Opinion
July 3, 1995
Appeal from the Supreme Court, Orange County (Silverman, J.).
Ordered that the appeal from the judgment dated January 20, 1994, is dismissed, as that judgment was superseded by the amended judgment dated July 15, 1994; and it is further,
Ordered that the amended judgment dated July 15, 1994, is reversed, on the law, the judgment dated January 20, 1994, is vacated, the arbitration award is reinstated and confirmed, and the proceeding is dismissed; and it is further,
Ordered that the appellant is awarded one bill of costs.
The petitioner was charged with violating certain rules of her employment. Pursuant to the parties' collective bargaining agreement, the matter was submitted to arbitration and, after a hearing, the arbitrator sustained the charges and the petitioner was dismissed. She thereafter commenced this proceeding pursuant to CPLR 7511 to vacate the arbitration award, contending, inter alia, that the arbitrator failed to follow proper procedures and erroneously curtailed her right of cross-examination by refusing to direct pre-arbitration disclosure as she requested. The Supreme Court agreed and vacated the award. We reverse.
The petitioner waived the discovery issue by participating in the arbitration without further protest and without seeking the appropriate remedy of court-ordered disclosure or a judicial subpoena ( see, CPLR 7506 [f]; Matter of Smith Contr. v. Stahl, 162 A.D.2d 688; Matter of Pierre [General Acc. Ins.], 100 A.D.2d 705; see generally, Matter of Silverman [Benmor Coats], 61 N.Y.2d 299). In any event, her contention is patently without merit, inasmuch as it is firmly established that "[u]nder the CPLR, arbiters do not have the power to direct the parties to engage in disclosure proceedings" ( De Sapio v. Kohlmeyer, 35 N.Y.2d 402, 406; see, Sherrill v. Grayco Bldrs., 64 N.Y.2d 261, 273-274; Matter of North Am. Foreign Trading Corp. v. Rosen, 58 A.D.2d 527), and it was instead incumbent upon the petitioner to seek an order directing disclosure in the Supreme Court based upon a showing of extraordinary circumstances ( see, CPLR 3102 [c]; see, e.g., Hendler Murray v. Lambert, 147 A.D.2d 442; Matter of Civil Serv. Empls. Assn. v. Ontario County Health Facility, 103 A.D.2d 1000; Matter of Moock v. Emanuel, 99 A.D.2d 1003; Matter of Katz v. State of N.Y. Dept. of Correctional Servs., 64 A.D.2d 900).
We have considered the petitioner's remaining contentions and find them to be devoid of both factual support ( see, Matter of Broderick v. Suffolk County Bar Assn., 157 A.D.2d 780) and legal merit.
Accordingly, the petitioner has failed to sustain her burden for vacating the award pursuant to CPLR 7511, and the arbitration award is reinstated and confirmed. Sullivan, J.P., O'Brien, Altman and Goldstein, JJ., concur.