearance of bias, from which the arbitrator's conflict of interest may be inferred. ( New York Restaurants Exchange, Inc. v Chase Manhattan Bank, N.A., 226 AD2d 312 [1st Dept 1996], lv denied 89 NY2d 861).
It is well-settled that hearsay evidence is admissible and may be considered by an arbitrator at an arbitration hearing. ( Silverman v Benmor Coats, Inc., 61 NY2d 299; Austin, 280 AD2d at 365). Hearsay may also constitute the sole basis for the arbitrator's decision. ( Lindemann v Am. Horse Shows Assn., Inc., 222 AD2d 248 [1st Dept 1995]).
Consequently, the arbitrator's consideration and reliance on Kearney's statements does not constitute misconduct or evidence bias. ( See eg Brill v Muller Bros., Inc., 13 NY2d 776, cert denied 376 US 927 [actions of arbitrator in receiving evidence that would be inadmissible at trial in court did not constitute corruption, fraud, or misconduct]; Crossman-Battisti v Traficanti, 235 AD2d 566 [3d Dept 1997] [that fact-finder relied on hearsay did not require annulment of determination]; Commercial Union Ins. Co. v Ewall, 168 AD2d 247 [1st Dept 1990] [arbitrator's receipt in evidence of medical reports from doctors who did not testify at hearing did not warrant vacatur of award]).
Even if the arbitrator erred in admitting the hearsay statements, it is well-settled that an arbitration award may not be vacated on that ground. ( See Wien Malkin LLP, 6 NY3d at 479-480 ["we have stated time and again that an arbitrator's award should not be vacated for errors of law and fact committed by the arbitrator"]). Her determinations as to credibility and the evidence are likewise unreviewable. ( See Cent. Sq. Teachers Assn. v Bd. of Educ. of the Cent. Sq. Cent. School Dist., 52 NY2d 918 ["The path of analysis, proof and persuasion by which the arbitrator reached [her] conclusion is beyond judicial scrutiny."]; Bd. of Educ. of Byram Hills Cent. School Dist. v Carlson , 72 AD3d 815 [2d Dept 2010] [hearing officer has discretion to determine what weight to give evidence and court may not substitute its judgment for that of officer]; Saunders v Rockland Bd. of Coop Educ. Servs. , 62 AD3d 1012 , 1013 [2d Dept 2009] ["When reviewing compulsory arbitrations in education proceedings . . . the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists."]; Lindemann, 222 AD2d at 250 [court may not weigh evidence or substitute its assessment of evidence or witnesses' credibility for that of hearing officer]). For the same reason, petitioner's argument that the alleged statements made by him do not constitute a "true threat," which argument was considered and rejected by the arbitrator, may not be reviewed.
Moreover, the arbitrator specifically addressed petitioner's concerns about the reliability of Kearney's statements, and explained, in great detail, her reasons for finding them reliable and credible, as they were corroborated by other witnesses at the hearing, including Tillem, and she detailed her reasons for rejecting petitioner's allegations.
For all of these reasons, the award is rational and supported by adequate evidence. ( Matter of Buffalo Teachers Fedn., Inc. [Bd. of Educ. of Buffalo City School Dist. ], 67 AD3d 1402 [4th Dept 2009] [arbitrator's findings supported by documentary evidence in record before arbitrator]; Lackow, 51 AD3d at 568 [record of hearing supported hearing officer's conclusions]; DiNapoli v Peak Auto., Inc. , 34 AD3d 674 [2d Dept 2006] [conclusion supported by evidence in record]; Austin, 280 AD2d at 365 [hearing officer's finding was supported by record as officer credited certain testimony and found petitioner's testimony incredible]).
Absent any other ground advanced to support his claim that the arbitrator was biased and partial against him, petitioner has not satisfied his burden of proving that the arbitrator engaged in corruption, fraud, or misconduct.
b. By respondent's attorneys
As petitioner's claim that respondent's attorneys engaged in misconduct relates to the first proceeding only, having moved to vacate the first award, and having had a full and fair opportunity to advance his arguments, he is precluded from raising the issue here. ( See eg Kern v Excelsior 57th Corp., LLC, 2010 WL 4067890, 2010 NY Slip Op 07408 [1st Dept] [respondent barred by collateral estoppel from re-litigating issue raised in prior arbitrations as it had full and fair opportunity to litigate it then]).
2. Excess of power
As petitioner did not prove that the arbitrator was partial or biased against him, he has, per force, not demonstrated that the arbitrator exceeded her power.
3. Procedural defects
As the arbitrator did not improperly rely on hearsay ( supra ., III.C.1.a), petitioner has failed to establish that she failed to follow proper procedures.
4. Petitioner's other arguments
Petitioner also argues that his letter to Tillem did not warrant discipline under specification two as Tillem was not threatened by the letter, and that inasmuch as he did not intend to convey any threats to Tillem, the arbitrator should not have found that he was responsible for Tillem's recusal. As these arguments again ask that the court second-guess the arbitrator's analysis and determination, they are improperly interposed.
Petitioner's argument that the arbitrator should have dismissed the time and attendance specifications as they were improperly consolidated with the first set of charges is meritless absent any demonstration that he was prejudiced by the consolidation, having had an opportunity to cross-examine the witnesses who testified as to these charges and to examine their evidence. ( See eg Travelers Ins. Co., 239 AD2d at 292; see Travelers Ins. Co. v Job, 239 AD2d 289 [1st Dept 1997], quoting Korein v Rabin, 29 AD2d 351 [1st Dept 1968] [courts will not concern themselves with form or sufficiency of evidence before arbitrators or some departure from formal technicalities in absence of clear showing that statutory grounds exist to vacate award]). In any event, even assuming that the arbitrator should not have consolidated the charges, her findings related to the time and attendance charges are essentially insignificant given the other sustained charges and absent any additional penalty imposed for them.
IV. RESPONDENT'S CROSS-MOTION
As I have denied petitioner's motion to vacate the award, it must be confirmed. (CPLR 7511[e]).
V. CONCLUSION
Accordingly, it is hereby
ADJUDGED and ORDERED, that the petition for an order vacating the award is denied; it is further
ADJUDGED and ORDERED, that respondent's cross-motion for an order dismissing the petition is granted and the proceeding is dismissed, with costs and disbursements to respondent; and it is further
ADJUDGED and ORDERED, that respondent, having an address at 100 Church Street, New York, New York 10007, do recover from petitioner, having an address at 2 Sutton Place South, Apt. 10G, New York, NY 10022, costs and disbursements in the amount of $ _______________, as taxed by the Clerk, and that respondent have execution therefor.