Opinion
2001-07902, 2001-09495.
Decided June 21, 2004.
Motion by the respondent for leave to reargue appeals from two orders of the Supreme Court, Westchester County, entered July 23, 2001, and October 15, 2001, respectively, which were determined by decision and order of this court dated September 15, 2003.
James R. Sandner, New York. N.Y. (Conrad W. Lower of counsel), for appellant.
Rains Pogrebin, P.C., Mineola, N.Y. (Howard M. Miller and Terence M. O'Neil of counsel), for respondent.
Before: A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, THOMAS A. ADAMS, STEPHEN G. CRANE, JJ.
DECISION ORDER ON MOTION
ORDERED that the motion is granted, and, upon reargument, the decision and order of this court dated September 15, 2003 ( see Matter of Board of Educ. of Greenburgh Eleven Union Free School Dist. v. Polonio, 308 A.D.2d 491), is recalled and vacated, and the following decision and order is substituted therefor:
In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, Roy Polonio appeals (1) from an order of the Supreme Court, Westchester County (Nastasi, J.), entered July 23, 2001, which granted the petition and denied his cross motion to confirm the award, and (2), as limited by his brief, from so much of an order of the same court, entered October 15, 2001, as, upon reargument, adhered to its original determination.
ORDERED that the appeal from the order entered July 23, 2001 is dismissed, as that order was superseded by the order entered October 15, 2001; and it is further,
ORDERED that the order entered October 15, 2001, is reversed insofar as appealed from, upon reargument, the order entered July 23, 2001, is vacated, the petition is denied, and the proceeding is dismissed; and it is further,
ORDERED that one bill of costs is awarded to the appellant.
The Supreme Court erred in granting the petition as the petitioner failed to demonstrate that the Hearing Officer's determination was arbitrary and capricious, or that it was not supported by the evidence in the record ( see Matter of Hegarty v. Board of Educ. of City of New York, 5 A.D.3d 771; Matter of Tasch v. Board of Educ. of City of New York, 3 A.D.3d 502; Matter of Board of Educ. of Fl. Union Free School Dist. v. DePace, 301 A.D.2d 521).
PRUDENTI, P.J., FLORIO, ADAMS and CRANE, JJ., concur.