You are here: / Arbitration
, ,

THE UNION’S CLAIM THAT THE COUNTY EMPLOYEE, A SEASONAL EMPLOYEE, SHOULD BE CLASSIFIED AS FULL-TIME BECAUSE HE WORKED 40 HOURS-A-WEEK WAS NOT ARBITRABLE BECAUSE CIVIL SERVICE LAW SECTION 22 PROVIDES THAT RECLASSIFICATION OF A CIVIL SERVICE POSITION CAN ONLY BE DONE BY THE MUNICIPAL CIVIL SERVICE COMMISSION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the grievance filed on behalf of a county employee was not arbitrable because the relief required reclassification of a civil service position:

The respondent Joseph W. Grzymalski began to work for the petitioner, the County of Nassau, on June 28, 2013. He was classified as a seasonal worker and allegedly worked 40 hours per week until his employment was terminated on July 3, 2018.

… [T]he respondent Civil Service Employees Association, AFSCME, Local 1000, AFL-CIO, by its Local 830 (hereinafter CSEA), on behalf of Grzymalski, filed a grievance claiming that because Grzymalski worked 40 hours per week, he was entitled to “full time benefits and status.” …

In determining whether a dispute between a public sector employer and employee is arbitrable, a court must first determine whether “there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” … . …

… [T]he respondents are essentially seeking a reclassification of Grzymalski’s position from seasonal to full time. Since the reclassification of a civil service position can only be accomplished by the municipal civil service commission (see Civil Service Law § 22), the subject grievance is nonarbitrable … . Matter of County of Nassau v Civil Serv. Empls. Assn., Civ. Serv. Empls. Assn., AFSCME, Local 1000, AFL-CIO, 2022 NY Slip Op 01453, Second Dept 3-9-22

Practice Point: Civil Service Law section 22 requires that any reclassification of a public sector employee’s position be done by the municipal civil service commission. Therefore, because there was a statutory prohibition, the request to classify the “seasonal” county employee as a full-time employee was not arbitrable.

THE ARBITRATOR EXCEEDED HER POWERS BY AWARDING RELIEF WHICH WAS NOT REQUESTED BY ALL THE PARTIES OR AUTHORIZED BY LAW; PUNITIVE DAMAGES, SANCTIONS AND ATTORNEY’S FEES AWARDS VACATED (FIRST DEPT).

The First Department vacated the arbitrator’s award of punitive damages, sanctions and attorney’s fees because that relief was not requested by the parties, therefore the arbitrator exceeded her power:

Although the American Arbitration Association (AAA) preprinted form petitioner used allows a claimant to seek other relief, including attorneys’ fees, interest, arbitration costs and punitive/exemplary damages, the only boxes that petitioner checked off were for interest and arbitration costs. It did not check the punitive damages box or attorneys’ fees box, nor indicate anywhere on its demand that it was seeking such relief. Petitioner never amended its demand for arbitration. Nor did it include a prayer for such relief in its subsequently filed post-arbitration memorandum. By granting unrequested relief, the arbitrator exceeded the expressly enumerated limits on her authority by deciding matters that were not before her … .

Although AAA commercial rule 47(d) empowers an arbitrator to award attorneys’ fees, this is only “if all parties have requested such an award or it is authorized by law or their arbitration agreement.” Here, neither party requested such an award and it is not authorized by law.  Matter of 544 Bloomrest, LLC v Harding, 2022 NY Slip Op 00936, First Dept 2-10-22​

 

, ,

THE NUMBER OF FIREFIGHTERS WHICH MUST BE ON DUTY DURING A SHIFT IS A HEALTH AND SAFETY ISSUE, WHICH IS ARBITRABLE PURSUANT TO THE COLLECTIVE BARGANING AGREEMENT, NOT A JOB SECURITY ISSUE (WHICH IS NOT ARBITRABLE) (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the number of firefighters which must be on duty during a shift is not a job-security issue and is therefore arbitrable pursuant to the collective bargaining agreement (CBA):

Respondent contends that Supreme Court erred in concluding that its grievance concerned nonarbitrable job security clauses as the clauses relate only to minimum shift staffing requirements and do not guarantee employment to bargaining unit members during the life of the CBA, a hallmark of a no-layoff job security clause. Respondent further asserts that minimum staffing requirements set forth in … the CBA pertain to health and safety concerns and are properly the subject of arbitration.

