Supreme Court, Erie County, August 17, 2023

New York State Public Employees Federation (Edward J. Greene, Jr. of counsel) for petitioners.

Bond, Schoeneck, & King, LLC (Michael E. Hickey of counsel) for respondents.

"[I]f emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow." (Arizona v [*2]Mayorkas, 598 US —, —, 143 S Ct 1312, 1316 [2023, Gorsuch, J.].)

In this context, trial courts are again tossed into the tempest of COVID-19 litigation and required to review cases challenging{**81 Misc 3d at 326} regulations implemented during the pandemic. However, the issue before this court is rather narrow. Here, pursuant to article 75 of the Civil Practice Law and Rules, petitioners seek to vacate an arbitrator's award which terminated petitioner Wendy Cooper's employment at Roswell Park Cancer Institute, a New York State public benefit corporation formed pursuant to section 3553 of the New York Public Authorities Law (hereinafter Roswell Park).

Petitioner Wendy Cooper was a registered nurse at Roswell Park who was disciplined for her refusal to receive the COVID-19 vaccine pursuant to State Department of Health regulation 10 NYCRR 2.61 (the regulation). As a result of her refusal, she was terminated, and her termination was upheld by an arbitrator. Petitioners contend, inter alia, that the arbitrator ignored judicial precedent that declared the subject regulation unconstitutional, null and void. Respondents assert that Cooper's refusal to comply with the regulation constituted insubordination and they had just cause to terminate her.

Petitioners filed this action, pursuant to article 75, seeking to vacate the arbitrator's decision. Having heard argument, the matter was deemed submitted. The court's decision is as follows.

By now, most are well-acquainted with the COVID-19 pandemic, its causes, steps taken by states and the federal government to combat it, and the many legal challenges made to some of the more burdensome restrictions imposed upon the public. Here, Wendy Cooper was a registered nurse who was employed by Roswell Park since 2016. Respondents concede that she was an excellent employee who, without blemish, complaint, grievance or discipline, performed her responsibilities and duties as a nurse, providing care to patients suffering from cancer.

In 2021, New York Governor Andrew Cuomo issued several executive orders allegedly enacted to combat the effects of the coronavirus. During this time, the legislature ceded most of its constitutional duties to the executive branch in an attempt to rapidly address the fallout from COVID-19. The Governor, acting pursuant to his unchecked powers, shuttered businesses, locked down schools, prohibited church services, prevented family gatherings, forbade funerals, encouraged citizens to{**81 Misc 3d at 327} surveil their neighbors, and restricted outdoor gatherings all in the name of "science" and "safety."^[FN*]

In December 2020 and early January 2021, coronavirus vaccines were made widely available, and individuals were encouraged, in some instances, and others directed to be vaccinated. Citizens and residents were told that the vaccine would prevent contraction as well as transmission of the virus. With this representation, despite scant reliable testing to substantiate these guarantees, individuals en masse registered to receive the vaccine.

In June 2021, Governor Cuomo "rescinded his previous emergency orders related to the COVID-19 pandemic under certain executive orders." (Medical Professionals for Informed Consent v Bassett, 78 Misc 3d 482, 484 [Sup Ct, Onondaga County 2023] [citation omitted].) The [*3]coronavirus state of emergency was effectively over. However, sometime thereafter, the Commissioner of Health for the State of New York, Mary T. Bassett, adopted 10 NYCRR 2.61 (c) which effectively extended the emergency mandate and required that "[c]overed entities shall continuously require personnel to be fully vaccinated against COVID-19, absent receipt of an exemption as allowed below. Covered entities shall require all personnel to receive at least their first dose before engaging in activities covered under . . . this section." (Id.) Roswell Park later adopted its own in-house policy that mirrored the language of section 2.61 and even referenced section 2.61 in its policy.

Petitioner Cooper was originally granted a religious exemption to the administrative vaccine mandate. However, this was rescinded on December 6, 2021. (See NY St Cts Elec Filing [NYSCEF] Doc No. 1, verified petition ¶ 24.) On December 10, 2021, Roswell Park issued a notice of discipline (hereinafter NOD). (Id. ¶ 20.) Five separate charges were levied against Cooper alleging that because she failed to get vaccinated, she violated section 2.61, engaged in misconduct, was derelict in her duties, was incompetent, and was insubordinate. (See generally id. ¶ 24.) Cooper was suspended without pay effective on December 7, 2021.

