IN THE MATTER OF ARBITRATION BETWEEN CITY OF BUFFALO, PETITIONER-APPELLANT,
BUFFALO POLICE BENEVOLENT ASSOCIATION, INC., RESPONDENT-RESPONDENT.
TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (MARY B.
SCARPINE OF COUNSEL), FOR PETITIONER-APPELLANT.
CREIGHTON, JOHNSEN & GIROUX, BUFFALO (IAN HAYES OF
COUNSEL), FOR RESPONDENT-RESPONDENT.
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND
from an order and judgment (one paper) of the Supreme Court,
Erie County (Deborah A. Chimes, J.), entered November 18,
2015 in a proceeding pursuant to CPLR article 75. The order
and judgment, among other things, denied the petition to
vacate an arbitration award.
hereby ORDERED that the order and judgment so appealed from
is unanimously affirmed without costs.
Petitioner appeals from an order and judgment denying its
petition seeking vacatur of an arbitration award, which
determined that petitioner had violated the terms of the
subject collective bargaining agreement (CBA) and awarded
back pay to petitioner's employee.
31, 2012, petitioner terminated its employee, a police
officer with the City of Buffalo Police Department, upon
learning from federal authorities that the officer had
allegedly confessed to having operated a marijuana "grow
operation" prior to and after his becoming an officer.
As relevant here, the Buffalo Police Commissioner
(Commissioner) served notice of the charges on the officer
and then promptly terminated him prior to holding a
12.1 (A) of the CBA provides that "a permanent employee
shall not be removed or otherwise subjected to any
disciplinary penalty provided in [Article XII] except for...
misconduct or for committing a felony or any crime involving
moral turpitude, and then only after a hearing upon
stated charges " (emphasis supplied). Dismissal-one
of the disciplinary actions available under the terms of the
CBA-may be accomplished only after certain procedures are
followed: The employee must be served with a written copy of
the charges, after which the employee has 10 days to respond
in writing and serve the response on the Commissioner. Within
10 days of receipt of the answer, the Commissioner must
conduct an informal conference with the employee concerning
the charges. At the conference, the employee may call
witnesses to testify on his behalf. At that point, the
Commissioner has the authority to dismiss or to withdraw the
charges, or to accept a plea of guilty; if the Commissioner
does not take any of the aforementioned actions, a formal
hearing must be conducted before an impartial hearing
officer. At the formal hearing, the party bringing the
charges bears the burden of proving them. The hearing officer
must then make a record of the hearing and set forth findings
and recommendations for referral to the Commissioner for his
review and decision.
after the officer's termination, respondent filed a
grievance on behalf of the officer, asserting that petitioner
had violated Article XII of the CBA by summarily terminating
the officer without following the aforementioned due process
procedures. After the parties took the required procedural
steps in an attempt to reach settlement, the matter was
submitted to an impartial arbitrator for consideration of two
issues, namely, whether petitioner violated the terms of the
CBA and, if so, the appropriate remedy. The parties agreed
that the factual record would consist of an affidavit from
the Commissioner setting forth details of the federal
criminal investigation and the Commissioner's reason for
terminating the officer. Respondent did not concede the
underlying facts in the Commissioner's affidavit,
including, as relevant here, the Commissioner's averment
that federal authorities had informed him that the officer
had confessed to criminal activity.
arbitrator determined that petitioner had violated the
"very clear procedure" delineated in the CBA and
awarded the officer back pay. Petitioner commenced the
instant CPLR article 75 proceeding to vacate the arbitration
award, asserting that it is against public policy and
irrational. Respondent filed an answer, and Supreme Court
confirmed the award. On appeal, petitioner contends that the
arbitration award violates a strong public policy and/or was
irrational (see CPLR 7511 [b]  [iii]; Matter
of Kowaleski [New York State Dept. of Corr. Servs.], 16
N.Y.3d 85, 90-91). We conclude that petitioner failed to meet
its " heavy burden' " of demonstrating that the
award should be vacated on either ground (Matter of
Rochester City Sch. Dist. [Rochester Assn. of
Paraprofessionals], 34 A.D.3d 1351, 1351, lv
denied 8 N.Y.3d 807; see Matter of New York City Tr.
Auth. v Transport Workers' Union of Am., Local 100,
AFL-CIO, 6 N.Y.3d 332, 336).
outset, we note that courts of this State "have long
since abandoned their distrust and hostility toward
arbitration as an alternative means for the resolution of
legal disputes, in favor of a policy supporting arbitration
and discouraging judicial interference with either the
process or its outcome" (Matter of New York City Tr.
Auth. v Transport Workers Union of Am., Local 100,
AFL-CIO, 99 N.Y.2d 1, 6, citing Matter of Sprinzen
[Nomberg], 46 N.Y.2d 623, 629). Judicial restraint under
the "narrow" public policy exception is
particularly warranted in arbitrations involving public
employment collective bargaining agreements (id. at
7). A court may vacate an award on that ground "where
strong and well-defined policy considerations embodied in
constitutional, statutory or common law prohibit a particular
matter from being arbitrated or certain relief from being
granted by an arbitrator" (Matter of New York State
Corr. Officers & Police Benevolent Assn. v State of New
York, 94 N.Y.2d 321, 327, citing Sprinzen, 46
N.Y.2d at 631). Vacatur of an award may not be granted
"on public policy grounds when vague or attenuated
considerations of a general public interest are at
stake" (id. at 327).
court properly determined that petitioner's proffered
public policy considerations do not preclude the relief
granted by the arbitrator. Petitioner's arguments in that
regard constitute little more than vague considerations of a
general public interest, which are insufficient to support
vacatur of the award (see id.; see also City
Sch. Dist. of the City of N.Y. v McGraham, 17 N.Y.3d
917, 919-920; Matter of Selman v State of New York Dept.
of Corr. Servs., 5 A.D.3d 144, 144-145).
the underlying facts render the size of the award
distasteful-over two years of back pay for a police officer
who allegedly confessed to committing crimes both before and
after becoming a police officer-"[o]ur [public policy]
analysis cannot change because the facts or implications of a
case might be disturbing, or because an employee's
conduct is particularly reprehensible" (New York
State Corr. Officers & Police Benevolent Assn., 94
N.Y.2d at 327). We note, in this instance, that had the due
process procedures of the CBA been followed, the likelihood
would have been greatly diminished that the officer would
have received as large an award for back pay as he did here.
conclude that the court properly determined that petitioner
failed to establish that the award was irrational, i.e., that
there was " no proof whatever to justify the award'
" (Matter of Rockland County Bd. of Coop. Educ.
Servs. v BOCES Staff Assn., 308 A.D.2d 452, 453; see
Matter of Buffalo Council of Supervisors & Adm'rs,
Local No. 10, Am. Fedn. of Sch. Adm'rs [Board of Educ. of
City Sch. Dist. of Buffalo], 75 A.D.3d 1067, 1068). The
arbitrator considered the narrow issues before him-whether
petitioner violated the CBA and, if so, the appropriate
remedy for such violation. Given the CBA's language, we