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Thursday, June 05, 2014

A disagreement over the penalty assessed by the arbitrator does not constitute a basis for vacating the award


A disagreement over the penalty assessed by the arbitrator does not constitute a basis for vacating the award
2014 NY Slip Op 03627, Appellate Division, First Department

This appeal flows from an arbitration award issued in 2007 that imposed a penalty of six months' unpaid suspension and mandatory counseling on a tenured teacher [Teacher] based on the arbitrator’s finding that Teacher had engaged in inappropriate contact with female students.

Here the New York City Board of Education sought a judgment vacating the award or, in the alternative, modifying the award to impose a penalty terminating Teacher's employment with the New York City School District.

Teacher interposed a motion to dismiss the petition for lack of personal jurisdiction. Teacher’s motion was denied by Supreme Court, which denial was affirmed by the Appellate Division (see 65 AD3d 934).

The Board of Education did not further inquire as to the status of the matter until 2010 when it learned that the assigned Justice had retired. It then asked to have the matter restored to the calendar. A status conference was held in 2011, at which time the Board was directed to retrieve the court file and attempt to reach a settlement with Teacher. No settlement agreement was reached by the parties and ultimately the court issued a sua sponte* order dismissing the proceeding as abandoned in accordance with its earlier order.

The Board next filed a motion, designated as one to “renew and/or reargue,” contending that Supreme Court had "overlooked the entire procedural history of this matter and misapplied the applicable law regarding when a proceeding may be deemed abandoned."

The Board’s motion was dismissed by the Appellate Division as [1] “It is well settled that no appeal lies from an order issued sua sponte; [2] “This Court has repeatedly stated that the proper procedure to be followed to appeal from a sua sponte order is to apply to vacate the order and then appeal from the denial of that motion so that a suitable record may be made and counsel afforded the opportunity to be heard on the issues;” and [3] Alternatively, the aggrieved party may seek permission to appeal.

Here, the Appellate Division noted, nothing in the moving papers identifies the application as one seeking to vacate the Supreme Court's order, nor does it provide the requisite demonstration of the merit of the proceeding.

Significantly the Appellate Division’s decision states that the motion papers do not  indicate that “a disagreement over the penalty assessed by the arbitrator constitutes a basis for vacating the award on a ground specified by statute (see CPLR 7511[b]; [1]) or that there is any ground for modification of the award (see CPLR 7511[c]).”

The bottom line: Noting that the Board had not sought leave to appeal and, given the passage of seven years since the issuance of the arbitration award, the Appellate Division “declined to nostra sponte** grant such relief.”

* The term sua sponteis used to describe the action taken by a court on it’s own motion and not in response to a motion or argument by a party in the matter.

** The term nostra sponte is used to describe an action taken by a panel of judges acting on its own motion and not in response to a motion or argument by a party.
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Handbooks focusing on State and Municipal Public Personnel Law continue to be available for purchase via the links provided below:

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A Reasonable Penalty Under The Circumstances at http://nypplarchives.blogspot.com

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

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

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