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In the Matter of the Arbitration Between

March 16, 2012

IN THE MATTER OF THE ARBITRATION BETWEEN CITY OF OSWEGO,
PETITIONER-APPELLANT, AND AND OSWEGO CITY FIREFIGHTERS ASSOCIATION, LOCAL 2707, RESPONDENT-RESPONDENT.



Appeal from an order of the Supreme Court, Oswego County (Norman W. Seiter, Jr., J.), entered May 5, 2011 in a proceeding pursuant to CPLR article 75.

Matter of Matter of City of Oswego (Oswego City Firefighters Assn., Local 2707)

Decided on March 16, 2012

Appellate Division, Fourth Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.

The order denied the petition and confirmed the arbitration award.

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum: Petitioner, City of Oswego (City), appeals from an order that denied its application seeking to vacate an arbitration award pursuant to CPLR 7511 (b) (1) (iii) and granted the application of respondent, Oswego City Firefighters Association, Local 2707 (Union), improperly denominated as petitioner in the second ordering paragraph in the order on appeal, to confirm the award pursuant to CPLR 7510. In its petition, the City contended that the arbitrator exceeded his authority by rendering an award that was in direct contravention of the Retirement and Social Security Law, the Civil Service Law and the "strong public policies" underlying those laws. We conclude that Supreme Court properly denied the petition and confirmed the award.

The City and the Union were parties to an agreement concerning the employment of firefighters in the City. That agreement was to "be effective as of January 1, 2007, and [to] remain[] in full force and effect" through December 31, 2009. As pertinent to this appeal, section 26.1 of the agreement provided that the City would pay the firefighters' costs in the New York State Police and Fireman's Retirement System (PFRS). In addition, the City agreed to make a Plan 384-d (see Retirement and Social Security Law § 384-d) available to the firefighters.

In 2009, the Legislature enacted Retirement and Social Security Law article 22, which provides in relevant part that all members of the PFRS who joined the PFRS on or after the effective date of article 22 would be required to contribute 3% of their annual wages to the State retirement fund in which they were enrolled (§ 1204). The Legislature, however, created an exception setting forth that, "[n]otwithstanding any provision of law to the contrary, nothing in this act shall limit the eligibility of any member of an employee organization to join a special retirement plan open to him or her pursuant to a collectively negotiated agreement with any state or local government employer, where such agreement is in effect on the effective date of this act and so long as such agreement remains in effect thereafter; provided, however, that any such eligibility shall not apply upon termination of such agreement for employees otherwise subject to the provisions of article twenty-two of the retirement and social security law" (L 2009, ch 504, part A, § 8 [hereafter, Section 8]).

By letter dated January 12, 2010, which was shortly after article 22 took effect, the New York State Retirement System (Retirement System) requested that the City provide copies of any agreements covering PFRS employees that were "in effect" on January 9, 2010. The City responded by enclosing, inter alia, the subject agreement, and noting that it "expired on December 31, 2009" and was "currently being renegotiated." Ultimately, the Retirement System advised the City by letter dated March 2, 2010 that firefighters hired on or after the effective date of article 22 would have to contribute toward their retirements inasmuch as the last contract "expired on December 31, 2009."

In the meantime, the City had hired several firefighters and, when the City refused to contribute toward their respective retirements, the Union filed a grievance and sought arbitration of that grievance. The parties stipulated to the exhibits to be submitted to the arbitrator and left it to the arbitrator to frame the issue. In his "opinion and award," the arbitrator concluded, inter alia, that the firefighters who were hired by the City after the effective date of article 22 were eligible to elect to participate in the 384-d plan provided for in section 26.1 of the agreement and that the City would be required to pay for the employees' contributions as negotiated under the terms of that agreement.

As a preliminary matter, we reject the Union's contention that the City, by participating in the arbitration, waived its contention that the arbitrator exceeded his authority. It is well settled that a party who fails to apply for a stay of arbitration and who participates in the arbitration waives any contention that the claim is not arbitrable or that the arbitrator lacked the power to resolve the question submitted (see Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578, 583; Matter of County of Onondaga [Civil Serv. Empls. Assn.], 248 AD2d 1026; Matter of RRN Assoc. [DAK Elec. Contr. Corp.], 224 AD2d 250). Participation in arbitration, however, does not constitute the waiver of a contention that the arbitrator, during the course of the proceeding or in ...


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