Calendar Date: March 23, 2016
Mathias Wexler Friedman LLP, Albany (Sarah M. Coligan of
counsel), for appellants-respondents.
T. Schneiderman, Attorney General, Albany (Julie M. Sheridan
of counsel), for respondents-appellants.
Before: Peters, P.J., Lynch, Rose and Aarons, JJ.
MEMORANDUM AND ORDER
appeal (upon remittal from the Court of Appeals) from a
judgment of the Supreme Court (McNamara, J.), entered March
16, 2015 in Albany County, which, in a proceeding pursuant to
CPLR article 78 and 7503, among other things, converted the
proceeding into a proceeding pursuant to CPLR 7511 to confirm
an arbitration award.
Norman Woods was employed by respondent State University of
New York (hereinafter SUNY) and was a member of a bargaining
unit represented by petitioner New York State Correctional
Officers and Police Benevolent Association, Inc. In 2013,
Woods was placed on probation following an arbitration
conducted pursuant to a collective bargaining agreement. In
2014, SUNY summarily terminated Woods from his probationary
position following a negative performance evaluation.
Petitioners commenced this proceeding seeking to compel
arbitration pursuant to CPLR 7503 or, alternatively, to
vacate and annul the termination determination pursuant to
CPLR article 78. Supreme Court converted the proceeding to an
application to confirm the 2013 arbitration award and
directed the parties to seek clarification of the award. On
appeal, this Court, with two justices dissenting, reversed
and granted the petition to compel arbitration (139 A.D.3d
1322 ). The Court of Appeals thereafter reversed this
Court's order and remitted the matter "for
consideration of the facts and issues raised but not
determined on the appeal" (28 N.Y.3d 1140, 1141 ).
the parties agree, and we concur, that Supreme Court erred in
treating the petition as an application to confirm the 2013
award and remitting the matter to the arbitrator for
clarification. "[A]n arbitrator's authority extends
to only those issues that are actually presented by the
parties. Thus, an arbitrator may not reconsider an award -
regardless of whether the request is couched as a
clarification or a modification - if the matter was not
previously raised in arbitration" (Matter of Joan
Hansen & Co., Inc. v Everlast World's Boxing
Headquarters Corp., 13 N.Y.3d 168, 173  [internal
citations omitted]). Here, at the commencement of the 2013
arbitration, the parties stipulated to allow the arbitrator
to decide whether Woods was guilty of the past misconduct as
alleged and, if so, what the appropriate penalty should have
been. The arbitrator was not asked to interpret any term in
the contract or make a ruling that would define or affect the
employer/employee relationship going forward. No party sought
to modify, confirm or vacate the award after it was issued
(see CPLR 7509, 7511). Rather, petitioners sought an
order to compel respondents to arbitrate the 2014
termination. Accordingly, Supreme Court should not have
remitted the issue for resolution by the arbitrator who
decided the 2013 disciplinary action.
petitioners allege that respondents acted in bad faith when
they decided to terminate Woods' employment. A
probationary employee may challenge a termination only by
demonstrating that the dismissal was in bad faith or done for
an improper reason (see Matter of Swinton v Safir,
93 N.Y.2d 758, 763 ; Matter of Shabazz v New York
State Dept. of Correctional Servs., 63 A.D.3d 1253, 1254
). As such, a probationary employee is not necessarily
entitled to a hearing or even an explanation unless there is
proof that the discharge was unconstitutional or violated the
law (see Matter of Hanson v Crandell, 141 A.D.3d
982, 985 ; Matter of Shabazz v New York State Dept.
of Correctional Servs., 63 A.D.3d at 1254). In order to
successfully challenge his termination, petitioner was
required to submit "proof sufficient to raise a question
of fact as to whether the dismissal was due to causes
unrelated to work performance and/or improperly
motivated" (Matter of Shabazz v New York State Dept.
of Correctional Servs., 63 A.D.3d at 1254 [internal
quotation marks and citation omitted]). Petitioners did not
offer such proof here (see id.; Matter of Scott
v Workers' Compensation Bd. of State of N.Y., 275
A.D.2d 877, 878 ). Moreover, respondents'
submissions, which are not disputed, confirm that Woods was
terminated for a valid reason, that is, poor work performance
(see Matter of Davis v New York State Div. of Military
& Nav. Affairs, 291 A.D.2d 778, 779 ).
Accordingly, we find that Supreme Court should have dismissed
petitioners' second cause of action (see Matter of
Shabazz v New York State Dept. of Correctional Servs.,
63 A.D.3d at 1254; Matter of Mahoney v Mills, 29
A.D.3d 1043, 1045 , lv denied 7 N.Y.3d 708');">7 N.Y.3d 708
Peters, P.J., Rose and Aarons, JJ., concur.
that the judgment is reversed, on the law, without costs, ...