… [T]he CBA “does not purport to guarantee a[n] [officer] his or her employment while the CBA is in effect, nor does it prohibit layoffs” … . “It also does not protect officers ‘from abolition of their positions due to budget stringencies'” … . … [T]he CBA only sets forth “minimum staffing on particular shifts” … . Matter of City of Ogdensburg (Ogdensburg Firefighters Assn. Local 1799, A.F.L., C.I.O., I.A.F.F), 2022 NY Slip Op 00237, Third Dept 1-13-22

 

, , ,

CUSTODY MATTERS ARE NOT SUBJECT TO ARBITRATION, DESPITE A PROVISION TO THAT EFFECT IN THE STIPULATION OF SETTLEMENT (SECOND DEPT).

The Second Department, reversing Supreme Court, determined: (1) despite the stipulation calling for arbitration, custody matters are not subject to arbitration; and (2) upon remittal the court must determine whether New York has jurisdiction and, if so, whether New York is an inconvenient forum. Plaintiff is a citizen of the US and defendant is a citizen of Israel. The parties lived together in New York:

The Supreme Court erred in declining to exercise jurisdiction over the parties’ custody/parental access disputes on the basis that their stipulation of settlement, which was incorporated but not merged into their judgment of divorce, contained an arbitration clause … . “Disputes concerning child custody and visitation are not subject to arbitration as ‘the court’s role as parens patriae must not be usurped'” … .

Moreover, since the Supreme Court has made previous custody determinations concerning the parties’ children, the court, prior to determining whether it has subject matter jurisdiction, must first determine whether the defendant and the children have a significant connection with New York and whether there is substantial evidence in New York … . … If, upon remittal, the court determines … that it retains exclusive, continuing jurisdiction over the custody and parental access issues, it may exercise that jurisdiction, or it may decline to do so if it determines … that New York is an inconvenient forum … . Matsui v Matsui, 2021 NY Slip Op 06843, Second Dept 12-8-21

 

, ,

THE MOTION TO DISMISS THE ARBITRATION IN THIS ACTION ALLEGING NONPAYMENT FOR CONSTRUCTION WORK SHOULD NOT HAVE BEEN GRANTED; THE ARBITRATOR RULES ON PAYMENT FOR LABOR AND MATERIALS; COURTS RULE ON THE VALIDITY OF MECHANIC’S LIENS (FIRST DEPT).

The First Department noted that an arbitrator’s ruling on the value of labor an materials is conclusive for all parties, but it is not conclusive on the validity of the underlying mechanic’s lien itself. Here the contactor, Flowcon, filed mechanic’s lens alleging defendant, Andiva, failed to pay for construction work on Andiva’s townhouse. The construction contract required arbitration and granted the arbitrator broad powers. Supreme Court granted Andiva’s motion to dismiss the arbitration and the First Department reversed, compelled arbitration and stayed the LIen Law counterclaims:

The AAA’s Construction Industry Arbitration Rules provide that the arbitration tribunal shall rule on its own jurisdiction, including any objections with respect to the existence, scope, or validity of the arbitration agreement. Thus, the threshold issue of the arbitrability of Flowcon’s claims alleging nonpayment is one for the arbitrator, not the courts, particularly given the parties’ broad arbitration clause … . To the extent Andiva argues that arbitration would usurp the court’s “gatekeeper” role of ruling upon the validity of a lien and undermine the public policy underlying the remedies afforded a lienee under Lien Law §§ 39 and 39-a since its allegation of lien exaggeration would be effectively resolved by an arbitrator rather than a court, the argument is unavailing. This Court has held that an arbitrator’s decision as to the value of labor and materials is conclusive as to all parties to the arbitration but not conclusive as to the validity of the mechanic’s lien itself … . Flowcon, Inc. v Andiva LLC, 2021 NY Slip Op 06756, First Dept 12-2-21

 

