[*1]
Matter of Middletown Enlarged City Sch. Dist. v Schwartz
2013 NY Slip Op 50666(U) [39 Misc 3d 1219(A)]
Decided on April 22, 2013
Supreme Court, Part-orange County
Bartlett, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 22, 2013
Supreme Court, Part-orange County


In the Matter of Middletown Enlarged City School District, Petitioner,

against

Gregory Schwartz, Respondent.




2257/2013

Catherine M. Bartlett, J.



Upon the foregoing papers it is ORDERED that the petition is disposed of as follows:

Petitioner commenced a special proceeding to vacate an arbitration award wherein respondent was temporarily suspended without pay and requirement to attend an anger management class. Petitioner seeks to overturn that award, essentially advocating that respondent be terminated. Respondent is a teacher in the Middletown Enlarged City School District. On May 20, 2011, respondent engaged in a tirade, by all accounts, yelling, cursing and exhibiting physical manifestations of anger which included the kicking of a garbage pail and the rasing of a chair above his head and smashing it to the ground. Respondent believed that the school's administration was precluding him from teaching summer school, having felt entitled to that teaching position in addition to his regular pay, for which he would have received approximately $5,000.00.

Petitioner brings this Article 78 proceeding to effectively annul the hearing officer's [*2]March 1, 2013 decision to suspend respondent without pay through the balance of this school year and requiring respondent to attend anger management classes. Petitioner believes this "punishment did not fit the crime", instead advocating for respondent's termination. Petitioner asserts that the hearing officer's decision was irrational given the sworn testimony of various witnesses to respondent's behavior, and that the "shockingly lenient penalty" was enough to shock the court's conscience and violated public policy.

Respondent takes the position that the hearing officer's decision to suspend without pay and require anger management training was well within the bounds of his decision making authority which is not to be upset by the Court.

Education Law § 3020-a(5) states in pertinent part "[n]ot later than ten days after receipt of the hearing officer's decision, the employee or the employing board may make an application to the New York state supreme court to vacate or modify the decision of the hearing officer pursuant to section seventy-five hundred eleven of the civil practice law and rules. The court's review shall be limited to the grounds set forth in such section." "Where, as here, parties are subject to compulsory arbitration, the award must satisfy an additional layer of judicial scrutiny—it must have evidentiary support and cannot be arbitrary and capricious' (Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 NY2d 214, 223, 652 N.Y.S.2d 584, 674 N.E.2d 1349 [1996] )." City Sch. Dist. of City of New York v McGraham, 17 NY3d 917, 919 (2011). CPLR § 7511(b) stated in pertinent part:

1. The award shall be vacated on the application of a party who either participated in the arbitration or was served with a notice of intention to arbitrate if the court finds that the rights of that party were prejudiced by: (I) corruption, fraud or misconduct in procuring the award; or (ii) partiality of an arbitrator appointed as a neutral, except where the award was by confession; or (iii) an arbitrator, or agency or person making the award exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made; or (iv) failure to follow the procedure of this article, unless the party applying to vacate the award continued with the arbitration with notice of the defect and without objection.

Under CPLR 7511, the court may scrutinize an arbitration award only on the narrow grounds specified in subdivision (b) and only upon the application of a party. The list of potential objections in CPLR 7511(b) and (c) is exclusive. See, Geneseo Police Benevolent Ass'n, Council 82 v Village of Geneseo, 91 AD2d 858 (4th Dep't 1982), affirmed 59 NY2d 726 (1983).

An arbitration award will not be vacated "unless it is violative of a strong public policy, is totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power" (Matter of Town of Callicoon [Civil Serv. Empls. Assn., Town of Callicoon Unit], 70 NY2d 907, 909, 524 N.Y.S.2d 389, 519 N.E.2d 300; [*3]see, Matter of Silverman [Benmor Coats], 61 NY2d 299, 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261); and every reasonable intendment is indulged in favor of an award (see, Matter of Mencher [Geller & Sons], 276 App.Div. 556, 565, 96 N.Y.S.2d 13). The burden of proving that an arbitrator's ruling "constituted misconduct rests with [the] respondent and must be met by clear and convincing proof" (Matter of S. Wiener Furniture Co. [Kingston City Schools Consol.], 90 AD2d 875, 456 N.Y.S.2d 474).