As an employee, she was represented by the Public Employees Federation of the AFL-CIO (hereinafter PEF). Further, she belonged to the Professional, Scientific and Technical Services{**81 Misc 3d at 328} bargaining unit of the union. (Id. ¶¶ 3, 4.) In response to her suspension, she filed a grievance and a demand for arbitration under article 33 of the collective bargaining agreement (hereinafter CBA). The American Arbitration Association appointed Thomas N. Rinaldo, a licensed attorney and certified arbitrator, to hear the dispute. The questions presented to Mr. Rinaldo were:

1. Did Roswell Park's suspension of Cooper comply with article 33 of the CBA? If not, what would be the appropriate remedy?

2. Did Roswell Park establish by a preponderance of the evidence that Ms. Cooper was guilty of the charges in the December 10, 2021 NOD? If so, is the proposed penalty of termination appropriate, pursuant to the just cause principles referenced in article 33 of the CBA? If not, and in consideration of the principles of just cause and progressive discipline as required by PEF/State CBA, what, if any, is appropriate? (Id. ¶ 27.)

A hearing was held on November 22, 2022. Briefs were submitted on January 5, 2023. (Id. ¶ 28.)

However, on January 13, 2023, Supreme Court Justice Gerard J. Neri issued his decision in Medical Professionals for Informed Consent v Bassett. In Medical Professionals, petitioners, a collection of doctors, nurses, and other health care employees, challenged section 2.61 as ultra vires, preempted by state law, null and void, and/or unenforceable. (See 78 Misc 3d at 483.) Petitioners challenged the Commissioner's vaccine mandate, arguing that it was preempted by Public Health Law §§ 206, 613, 2164 and 2165. Public Health Law § 206 provides:

"[The Commissioner shall] establish and operate such adult and child immunization programs as are necessary to prevent or minimize the spread of disease and to protect the public health. Such programs may include the purchase and distribution of vaccines to providers and municipalities, the operation of public immunization programs, quality assurance for immunization related activities and other immunization related activities. The commissioner may promulgate such regulations as are necessary for the implementation of this paragraph. Nothing in this paragraph shall authorize mandatory immunization of adults or children, except as provided in sections twenty-one hundred [*4]sixty-four{**81 Misc 3d at 329} and twenty-one hundred sixty-five of this chapter." (See Public Health Law § 206 [1] [l] [emphasis added].)

Justice Neri noted that Public Health Law § 613 contained a similar prohibition on mandatory vaccinations. In section 613, "[n]othing in this subdivision shall authorize mandatory immunization of adults or children, except as provided in sections twenty-one hundred sixty-four and twenty-one hundred sixty-five of this chapter." (Id. at 484.) Public Health Law § 2164 covers only certain vaccines for children attending day care through high school, such as, inter alia, measles, mumps, rubella, tetanus, and hepatitis B. As noted by Justice Neri, "[t]he legislature intended to grant NYSDOH authority to oversee voluntary adult immunization programs, while ensuring that its grant of authority would not be construed as extending to the adoption of mandatory adult immunizations." (78 Misc 3d at 485, citing Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d 601 [2018].)

In Medical Professionals, Justice Neri found that the COVID-19 vaccine mandate, as contained in section 2.61, was unlawful in that it was beyond the scope of the respondents' authority. (Id. at 491.) He noted that the Commissioner was specifically prohibited from implementing a mandatory immunization program except as provided for in Public Health Law § 206 (1). The Commissioner could not promulgate any new restrictions outside those that were specifically authorized by the legislature. No such grant was authorized by the legislature during the entire pandemic. The Public Health Laws cited "create[d] a ceiling, limiting what respondents may do, not a floor demarking the base from which to start." (Id. at 490.) Citing Garcia, Justice Neri reminded respondents that the Court of Appeals already chastened health agencies that stepped outside their legislatively created boundaries. "[T]he legislature intended to grant NYSDOH authority to oversee voluntary adult immunization programs, while ensuring that its grant of authority would not be construed as extending to the adoption of mandatory adult immunizations." (Garcia, 31 NY3d at 620.) In finding that section 2.61 was beyond the scope of respondents' purview or authority, Justice Neri found it null, void, and of no effect, and that respondents, and their agents or officers, and employees were prohibited from implementing or enforcing the mandate. (See generally Medical Professionals, 78 Misc 3d at 491.)