, ,

THE ARBITRATOR EXCEEDED HIS AUTHORITY UNDER THE COLLECTIVE BARGAINING AGREEMENT BY DISMISSING TWO CHARGES BECAUSE OF THEIR PUPORTED FACIAL DEFICIENCIES AND FAILING TO ASSESSS THE EVIDENCE IN SUPPORT OF THE CHARGES (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the arbitrator’s dismissal of two of the disciplinary charges against a corrections officer (Norde) based solely on alleged defects in the charges, as opposed to the relevant evidence, exceeded the arbitrator’s authority under the collective bargaining agreement (CBA):

… [R]espondent complied with the CBA by pleading in the notice of discipline that the exception [to the usual time limits] applied, and by citing and quoting the language of the specific criminal statute that Norde had allegedly violated; respondent would then need to prove the elements of that statute at the hearing to establish the basis of the timeliness exception … . Accordingly, by requiring respondent to prove the underlying crime in the notice to support the CBA’s time exception, the arbitrator essentially added a term to the CBA and, thus, exceeded his authority … . …

… [T]he arbitrator modified the CBA and exceeded his authority by dismissing the first two charges as facially deficient due to an alleged lack of particularization in the notice of discipline. As the charges in the notice were sufficiently stated, the arbitrator should have rendered a determination as to Norde’s guilt based on the evidence presented at the hearing. Matter of New York State Corr. Officers & Police Benevolent Assn., Inc. (New York State Dept. of Corr. & Community Supervision), 2021 NY Slip Op 03504, Third Dept 6-3-21

 

, , , , ,

THE ARBITRATION AWARD IS VALID EVEN IF BASED ON AN ERROR OF LAW OR FACT; THE FAILURE TO PROVIDE A LETTER OF ENGAGEMENT DID NOT PRECLUDE THE ATTORNEY’S ACTION FOR BREACH OF CONTRACT; CPLR 5225 DOES NOT REQUIRE A SPECIAL PROCEEDING TO ENFORCE THE JUDGMENT (FIRST DEPT).

The First Department, reversing Supreme Court, determined (1) the arbitrator’s award was valid even if an error of law or fact was made; (2) the failure to provide a letter of engagement did not preclude the petitioner-attorney’s action for breach of contract; (3) petitioner was not required to commence a special proceeding to enforce the judgment; (4) the motions to enforce the judgement do not violate the Commercial Division rules:

… [E]ven if the arbitrator had made an error of law or fact in concluding that respondents had breached the retainer agreements, this alone would not justify vacating the award … . …

… [T]he court improperly denied the motions [to enforce the judgment] based upon its finding that petitioner had failed to commence a separate special proceeding to enforce the judgment. The language of CPLR 5225 clarifies that the court had jurisdiction to resolve the turnover motion. While CPLR 5225(a) provides that a judgment creditor seeking turnover of money or personal property “in possession or custody” of the judgment debtor does so “[u]pon motion of the judgment creditor,” CPLR 5225(b) provides that a judgment creditor seeking turnover of money or personal property in a third party’s possession or custody does so “[u]pon a special proceeding commenced by the judgment creditor” … Given that petitioner brought the motions against the judgment debtor as opposed to a third party, it was not required to commence a separate proceeding. Matter of Gibson, Dunn & Crutcher LLP v World Class Capital Group, LLC, 2021 NY Slip Op 03252, First Dept 5-20-21

 

,

THE MILD PENALTY IMPOSED BY THE ARBITRATOR ON AN EMPLOYEE WHO SEXUALLY HARASSED A FELLOW EMPLOYEE VIOLATED PUBLIC POLICY; MATTER REMITTED FOR IMPOSITION OF A PENALTY BY A NEW ARBITRATOR (THIRD DEPT).

The Third Department determined the mild penalty imposed by the arbitrator in this place-of-employment sexual harassment case violated public policy. The matter was remitted for imposition of a penalty by a different arbitrator. The employee, Dominie, committed several egregious acts of sexual harassment targeting another employee which led to his pleading guilty to harassment second degree. The arbitrator reinstated Dominie’s employment without conditions:

