Sept. 28, 2021
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON. FRANK NERVO
Justice
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THOMAS RIVERA, LOCAL 100, TRANSPORT WORKERS
UNION OF AMERICA
Plaintiff,
-v-
NEW YORK CITY TRANSIT AUTHORITY,
Defendant.
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PART IAS PART IV
INDEX NO. 650755/2021
MOTION DATE 04/22/2021
MOTION SEQ. NO. 001
DECISION + ORDER ON
MOTION
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
stipulation.
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
approval.
(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@
nycourts.gov. 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.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Sept. 28, 2021
Hon. Frank P. Nervo, J.S.C.