Opinion
2019-12420 Index No. 609688/19
03-08-2023
In the Matter of LONG BEACH PROFESSIONAL FIREFIGHTERS ASSOCIATION, etc., respondent, v. CITY OF LONG BEACH, appellant.
Bond Schoeneck & King, PLLC, Garden City, NY (Richard S. Finkel and Terry O'Neil of counsel), for appellant. Law Offices of Louis D. Stober, Jr., LLC, Mineola, NY, for respondent.
Bond Schoeneck & King, PLLC, Garden City, NY (Richard S. Finkel and Terry O'Neil of counsel), for appellant.
Law Offices of Louis D. Stober, Jr., LLC, Mineola, NY, for respondent.
MARK C. DILLON, J.P., CHERYL E. CHAMBERS, WILLIAM G. FORD, LILLIAN WAN, JJ.
DECISION & ORDER In a proceeding pursuant to CPLR article 75 to confirm an arbitration award dated January 22, 2019, the City of Long Beach appeals from an order of the Supreme Court, Nassau County (James P. McCormack, J.), dated October 21, 2019. The order granted the petition to confirm the arbitration award and denied the cross-motion of the City of Long Beach to dismiss the petition or, in the alternative, to reassign the petition, and to vacate the arbitration award.
ORDERED that the order is affirmed, with costs.
The petitioner, Long Beach Professional Fire Fighters Association (hereinafter the union), and the City of Long Beach entered into a collective bargaining agreement (hereinafter the CBA) covering the period from July 1, 2004, through June 30, 2010, and thereafter continued pursuant to the Triborough Law (see Civil Service Law § 209–a[1][e] ; Matter of Professional Staff Congress–City Univ. of N.Y. v. New York State Pub. Empl. Relations Bd., 7 N.Y.3d 458, 466, 824 N.Y.S.2d 577, 857 N.E.2d 1108 ). Firefighters and any municipal employees assigned to the fire department were covered by the CBA. In early 2015, the City hired several paramedics, and unilaterally set their terms of employment. The union filed a grievance and, when the grievance was denied, filed a demand for arbitration. Following the City's unsuccessful proceeding to stay arbitration of so much of the union's grievance as related to the paramedics (see Matter of City of Long Beach v. Long Beach Professional Fire Fighters Assn., Local 287, 161 A.D.3d 855, 77 N.Y.S.3d 502 ; hereinafter the prior proceeding), the arbitrator issued an award determining that the City violated certain provisions of the CBA when it set contrary terms and conditions of the paramedics’ employment. Specifically, the City violated Articles 3(A), 12(A), and 28(G) of the CBA when it required paramedics to work 12 hour shifts, required paramedics to pay 10% of the cost of their health care plan, and calculated the paramedics’ hourly pay rate based on 2088 work hours per year, respectively.
The union commenced this proceeding pursuant to CPLR article 75 to confirm the arbitration award. The City cross-moved pursuant to CPLR 7502(a)(iii) to dismiss the petition or, in the alternative, to reassign the petition to the Justice who presided over the prior proceeding, and to vacate the arbitration award. The Supreme Court granted the petition to confirm the award and denied the City's cross-motion. The City appeals.
Pursuant to CPLR 7502(a)(iii), the proper procedure would have been for the union to move to confirm the arbitration award in the prior proceeding (see Matter of Gleason [Michael Vee, Ltd.], 96 N.Y.2d 117, 122, 726 N.Y.S.2d 45, 749 N.E.2d 724 ). However, the Supreme Court properly disregarded the defect pursuant to CPLR 103(c) (see Matter of Wicks Constr., Inc. [Green], 295 A.D.2d 527, 528, 744 N.Y.S.2d 452 ).
"Judicial review of arbitration awards is extremely limited" ( Kotlyar v. Khlebopros, 176 A.D.3d 793, 795, 109 N.Y.S.3d 449, citing Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d 471, 479, 813 N.Y.S.2d 691, 846 N.E.2d 1201 ). Pursuant to CPLR 7511(b)(1)(iii), a court may vacate an arbitrator's award that "violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" ( Matter of New York City Tr. Auth. v. Transport Workers’ Union of Am., Local 100, AFL–CIO, 6 N.Y.3d 332, 336, 812 N.Y.S.2d 413, 845 N.E.2d 1243 ; see Matter of Panos v. Mid Hudson Med. Group, P.C., 204 A.D.3d 1016, 1017–1018, 167 N.Y.S.3d 539 ). Additionally, an award may be vacated where "it exhibits a ‘manifest disregard of law’ " ( Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d at 480, 813 N.Y.S.2d 691, 846 N.E.2d 1201, quoting Duferco Intern. Steel Trading v. T. Klaveness Shipping A/S, 333 F.3d 383, 388 [2d Cir.] ). The burden is on the movant to establish grounds for vacatur by clear and convincing evidence (see Matter of Panos v. Mid Hudson Med. Group, P.C., 204 A.D.3d at 1018, 167 N.Y.S.3d 539 ; Matter of Soliman v. Suffolk County Dept. of Pub. Works, 155 A.D.3d 1049, 1050, 64 N.Y.S.3d 555 ).
Here, the City failed to demonstrate by clear and convincing evidence that the arbitration award should be vacated on the grounds that it was irrational (see Matter of J–K Apparel Sales Co., Inc. v. Esposito, 189 A.D.3d 1045, 1046, 133 N.Y.S.3d 892 ; Matter of Kirchhoff–Consigli Constr. Mgt., LLC v. Mechtronics Corp., 144 A.D.3d 682, 683, 41 N.Y.S.3d 235 ), or exhibited a manifest disregard of the law (see Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d at 480, 813 N.Y.S.2d 691, 846 N.E.2d 1201 ; Matter of County of Rockland v. Civil Serv. Empl. Assn., Inc., 93 A.D.3d 721, 722, 940 N.Y.S.2d 285 ; cf. Civil Service Law § 209–a[1][d] ). Additionally, the City failed to establish that the arbitrator engaged in misconduct (see Dedvukaj v. Parlato, 136 A.D.3d 733, 734, 24 N.Y.S.3d 530 ; Matter of Allstate Ins. Co. v. GEICO [Govt. Empls. Ins. Co.], 100 A.D.3d 878, 879, 955 N.Y.S.2d 100 ), or that the award violated public policy (see Matter of New York State Correctional Officers & Police Benevolent Assn., Inc. v. State of New York, 94 N.Y.2d 321, 327, 704 N.Y.S.2d 910, 726 N.E.2d 462 ; Matter of County of Nassau v. Sheriff's Officers Assn., Inc., 294 A.D.2d 31, 35, 743 N.Y.S.2d 503 ).
Finally, although the Supreme Court erred in determining that the City's cross-motion was untimely (see Matter of Lyden v. Bell, 232 A.D.2d 562, 563, 649 N.Y.S.2d 33 ; Karlan Constr. Co. v. Burdick Assoc. Owners Corp., 166 A.D.2d 416, 417, 560 N.Y.S.2d 480 ), and in declining to consider the City's reply papers, such errors were harmless inasmuch as the court considered the City's arguments in support of its cross-motion as made in opposition to the petition to confirm, and the arguments raised in the reply papers were without merit (see Matter of Chautauqua County Dept. of Social Servs. v. Rita M.S., 94 A.D.3d 1509, 1514, 943 N.Y.S.2d 332 ).
Accordingly, the Supreme Court properly granted the petition to confirm the arbitration award, and properly denied the City's cross-motion.
DILLON, J.P., CHAMBERS, FORD and WAN, JJ., concur.