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NYCTA v. Local 100 (Grievant) Sept. 28, 2021

Sept. 28, 2021





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INDEX NO. 650755/2021

MOTION DATE 04/22/2021




The following e-filed documents, listed by NYSCEF document number (Motion 001) 2, 13, 16, 17

were read on this motion to/for VACATE - DECISION/ORDER/JUDGMENT/AWARD.

This matter was recently transferred to Part IV.

Petitioner seeks to vacate an arbitration award dismissing him from

respondent's employment on the basis that same is irrational and arbitrary and

capricious, pursuant to CPLR § 75n(b)(1)(iii). Although respondent has not

submitted a memo of law or affidavit in opposition, it has answered the

petition, contending that the award was based upon the evidence before the

arbitrator, is rational, and the arbitrator's findings are otherwise not subject to

judicial review.

CPLR § 75n(b) provides four narrow grounds for vacating an arbitrator's

award: misconduct, bias, excess of power, and procedural defects. Vacatur is

limited to these enumerated grounds (New York City Transit Auth. v. Transport

Workers' Union of America, Local 100, AFL-CIO, 2005, 6 NY3d 332, 336 [2005]).

Petitioner alleges the arbitrator exceeded his power and, thus, the award should

be set aside. An arbitrator acts in excess of their power where the award

violates strong public policy, is irrational, or exceeds enumerated limitations on

the arbitrator's power (In re Kowaleski, 16 NY3d 85 [2010]). Notwithstanding,

where vacatur is sought due to allegations that the arbitrator acted in excess of

authority, "courts are obligated to give deference to the decision of the

arbitrator" (New York City Transit Auth. v. Transport Workers' Union of America,

Local roo, AFL-CIO, 2005, 6 NY3d 332, 336 [2005]). Petitioner seeks vacatur

solely on grounds that the award is irrational. An award is irrational if it

cannot be justified by any proof, but it must be upheld upon even a barely

colorable justification (Wein 0 Malkin LLP v. Helmsley-Spear, Inc., 6 NY3d 471

[2006]; Matter of Eastman Assoc., Inc., 90 AD3d 12.84 [3d Dept 2on]). The

practical effect of this deference and the narrow grounds for vacatur, is that "an

arbitrator's rulings, unlike a trial court's, are largely unreviewable," even where

"an arbitrator has made an error of law or fact" (Matter of Falzone, 15 NY3d 530,

534 [2010]).

Plaintiff was employed as a bus operator for respondent. As relevant

herein, petitioner was previously the subject of discipline for excessive

absenteeism in zo19, and the parties entered into a stipulation whereby

petitioner accepted a 30-day suspension and final warning regarding attendance

violations (NYSCEF Doc. No. 4). The stipulation further provided that future

sustained grievances against petitioner, for 18-months following the stipulation,

would result in dismissal, and the arbitrator at future disciplinary proceedings

would be constrained to impose such discipline (id.).

The instant petition arises from disciplinary action against petitioner

following his failure to appear for his scheduled work shifts from January z7,

2.02.0 to February 12., 2.02.0 without authorization. Thereafter, the parties

appeared at a disciplinary arbitration proceeding where petitioner testified that

his absence was due to his adult daughter's illness, his daughter has a history of

psychiatric illness including a prior suicide attempt, and he notified his

supervisor prior to his shift each day he was absent. After crediting petitioner's

testimony and reviewing petitioner's daughter's doctor's note excusing

petitioner's daughter from work/ school, the arbitrator found that petitioner had

substantiated his daughter's work/ school restriction and circumstances

surrounding same (NYSCEF Doc. No. 11). The arbitrator noted petitioner's

personal circumstances were challenging; however, he found that petitioner

failed to substantiate that these circumstances were an unforeseeable

emergency, as required to excuse his nonappearance at work for 12-consecutivedays

(id.). The arbitrator further noted that petitioner had not sought advance

approval for any of the IZ missed shifts over a two-week period. Thus, the

arbitrator imposed the penalty of dismissal, as required by the parties' prior


While the arbitrator credited petitioner's testimony and found he had

substantiated that his daughter was unable to attend work or school, the

arbitrator did not find this amounted to an unforeseen emergency. The

arbitrator's decision, as relevant here, found:

Rivera's documentation did substantiate that his

daughter has a work/ school restriction. He also

testified credibly that she suffers from depression and

bipolar disorder. So, too, according to Rivera, on some

prior occasion, unspecified, she had attempted suicide.

Although those are challenging personal

circumstances, Rivera did not substantiate an

unforeseeable emergency that prevented him from

coming to work for twelve (12) consecutively scheduled

days in late January and early February zozo without

obtaining, let alone even seeking, any advance


(NYSCEF Doc. No. n).

The arbitrator's award does not provide a factual basis for his

determination that plaintiff's circumstances were not an unforeseeable

emergency. The award found plaintiff's adult daughter suffered from mental

illness and was on a work/ school restriction during the period of petitioner's

absence. The award further found petitioner testified credibly regarding his

daughter's condition and the requirement that she not attend work or school.

However, the award then concluded, without explanation, that petitioner's

adult daughter's medical treatment failed to rise to the level of an unforeseeable

emergency, as required to excuse petitioner's absence from work.

Consequently, the award is internally inconsistent, crediting plaintiff's

testimony that his daughter suffers from mental illness and his daughter's

doctors placed her on a work and school restriction, yet then finding that

plaintiff failed to establish an unforeseen emergency.

To the extent that petitioner contends his witnesses testified that similar

doctor's notes for family members sufficiently substantiated unforeseen

emergencies in other arbitration proceedings, such testimony is de hors the

record, and the Court cannot consider same on this application. Assuming,

arguendo, that such testimony was properly before this Court, it would not

change the Court's determination, as the award itself is internally inconsistent

and fails to provide a factual basis supporting its finding that petitioner failed to

establish an unforeseen emergency .

Accordingly, it is

ORDERED the petition to vacate the award is granted; and it is further

ORDERED that the matter is remanded for a new hearing before a

different arbitrator consistent with the terms of this decision; and it is further

ORDERED that the portion of the petition seeking attorneys' fees is

severed and shall proceed to inquest before this Court on December 7, 2021 at

n:3oam via Microsoft Teams; and it is further

ORDERED that petitioner shall file, via NYSCEF, a detailed recitation

of the fees and costs incurred in bringing this application on or before

November 19, 2021, with a courtesy copy to chambers at SFC-clerkpart4@ Respondent shall likewise file opposition to the amount,

if any, by December 3, 2021, with courtesy copy to chambers at the email above.

Should the parties reach agreement on petitioner's legal fees and costs, they

shall submit a stipulation resolving same to NYSCEF by December 3, 2021 with

courtesy copy via email to chambers; and it is further

ORDERED that any requested relief not addressed herein has

nevertheless been considered and is hereby denied.


Sept. 28, 2021

Hon. Frank P. Nervo, J.S.C.

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