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Saturday, May 14, 2011

An appeal of an arbitration award must be perfected within the controlling statute of limitations

An appeal of an arbitration award must be perfected within the controlling statute of limitations
Rodriguez v NYC Transit Authority, 269 A.D.2d 600, Motion for appeal denied, 96 N.Y.2d 704

Hermino Rodriguez was dismissed from his position of cleaner with the New York City Transit Authority after being found guilty of disciplinary charges by a tripartite arbitration board.

Objecting to his termination, Rodriguez filed an Article 78 petition. A State Supreme Court judge vacated the arbitration award and directed the Authority to reinstate Rodriguez to his former position with back salary.

Find anything wrong with this? The Appellate Division did and overturned the lower court’s ruling.

In the words of the Appellate Division, “[c]ontrary to the Supreme Court’s determination, the only proper proceeding to seek review of the arbitrators’ decision in this case would be pursuant to CPLR [Civil Practice Law and Rules] Article 75...” not Article 78.

In addition, Section 7510 of the CPLR has a relatively short statute of limitation. The motion to vacate the arbitration award must be filed within 90 days of the receipt of the arbitrators’ decision.*

Rodriguez received a copy of the arbitration award affirming his termination on July 24, 1997. He filed his Article 78 petition, which was not heard until November 15, 1997. By that time it was too late for him to file an Article 75 petition.

While the Supreme Court justice treated Rodriguez’s Article 78 proceeding as an application pursuant to Article 75 of the CPLR, which he could do, the court did not have the power to extend the Statute of Limitations controlling the filing Article 75 actions.

The point here is that Rodriguez could have filed his motion to vacate the arbitration award within 90 days of his receiving the determination even if he had already filed an Article 78 action. The fact that he had started an Article 78 action, however, did not toll the running of the statute of limitations applicable in an Article 75 pro­ceeding.

* Education law Section 2030-a.5 provides an even shorter statute of limitations for challenging an adverse  disciplinary arbitration award – 10 days: Section 3020-a.5 Appeal. Not 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 seven thousand 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. The hearing panel's determination shall be deemed to be final for the purpose of such proceeding. In no case shall the filing or the pendency of an appeal delay the implementation of the decision of the hearing officer.


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The Disability Benefits E-book: at http://section207.blogspot.com/

Layoff, Preferred Lists at http://nylayoff.blogspot.com/

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