Lawyers for Cooper notified arbitrator Rinaldo and the respondents that the State Supreme Court had struck down{**81 Misc 3d at 330} the very mandate at the heart of Wendy Cooper's NOD. They also requested a stay. However, arbitrator Rinaldo found Cooper guilty of all charges and found termination the appropriate remedy in his decision dated January 27, 2023. He noted, "[t]he wisdom or lack thereof of the State Policy embodied in the Regulation and the directives to Grievant to receive a COVID-19 vaccination, as with the accommodation issue, are beyond the jurisdiction of the Arbitrator." (See NYSCEF Doc No. 1, verified petition ¶ 42; NYSCEF Doc No. 4, exhibit A.) Arbitrator Rinaldo acknowledged the Medical Professionals decision in a footnote of his decision and explained why he did not rely on it. In his footnote, Rinaldo noted,

"The Arbitrator is aware of the recent Decision and Order issued by State Supreme Court, Onondaga County, (Medical Professional[s] for Informed Consent et al. v. Bassett et al, January 13, 2023). Given the Arbitrator's ruling that his jurisdiction is limited to interpreting and applying the provisions of the Parties' Agreement, the Arbitrator finds that the import of this Decision, significant as it might be, is beyond the Arbitrator's jurisdiction to consider, or, for that matter, to apply to the analysis set forth [in] this Award."

Ignoring this precedent, arbitrator Rinaldo found that Cooper was indeed derelict in her duties, [*5]incompetent, and insubordinate, and that respondents had just cause to terminate her, notwithstanding decisional law striking down the very vaccine mandate that was the basis for her termination.

After Rinaldo's decision to confirm Cooper's termination, the Appellate Division, Fourth Department issued a stay of Medical Professionals. At oral argument of the appeal, respondents "announced that 'they intend to repeal the regulation being challenged.' " (See NYSCEF Doc No. 22, verified reply ¶ 11.) Further, the Department of Health submitted a letter to the Appellate Division, Fourth Department that "[e]ffective immediately, the Department will cease citing providers for failing to comply with the requirements of 10 NYCRR Section 2.61 while the repeal is under consideration by the Public Health and Healthy Planning Council." (Id. ¶ 12; see NYSCEF Doc No. 26, exhibit D.) On June 8, 2023, respondents in Medical Professionals filed a motion to vacate the stay. As of August 8, 2023, appellants had not submitted a response to the motion. As it appears that the motion is unopposed, if granted, the stay would be vacated and Justice Neri's decision would stand.{**81 Misc 3d at 331}

During oral argument on the present petition, respondents conceded that, other than refusing the vaccine, Cooper was a stellar employee without blemish. Further, respondents conceded that they have begun to reach out to health care employees who are members of PEF and currently suspended for their failure to be vaccinated, to invite them back as employees for Roswell Park without condition. When confronted with a hypothetical, though acknowledging he was not the one charged with the responsibility of hiring individuals at the hospital, counsel for the respondents acknowledged that if Cooper applied for a nursing position at Roswell Park, considering her past employment record and level of performance, she would be hired back.

This proceeding was brought pursuant to CPLR 7511 and 7514. "Under CPLR 7511 . . . an arbitration award must be vacated if . . . a party's rights were impaired by an arbitrator who 'exceeded his power or so imperfectly executed it that a final and definite award upon the subject matter submitted was not made.' " (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 NY3d 85, 90 [2010].) "It is well settled that a court may vacate an arbitration award only if it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation on the arbitrator's power." (Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534 [2010]; Matter of O'Flynn [Monroe County Deputy Sheriffs' Assn., Inc.], 141 AD3d 1097 [4th Dept 2016].)

Petitioners argue that the arbitrator's decision violates public policy. More specifically, petitioners contend that the vaccine mandate was held beyond the scope of the State Health Commissioner's authority and thus was null, void, and unenforceable. They submit that to enact such a mandate is the province of the legislature and not the Health Commissioner. Further, they submit, the mandate at issue contradicts a legislatively enacted law, namely Public Health Law § 206, which specifically limits the scope of vaccination requirements for children and adults and generally prohibits mandatory vaccination programs for children and adults. Absent legislation providing otherwise, petitioners maintain the respondents had no authority to enact such a rule. As this was found otherwise unenforceable{**81 Misc 3d at 332} ab initio, the arbitrator's decision to nonetheless enforce it violates public policy. Further, in doing so, the arbitrator's decision was irrational. Refusing to apply an intervening decision from a court of competent jurisdiction, according to petitioners, meets the definition of irrationality. Consequently, the arbitrator's decision must be vacated.[*6]

