IN THE MATTER OF ARBITRATION BETWEEN TOWN OF GREECE, PETITIONER-APPELLANT, AND THE UNIFORMED PATROLMEN'S ASSOCIATION OF THE GREECE POLICE DEPARTMENT, ON BEHALF OF MICHAEL HAUGH, RESPONDENT-RESPONDENT.
BEACH PLLC, PITTSFORD (KYLE W. STURGESS OF COUNSEL), FOR
TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (MICHAEL
F. GERACI OF COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND
from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered October 28, 2015 in a proceeding
pursuant to CPLR article 75. The order denied the petition
for a stay of arbitration.
hereby ORDERED that the order so appealed from is unanimously
affirmed without costs.
Petitioner commenced this proceeding seeking a permanent stay
of arbitration pursuant to CPLR 7503 (b) after respondent
filed a demand for arbitration concerning disciplinary
charges against former Town of Greece police officer Michael
Haugh. Supreme Court denied the petition, and we affirm.
reject petitioner's contention that its newly-adopted
disciplinary rules and regulations applied retroactively to
this disciplinary matter. In August 2013, petitioner provided
Haugh with written notice of the charges and specifications
of misconduct and, in reliance upon the provisions of the
collective bargaining agreement (CBA) between petitioner and
respondent, Haugh elected to waive his rights under Civil
Service Law § 75 and to proceed under the grievance
procedure set forth in the CBA. On October 1, 2013,
respondent requested that the matter proceed to Step 3 of the
grievance procedure, which provided for arbitration. On
December 17, 2013, the Town Board of petitioner adopted a
resolution to amend the disciplinary rules and regulations
for petitioner's Police Department, which superseded the
grievance provisions of the CBA and applied to all
prospective police disciplinary matters. On November 19,
2014, respondent served the demand for arbitration.
general presumption against retroactive application of
statutes is... designed... to prevent impairment of vested
rights, " such as those derived from a contractual
agreement (Rooney v City of Long Beach, 42 A.D.2d
34, 39, appeal dismissed 33 N.Y.2d 897). A
legislative "amendment will have prospective application
only, unless its language clearly indicates that a contrary
interpretation is to be applied" (Matter of Deutsch
v Catherwood, 31 N.Y.2d 487, 489-490; see
McKinney's Cons Laws of NY, Book 1, Statutes § 51
[b]; Becker v Huss Co., 43 N.Y.2d 527, 539).
Although an "exception is generally made for so-called
remedial legislation or statutes dealing with procedural
matters" (Becker, 43 N.Y.2d at 540),
"statutes affecting substantive rights and liabilities
are presumed to have only prospective effect"
(Bennett v New Jersey, 470 U.S. 632, 639).
we conclude that Haugh's contractual right to proceed
under the CBA's arbitration provision had vested before
petitioner adopted its new rules and regulations (see
generally Rooney, 42 A.D.2d at 39). The new rules and
regulations altered Haugh's substantive contractual
remedy by removing any prospect of arbitration (see
generally Matter of Schlaifer v Sedlow, 51 N.Y.2d 181,
185), and are therefore presumed to have only prospective
effect (see generally Bennett, 470 U.S. at 639).
the new rules and regulations do not expressly set forth the
date on which they went into effect. Even assuming, arguendo,
that they were intended to become effective immediately upon
adoption, we conclude that they provide no indication that
they were intended to operate retroactively upon a
disciplinary matter that had commenced prior to their
adoption, had gone through the first two steps of the
CBA's grievance procedure, and was about to proceed to
arbitration (see Brooks v County of Onondaga, 167
A.D.2d 862, 862; see generally Becker, 43 N.Y.2d at
540). Moreover, "there is no indication that the purpose
of the [regulations] was remedial in nature" (Matter
of Yasiel P. [Lisuan P.], 79 A.D.3d 1744, 1745, lv
denied 16 N.Y.3d 710). Petitioner's reliance upon
Matter of Town of Wallkill v Civil Serv. Empls. Assoc.,
Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill
Police Dept. Unit, Orange County Local 836) (19 N.Y.3d
1066) is misplaced inasmuch as, in that case, the Town of
Wallkill enacted its new disciplinary procedures before it
initiated disciplinary action against the police officers
(id. at 1068). Therefore, under the circumstances of
this case, we conclude that the new regulations did not
retroactively supersede the CBA's grievance procedure
with respect to the pending disciplinary matter (see
generally Morales v Gross, 230 A.D.2d 7, 12).
reject petitioner's further contention that the demand
for arbitration is an attempt to challenge the validity of
the new disciplinary rules and regulations and is untimely
because it should have been asserted in a proceeding pursuant
to CPLR article 78, which is subject to a four-month statute
of limitations (see CPLR 217 ). Upon our review
of the record, we conclude that the demand for arbitration
was based upon alleged breaches of the CBA and did not
advance a challenge to the newly ...