… [T]he situation here does not involve a single act of misconduct as in Barnard College. In defined contrast, we have a series of four separate, escalating and outrageous sexual harassment incidents. The events are particularly troublesome considering that Dominie engaged in annual sexual harassment training since 2013 and, when confronted by his supervisors after the two January 2017 incidents, promised not to re-offend. The events that followed were even more egregious and rise to the level of criminal conduct, as memorialized in Dominie’s guilty plea to the harassment charge. Given the extremely inappropriate nature of Dominie’s conduct, we conclude that the arbitrator’s decision violates public policy. The award fails to account for the rights of other employees to a non-hostile work environment and conflicts with the employer’s obligation to eliminate sexual harassment in the workplace … . The fact that the victimized coworker no longer worked in the office is hardly a mitigating factor. Nor is the penalty consistent with the arbitrator’s “significant concern” that Dominie failed to acknowledge his own wrongdoing. As such, we find that Supreme Court properly vacated the award as violative of the public policy prohibiting sexual harassment. We also conclude that the court was authorized to remit the matter to a different arbitrator for the imposition of a new penalty (see CPLR 7511 [d]). Matter of New York Off. for People with Dev.al Disabilities (Civil Serv. Empls. Assn., Inc., Local 1000, AFSCME, AFL-CIO), Third Dept 4-29-21

 

, ,

THE ARBITRATORS’ AWARD IN THIS RELIGIOUS DIVORCE PROCEEDING WAS NOT INVALID BECAUSE THE ARBRITRATORS DID NOT STATE THE REASONS FOR THE AWARD, AND THE AWARD WAS NOT INDEFINITE AND NONFINAL; SUPREME COURT SHOULD NOT HAVE VACATED THE AWARD (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the arbitration award should not have been vacated. The award, issued by a rabbinical tribunal in a religious divorce proceeding, required the respondent to arrange for the religious divorce (a Get) and required petitioner to accept the religious divorce. A lump sum award and maintenance of $10,000 per month was to be held in escrow until the Get is accepted. Supreme Court held the award was indefinite or nonfinal and the arbitrators failed to state the reasons for the award:

Contrary to the conclusion of the Supreme Court, the arbitrators were not required to give reasons for their arbitration award … . Further, the arbitration award did not leave the parties unable to determine their rights and obligations, resolved the controversy before the arbitrators, and did not create a new controversy; therefore, the arbitration award was not indefinite or nonfinal for purposes of CPLR 7511 … . The respondent’s obligation to pay maintenance continued because he failed to arrange for issuance of a Get and termination of the marriage—not because the terms of the arbitration award were not definite. Matter of Rokeach v Salamon, 2021 NY Slip Op 02393, Second Dept 4-21-21

 

,

THE CONTRACT WAS BETWEEN CORPORATIONS IN DIFFERENT STATES, THEREFORE INTERSTATE COMMERCE WAS IMPLICATED AND THE FEDERAL ARBITRATION ACT (FAA) APPLIED; THE CONTRACT PROPERLY PROVIDED THAT THE ARBIRTRATOR, NOT A COURT, WILL DECIDE GATEWAY ISSUES OF ARBITRABILITY (FIRST DEPT).

The First Department, reversing Supreme Court, determined that the Federal Arbitration Act (FAA) applied to the contract between corporations from different states and the contract properly provided that gateway issues of arbitrability are to be decided by the arbitrator, not the court:

Where “a contract containing an arbitration provision ‘affects’ interstate commerce, disputes arising thereunder are subject to the FAA” … . The surety agency agreement here between corporations from different states gave rise to a finding of interstate commerce and was subject to the FAA … . Although “a New York court, applying the Federal Arbitration Act, limits its inquiry to whether there is a valid agreement to arbitrate the particular dispute” and all other questions are for the arbitrator … , the parties can agree to arbitrate gateway issues of arbitrability … .

Applying principles of New York state contract law, based on the choice of law provision governing the surety agency agreement … , and reading the contractual clauses together in context … , the provision that “[i]f a dispute or disagreement arises in connection with this Agreement, including a dispute or disagreement as to its formation or validity, such dispute or disagreement shall be submitted to arbitration,” refers any disputes over the validity or formation of the arbitration provision in question to arbitration. Accordingly, the matter here should proceed to arbitration. Matter of Bergassi Group LLC v Allied World Ins. Co., 2021 NY Slip Op 02265, First Dept 4-13-21

 

Categories

Sign Up for the Mailing List to Be Notified When the Site Is Updated.

  • This field is for validation purposes and should be left unchanged.

Copyright © 2026 New York Appellate Digest, Inc.
Site by CurlyHost | Privacy Policy