Respondents insist that the arbitrator's decision was not contrary to public policy. Instead, respondents insist that public policy is constantly changing and evolving and thus, the arbitrator was correct in focusing his decision on the collective bargaining agreement as opposed to the decision in Medical Professionals. Similarly, the arbitrator's decision should be upheld because Roswell Park had just cause to terminate Cooper. At the time Cooper was terminated, the mandate had not been set aside and the employer's decision was based on the employee's conduct at the time discipline was imposed. Respondents maintain that the arbitrator's decision finding Roswell Park had just cause to terminate Cooper was rational and thus immune from judicial review. At the time Roswell Park terminated Cooper, they were legally required to enforce the mandate, regardless of whether it was subsequently set aside. As such, the arbitrator's award to confirm the employer's decision was rational.

To review a decision upholding the termination of an otherwise stellar employee who would now be welcomed back as a registered nurse by the same employer, whose only transgression was refusing a vaccine whose efficacy has been scientifically disputed, thus violating a policy that has since been held to be null, void, invalid and is now not enforced by the State or her current employer, would appear to be a waste of judicial resources. However, given respondent's disregard of the practical considerations of the dispute, the court will address the merits of the matter.

I. The arbitrator's decision violates public policy.

As Justice Neil Gorsuch noted in Arizona v Mayorkas, "while executive officials issued new emergency decrees at a furious pace, state legislatures and Congress—the bodies normally responsible for adopting our laws—too often fell silent." (Arizona v Mayorkas, 598 US —, —, 143 S Ct 1312, 1315 [2023].) In New York, it is the legislature, not the executive and certainly not the Commissioner of Health, that advances public{**81 Misc 3d at 333} policy. While respondents suggest that "public policy" is ever changing and constantly evolving, that alone does not justify ceding authority to change policy to unelected bureaucrats and appointees who, in some instances, criminalize behavior or, in this case, deprive individuals of their rights. While respondents cite to Matter of Sprinzen to support their argument that "public policy" evolves, a portion of that decision is rather illuminating. (See Matter of Sprinzen [Nomberg], 46 NY2d 623 [1979].) In Matter of Sprinzen, Judge Matthew Jasen wrote, "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." (Id. at 631.) This rationale endows arbitrators with unlimited powers that are not properly delegated to them. This decision suggests that an arbitrator can, at their own discretion, apply their "own sense of law" to cases such as these. This only further surrenders peoples' protected liberties to arbitrators, who are unelected and otherwise unaccountable, to pursue "their sense of the law." While the application of this precedent is not at issue, if the arbitrator is empowered to apply his own sense of equity to the facts, it is troubling to find that this arbitrator found it fair and just to confirm Cooper's termination despite there being scant evidence of Ms. Cooper being derelict in her duties, incompetent or insubordinate, other than refusing to take a vaccine pursuant to a mandate which was found to be null and void, that the person issuing the mandate lacked the authority to do so, and that the rule was unenforceable.

[1] This court finds that the arbitrator's decision should be vacated because it is irrational and against public policy. (See Matter of Falzone [New York Cent. Mut. Fire Ins. Co.], 15 [*7]NY3d 530 [2010]; Matter of O'Flynn [Monroe County Deputy Sheriffs' Assn., Inc.], 141 AD3d 1097 [4th Dept 2016].) Justice Neri correctly noted that the vaccine mandate clearly violated the separation of powers. This concept, which is elementarily understood to be a bedrock principle in our system of governance, "requires . . . the Legislature [to] make the critical policy decisions, while the executive branch's responsibility is to implement those [decisions]." (Medical Professionals for Informed Consent v Bassett, 78 Misc 3d at 485, citing Garcia v New York City Dept. of Health & Mental Hygiene, 31 NY3d 601 [2018].) While the legislature ceded much of its authority to the executive, which often went unchecked by the third branch, the legislature still enacted legislation during the pandemic. It{**81 Misc 3d at 334} passed several laws ranging from women's reproductive rights to criminal justice reform during the pandemic. However, what it did not enact was a statewide vaccine mandate. Without legislative support, the codification of a vaccine mandate in section 2.61 contravened the only applicable laws the legislature actually did pass, namely Public Health Law § 206, which expressly forbade vaccine mandates in adults and children. This had to be understood by the Commissioner, as her Department was abundantly aware of its limitations when the Court of Appeals reminded it in Garcia that there was no authority for the adoption of a sweeping adult immunization mandate. (See Garcia, 31 NY3d at 620.) The fact that the Commissioner did so, despite the Court of Appeals' decision in 2018, is a clear example of a violation of public policy. Absent an act of the legislature that specifically authorized a universal vaccine mandate, the Commissioner's mandate was null and void, and could not be relied on. The fact that the arbitrator confirmed Ms. Cooper's termination in the face of Garcia and Medical Professionals further convinces this court of the arbitrariness and irrationality of the decision to terminate.