Matter of Thompson (S.L.T. Ready-Mix, Div. of Torrington Indus. Inc.), 245 AD2d 911, 912-13 (3rd Dept. 1997). "An arbitrator's refusal to receive evidence is not a sufficient basis to vacate an award; rather it must be shown that the excluded evidence was material and relevant to the issues present in the proceeding (see, Matter of Solartechnik [Besicorp Group], 227 AD2d 94, 99, 652 N.Y.S.2d 654, lv. granted 90 NY2d 810, 665 N.Y.S.2d 401, 688 N.E.2d 257." Matter of Thompson, supra , 245 AD2d at 913. The Court will not concern itself "with the form or sufficiency of the evidence before the arbitrators or some departure from formal technicalities in the absence of a clear showing that statutory grounds exist for vacatur of the award (see, generally, 5 Am.Jur.2d, Arbitration and Award, s 146 et seq.; Matter of Gerli & Co. v. Heineman Corp., 258 NY 484, 180 N.E. 243)." Korein v Rabin, 29 AD2d 351, 356, 287 N.Y.S.2d 975, 980 (1st Dept. 1968). One of the grounds specified by CPLR 7511(b)(1)(iii) for vacating an award is that the arbitrator "exceeded his power." Inasmuch as an arbitrator's power under a broadly worded arbitration clause is virtually unlimited, the "excess of power" category rarely provides a successful basis for vacatur.

Unless the parties' agreement provides otherwise, an arbitrator need not apply the rules of evidence, and he is not bound by principles of substantive law. See, Silverman v Benmor Coats Inc., 61 NY2d 299, 308 (1984). "He may do justice as he sees it, applying his own sense of law and equity to the facts as he finds them to be." Id. The remedy that the arbitrator fashions lies in his discretion, it may exceed that which was requested by the parties, and it need not conform to the traditional relief that a court would grant. Board of Education of Central School District No.1 of the Towns of Niagara, Wheatfield, Lewiston and Cambria v Niagara-Wheatfield Teachers Association, 46 NY2d 553, 557 (1979).

Petitioner asserts that the arbitrator's award was violative of public policy. An award will be vacated on public policy grounds only where such policy "prohibit[s], in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator." Sprinzen, supra, 46 NY2d at 631. An award will not be vacated on public policy grounds unless the violation of public policy is apparent on the face of the award: "[C]ourts must be able to examine an arbitration agreement or an award on its face, without engaging in extended fact-finding or legal analysis, and conclude that public policy precludes its enforcement." Sprinzen, supra, 46 NY2d at 631. See also, Town of Haverstraw v Rockland County Patrolmen's Benevolent Ass'n, 65 NY2d 677 (1985). The Court of Appeals has reiterated that the public policy exception to arbitration is "extremely narrow," especially in the case of public employment collective bargaining agreements. United Federation of Teachers, Local 2, AFT, AFL-CIO v. Board of [*4]Education of the City School District of the City of New York, 1 NY3d 72 (2003) (no violation of public policy where arbitrator's award overturned school board's arbitrary and capricious application of teacher selection process).

As noted by the Court of Appeals:

Courts will only intervene in the arbitration process in those "cases in which public policy considerations, embodied in statute or decisional law, prohibit, in an absolute sense, particular matters being decided or certain relief being granted by an arbitrator" (Matter of Sprinzen [Nomberg], 46 NY2d 623, 631, 415 N.Y.S.2d 974, 389 N.E.2d 456 [1979] ). It cannot be disputed *920 that the State has a public policy in favor of protecting children, **899 but this broad, well-settled principle is not the type of absolute prohibition from arbitrating a "particular" matter necessary to invoke the public policy exception and to overturn the arbitral resolution.

City Sch. Dist. of City of New York v McGraham, 17 NY3d at 919-20.

" When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists' (Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 AD3d at 1013, 879 N.Y.S.2d 568; see Matter of Berenhaus v. Ward, 70 NY2d 436, 443—444, 522 N.Y.S.2d 478, 517 N.E.2d 193; Matter of Tasch v. Board of Educ. of City of NY, 3 AD3d 502, 503, 770 N.Y.S.2d 430)." Powell v Bd. of Educ. of Westbury Union Free Sch. Dist., 91 AD3d 955 (2nd Dept. 2012). " Incantations of public policy' may not be advanced to overturn every arbitration award that impairs the flexibility of management of a school district. Every collective bargaining agreement involves some relinquishment of educational control by a school district. Only when the award contravenes a strong public policy, almost invariably involving an important constitutional or statutory duty or responsibility, may it be set aside." Port Jefferson Station Teachers Ass'n, Inc. v Brookhaven-Comsewogue Union Free Sch. Dist., 45 NY2d 898, 899 (1978).

