Opinion
December 17, 1982
Appeal from the Supreme Court, Erie County, Marshall, J.
Present — Hancock, Jr., J.P., Doerr, Denman, Boomer and Schnepp, JJ.
Judgment and order unanimously affirmed, without costs. Memorandum: Petitioner James Keleher was dismissed from his job with respondent American Airlines. Although Keleher was protected by no collective bargaining agreement, the company had promulgated a grievance procedure optional with the employee which included a hearing to be presided over by a hearing officer who was to be chosen by the company from a roster of managerial employees. An employee is further entitled to a review of the hearing officer's decision by a three-member panel of the review board which is composed of 15 officers of the company. Since there was no written contract of employment, the relationship was terminable at will by either party, subject to the regulations, which constitute an implied contract. Keleher commenced a special proceeding pursuant to CPLR 7502 to disqualify the hearing officer selected by the company and to substitute a court-appointed panel. The petition was properly dismissed as it fails to state a cause of action. Although there is no specific provision in the CPLR for challenging the impartiality of an arbitrator in advance of arbitration, such a right has been implied (see Matter of Siegel [ Lewis], 40 N.Y.2d 687, 692, concurring opn of Breitel, Ch. J.). However, commercial arbitration is a creature of statute, and the parties are free to choose their own arbitrator. A relationship between the arbitrator and a party, "including one as close as employer and employee", will not in and of itself disqualify the designated arbitrator ( Matter of Siegel [ Lewis], supra, p 690). Petitioner has alleged no facts which would disqualify the proposed hearing officer other than his status as a managerial employee. This is insufficient as a matter of law, and therefore the petition was properly dismissed.