It naturally follows that to follow and apply a flawed public policy, especially one that was declared, ab initio, null and void, requires vacating the decision and award of the arbitrator.

II. The arbitrator's decision is irrational.

As previously noted, while Ms. Cooper's matter was submitted and before the arbitrator issued his decision, Justice Neri issued his decision in Medical Professionals. Nevertheless, though acknowledging the decision in a footnote, the arbitrator ignored it and found for the employer. Ignoring precedent alone is a basis to vacate the award. This court is not alone in vacating suspect arbitration awards. While the court recognizes the wide berth afforded to arbitrators, it is not unlimited.

In Matter of Trifaro v Town of Colonie (31 AD3d 821 [3d Dept 2006]), a police officer applied for benefits and was denied. However, between the date of the application filing and the date of the hearing officer's decision, the Court of Appeals issued its decision in Matter of Theroux v Reilly. (See 1 NY3d 232 [2003].) Like here, the hearing officer was advised of the development in case law and ignored it. In Trifaro, the Third Department held that the hearing officer's failure to apply the intervening Court of Appeals decision was an error of law. (See generally Matter of Trifaro v Town of Colonie, 31 AD3d 821 [3d{**81 Misc 3d at 335} Dept 2006].) The Court explained that a hearing officer, or an arbitrator as the case may be, must apply the law as it exists at the time, "even if the law has been altered since the commencement of the action or proceeding." (Id. at 822.) Respondents suggest that because the mandate was enforceable at the time of discipline it naturally follows that Roswell Park had just cause to fire her. However, applying Trifaro, it naturally follows that if there is a change of law while litigation is ongoing, a hearing officer or arbitrator cannot simply elect to ignore it. Since the mandate which formed the basis for Ms. Cooper's termination was found to be invalid while the matter was being litigated, the [*8]arbitrator's decision upholding the termination must be vacated.

Petitioners cite to Matter of Beard v Town of Newburgh, which this court finds persuasive. (259 AD2d 613 [2d Dept 1999].) In Beard, a petitioner commenced an article 75 action to vacate an arbitration award. The sole issue for denying the petitioner relief was his criminal conviction. However, the criminal judgment was subsequently reversed and the Second Department vacated the arbitration award. Though the reversal occurred after the arbitrator's decision, the Second Department did not hesitate to vacate. As the issue at the heart of the arbitration was moot, the Second Department did not hesitate to reverse it even after the decision had been reached. The same analysis applies here. Regardless of when the misconduct occurred, if the arbitrator became aware of something that would have otherwise altered the outcome, he is bound to follow it. But for the invalid mandate, Wendy Cooper would still be working at Roswell Park. Thus, if the mandate is found to be invalid, which it was by virtue of Medical Professionals, the arbitrator should have taken notice of it and restored her to the status quo ante. His failure to do so was irrational. (See generally Schiferle v Capital Fence Co., Inc., 155 AD3d 122 [4th Dept 2017]; Matter of Syracuse Firefighters Assn., Local 280, IAFF, AFL-CIO, CLC [City of Syracuse], 213 AD3d 1249 [4th Dept 2023].)

Respondents assert that the arbitrator's decision should be left undisturbed because Roswell Park had just cause to terminate Ms. Cooper for her refusal to take the COVID-19 vaccine. Black's Law Dictionary defines "just cause" as "a legally sufficient reason." (Black's Law Dictionary 87 [pocket ed 1996].) However, given Justice Neri's decision in Medical Professionals, respondents' reliance on a theory of termination{**81 Misc 3d at 336} for cause is misplaced. After all, if the mandate Roswell Park was enforcing when they suspended her and eventually terminated Ms. Cooper has been deemed null, void and unenforceable, it is unreasonable for them to continue to argue that their action should be upheld as legally sufficient.

The entire termination was based on Cooper's decision to refuse the vaccine. The decision was never based on other additional factors. Thus, if the basis for her termination legally collapsed, which it did by Justice Neri's decision, any action taken in contravention of that precedent is irrational and invalid.