""The doctrine is well settled, that neither the Appellate Division nor the Court of Appeals has power to upset the determination of an administrative tribunal on a question of fact; *** the courts have no right to review the facts generally as to weight of evidence, beyond seeing to it that there is substantial evidence."' Matter of Pell v Board of Education, 34 NY2d 222, 230 (1974). Once it is determined that there is substantial evidence to support an administrative body's determination, the sanction imposed by that body will not be set aside unless the measure of punishment is " so disproportionate to the offense, in light of all the circumstances, as to be shocking to one's sense of fairness."' Purdy v Kreisberg, 47 NY2d at 354, 360 (1979), citing, Pell, 34 NY2d at 233.

In Purdy, the Court explained that the limited scope of review accorded courts in administrative matters is based on a practical, but nonetheless compelling, reason: "[In] such matters the administrative official or agency is assumed to possess not only a special proficiency and experience which are not always to be found in the courts, but also an alertness to and a comprehension of the complexity and sensitiveness of personnel administration in continuing intraorganizational relationships". Purdy, citing, Matter of Ahsaf v Nyquist, 37 NY2d 182, 184-185 (1975).

"The courts cannot interfere [with the determination of an administrative tribunal on a question of fact] unless there is no rational basis for the exercise of discretion or the action complained of is arbitrary and capricious." Pell, 34 NY2d at 231.

Just as the court's authority to review an administrative factual determination is limited, so too is the court's license to review the arbitration award assessed by the hearing officer. The courts are only authorized to examine an arbitration award on its face, without engaging in extended fact finding or legal analysis, and conclude that public policy precludes its enforcement. "This is so because, as has been previously noted, an arbitrator is free to apply his own sense of law and equity to the facts as he has found them to be in resolving a controversy." An arbitrator's paramount responsibility is to reach an equitable result, and the courts should not assume the role of overseers to mold the award to conform to their sense of justice. Matter of Sprinzen [Nomberg], 46 NY2d 623, 629 (1979).

In the instant case, upon review of the arbitration decision on its face, it cannot be said as a matter of law that public policy precludes its enforcement. As the Court of Appeals aptly stated in McGraham:

[T]he award [is not] arbitrary and capricious or irrational. The hearing officer engaged in a thorough analysis of the facts and circumstances, evaluated respondent's credibility and arrived at a reasoned conclusion that a 90—day suspension and reassignment was the appropriate penalty. It was rational, under the circumstances, for the hearing officer to find that respondent's actions constituted serious misconduct, but that she was remorseful and her actions were unlikely to be repeated, such that termination was not mandated. That reasonable minds might disagree over what the proper penalty should have been does not provide a basis for vacating the arbitral award or refashioning the penalty.


City Sch. Dist. of City of New York v McGraham, 17 NY3d at 920. In this case, the hearing officer determined that an effective suspension for almost four months without pay plus remedial action in the form of required anger management training was the appropriate penalty. There is no proof that respondent previously or subsequently engaged in similar conduct. Respondent expressed his remorse and complied with the penalties imposed. The fact that petitioner and others disagree with the hearing officer's final determination (after hearing the witnesses testify before him), does not empower this Court to dismantle the process. Petitioner and respondent (through his union) entered into mandatory arbitration. It is up to the participants to live with the decisions of the hearing officer despite one side's dislike of the outcome absent a complete disregard for the evidence presented. Petitioner failed to present sufficient evidence that the hearing officer's decision rose to such a level as to warrant judicial interference. Therefore, petitioner's application is denied in its entirety. As such, if an application to vacate or modify the award is denied, the court is required automatically to confirm the award. This eliminates the need for the party who is opposing such application to cross-move for confirmation. See, e.g., White v. Department of Law, 184 AD2d 229, 230 (1st Dep't 1992), appeal denied 80 NY2d 759. The arbitration award is therefore confirmed. [*5]The foregoing constitutes the decision and order of this Court.

Dated: April 22, 2013E N T E R

Goshen, New York

__________________________

HON. CATHERINE M. BARTLETT

A.J.S.C.