Opinion
2014-09823, Index No. 58656/14.
10-11-2017
In the Matter of Adam B. HELLER, appellant, v. BEDFORD CENTRAL SCHOOL DISTRICT, respondent.
Sussman and Watkins, Goshen, NY (Michael H. Sussman of counsel), for appellant. Bond Schoeneck & King, PLLC, New York, NY (Richard G. Kass of counsel), for respondent.
Sussman and Watkins, Goshen, NY (Michael H. Sussman of counsel), for appellant.
Bond Schoeneck & King, PLLC, New York, NY (Richard G. Kass of counsel), for respondent.
WILLIAM F. MASTRO, J.P., CHERYL E. CHAMBERS, ROBERT J. MILLER, and BETSY BARROS, JJ.
In a proceeding pursuant to CPLR article 75 to vacate an arbitration award dated May 12, 2014, made in connection with a compulsory arbitration pursuant to Education Law § 3020–a, which, after a hearing, sustained charges of misconduct against the petitioner and terminated his employment, the petitioner appeals from an order of the Supreme Court, Westchester County (Wood, J.), dated October 2, 2014, which denied the petition.
ORDERED that the order is affirmed, with costs.
"Where, as here, the obligation to arbitrate arises through a statutory mandate, ... the determination of the arbitrator is subject to ‘closer judicial scrutiny’ under CPLR 7511(b) than it would otherwise receive" ( Matter of Razzano v. Remsenburg–Speonk Union Free Sch. Dist., 144 A.D.3d 810, 810, 41 N.Y.S.3d 72, quoting Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 A.D.3d 1012, 1013, 879 N.Y.S.2d 568 ; see Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 A.D.3d 633, 634, 850 N.Y.S.2d 478 ). "An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious" ( Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 A.D.3d at 1013, 879 N.Y.S.2d 568 ; see Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 223, 652 N.Y.S.2d 584, 674 N.E.2d 1349 ). "In addition, article 75 review questions whether the decision was rational or had a plausible basis" ( Matter of Petrofsky [Allstate Ins. Co.], 54 N.Y.2d 207, 211, 445 N.Y.S.2d 77, 429 N.E.2d 755 ). 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 (see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443–444, 522 N.Y.S.2d 478, 517 N.E.2d 193 ; Matter of Powell v. Board of Educ. of Westbury Union Free School Dist., 91 A.D.3d 955, 938 N.Y.S.2d 123 ; Matter of Saunders v. Rockland Board of Coop. Educ. Servs., 62 A.D.3d at 1013, 879 N.Y.S.2d 568 ; Matter of Tasch v. Bd. of Educ. of City of N.Y., 3 A.D.3d 502, 503, 770 N.Y.S.2d 430 ).
Here, the arbitrator's determination has evidentiary support and was not arbitrary and capricious (see City School Dist. of City of N.Y. v. McGraham, 17 N.Y.3d 917, 919, 934 N.Y.S.2d 768, 958 N.E.2d 897 ; Crawford v. Merrill Lynch, Pierce, Fenner & Smith, 35 N.Y.2d 291, 298, 361 N.Y.S.2d 140, 319 N.E.2d 408 ; Matter of Powell v. New York City Dept. of Educ., 144 A.D.3d 920, 42 N.Y.S.3d 184 ; Matter of Buffalo Teachers Fedn., Inc.
[Board of Educ. of Buffalo City School Dist.], 67 A.D.3d 1402, 1403, 890 N.Y.S.2d 225 ). Moreover, contrary to the petitioner's contentions, the arbitrator's determination was in a form sufficient to enable the petitioner to understand its basis so as to permit intelligent challenge and adequate judicial review (see Matter of Simpson v. Wolansky, 38 N.Y.2d 391, 396, 380 N.Y.S.2d 630, 343 N.E.2d 274 ; Matter of Bader v. Board of Educ. of Lansingburgh Cent. School Dist., 216 A.D.2d 708, 709, 627 N.Y.S.2d 858 ), and the determination does not shock the conscience (see Matter of Kelly v. Safir, 96 N.Y.2d 32, 39–40, 724 N.Y.S.2d 680, 747 N.E.2d 1280 ; Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233–235, 356 N.Y.S.2d 833, 313 N.E.2d 321 ; Matter of Powell v. New York City Dept. of Educ., 144 A.D.3d at 921, 42 N.Y.S.3d 184 ; Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 A.D.3d at 1013, 879 N.Y.S.2d 568 ).
The petitioner failed to present evidentiary proof of actual bias or the appearance of bias on the part of the arbitrator (see Matter of Wisner Professional Bldg. v. Zitone Constr. & Supply Co., 224 A.D.2d 538, 638 N.Y.S.2d 347 ). Accordingly, the petitioner failed to establish entitlement to vacatur of the arbitrator's award pursuant to CPLR 7511(b)(1)(ii) on the ground of partiality (see Matter of Schwartz v. New York City Dept. of Educ., 22 A.D.3d 672, 673, 802 N.Y.S.2d 726 ).
The petitioner waived his argument that some of the charges against him violated Education Law § 3020–a(2)(a) by failing to raise the issue until his post-hearing brief (see Matter of Powell v. Board of Educ. of Westbury Union Free School Dist., 91 A.D.3d at 956, 938 N.Y.S.2d 123 ; Matter of Sims v. Siegleson, 246 A.D.2d 374, 377, 668 N.Y.S.2d 20 ).