As such, the arbitrator's decision should be vacated.

III. Interests of Justice

[2] While it is quite clear that the arbitrator acted irrationally and in violation of public policy, it is this court's judgment that the arbitrator's decision to enforce a mandate, which clearly violated public policy, that had been declared null, void and unenforceable ab initio, and was the product of administrative overreach by the State and Roswell Park, was not in the interests of justice. To confirm such an award would do great harm to the principles of justice, fairness and equity.

To fire an exemplary employee, who did nothing but refuse the vaccine, whose mandate was declared null and void, would offend the very nature of justice. To confirm findings that she was incompetent or derelict, or even bestow a judicial imprimatur, based on this record, that somehow, she engaged in misconduct, would do tremendous harm to her professional career. To permit such a stain on her character seems incongruent given the undisputed facts. To further penalize her, given that the State is now abandoning its appeal of Medical Professionals, has rescinded the mandate, is no longer enforcing a vaccine requirement, and would welcome her back as a registered nurse, is contrary to the very pursuit of justice.[*9]

Appellate and trial courts have often granted equitable relief all in the name of the interest of justice. (See generally Matter of Allstate Ins. Co. v Levy, 206 AD2d 527 [2d Dept 1994].) Further, courts have vacated arbitration awards that manifestly disregard the law. (See generally Matter of Spear, Leeds & Kellogg v Bullseye Sec., 291 AD2d 255 [1st Dept 2002].) It would be inconsistent with the standards of justice to further penalize Ms. Cooper.

Ms. Cooper is an unfortunate victim in the wake of excesses exhibited by governors, administrators, legislatures, and yes,{**81 Misc 3d at 337} even the judiciary. All too frequently did critical thinking, and the exercise of personal liberties expire at the altar of false righteousness, fear, and authority. As Justice Gorsuch observed,

"Courts bound to protect our liberties addressed a few—but hardly all—of the intrusions upon them. In some cases . . . courts even allowed themselves to be used to perpetuate emergency public-health decrees for collateral purposes, itself a form of emergency-lawmaking-by-litigation. . . .

"One lesson might be this: Fear and the desire for safety are powerful forces. They can lead to a clamor for action—almost any action—as long as someone does something to address a perceived threat. . . . We do not need to confront a bayonet, we need only a nudge, before we willingly abandon the nicety of requiring laws to be adopted by our legislative representatives and accept rule by decree. Along the way, we will accede to the loss of many cherished civil liberties—the right to worship freely, to debate public policy without censorship, to gather with friends and family, or simply to leave our homes. We may even cheer on those who ask us to disregard our normal lawmaking processes and forfeit our personal freedoms. . . .

"But maybe we have learned another lesson too. The concentration of power in the hands of so few may be efficient and sometimes popular. But it does not tend toward sound government. However wise one person or his advisors may be, that is no substitute for the wisdom of the whole of the American people that can be tapped in the legislative process. . . .

"Make no mistake—decisive executive action is sometimes necessary and appropriate. But if emergency decrees promise to solve some problems, they threaten to generate others. And rule by indefinite emergency edict risks leaving all of us with a shell of a democracy and civil liberties just as hollow." (Arizona v Mayorkas, 598 US —, —, 143 S Ct 1312, 1315-1316 [2023] [citations omitted].)

While appellate courts are charged with finding error, a trial court aims at doing justice. This court fails to see the justice in the vain attempt to uphold the inviolability of an arbitrator's decision, relying on all of the precedent that creates an impenetrable shell, at the expense of Ms. Cooper's livelihood, especially{**81 Misc 3d at 338} considering the absence of hearty opposition from the respondents, their willingness to acknowledge her impeccable credentials, the abandonment of their appeal in Medical Professionals, the obvious overstep of the executive branch at the expense of the legislature, the rescission of the mandate, and the lack of any vaccine requirement to be employed at any public hospital. Further, there is no justice when an individual is branded as a derelict or an incompetent for merely exercising her individual rights.

It is in the interest of justice to vacate the arbitrator's decision.

IV.

Having concluded that the arbitrator's decision is irrational, violative of public policy, and contrary to the interests of justice, the court hereby vacates the decision of the arbitrator and orders the petitioner Wendy Cooper reinstated and her employment record amended.[*10]

As this court is without jurisdiction or a proper record to address the issue, the court directs the parties to negotiate, pursuant to the CBA, any questions of retroactive pay and benefits.

The court denies petitioners' request for costs, fees, or disbursements.