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October 15, 2018

Initiating an Article 78 action after filing a demand for arbitration concerning the same matter constitutes a waiver or abandonment of the party's right to arbitrate the issue


Initiating an Article 78 action after filing a demand for arbitration concerning the same matter constitutes a waiver or abandonment of the party's right to arbitrate the issue
City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06738, Appellate Division, Second Department, [Decided with Matter of Yonkers Firefighters v City of Yonkers, Appellate Division Docket No. 2016-02470]
[See, also, City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06750, Appellate Division, Second Department and City of Yonkers v Yonkers Firefighters, 2018 NY Slip Op 06751, Appellate Division, Second Department]

On December 4, 2014, Yonkers Firefighters, Local 628, International Association of Fire Fighters, AFL-CIO, [Local 628], filed a demand for arbitration alleging that Christopher Giardini had been improperly terminated from the position of firefighter in violation of a collective bargaining agreement with the City of Yonkers [City]. Two weeks later, Local 628 commenced a proceeding pursuant to CPLR Article 78 to review the determination of the City terminating Giardini's employment.

Local 628 actively prosecuted both arbitration and the Article 78 action. On September 26, 2015, an arbitration award*in favor of Local 628 and the on December 23, 2015, the City commenced proceeding pursuant to CPLR Article 75 to vacate the September 26, 2015, arbitration award, alleging, among other things, that the arbitrator lacked authority to arbitrate the dispute because Local 628 had waived arbitration of the dispute by commencing and prosecuting the CPLR Article 78 proceeding it initiated in December 2014.

Supreme Court granted the City's petition and vacated the arbitration award. Local 628 appealed Supreme Court's decision.

The Appellate Division affirmed the Supreme Court's ruling, noting that a right to arbitration may be modified, waived or abandoned "[w]here a party affirmatively seeks the benefits of litigation, in a manner clearly inconsistent with [its] claim that the parties were obligated to settle their differences by arbitration...." Further, said the court, "[O]nce waived, the right to arbitrate cannot be regained, even by [a] respondent's failure to seek a stay of arbitration."

Here, said the court, Local 628, by commencing an action at law involving arbitrable issues, it waived whatever right it had to arbitration. Accordingly, ruled the Appellate Division, because Local 628 commenced the CPLR Article 78 proceeding during the pendency of the arbitration the City correctly argued that Local 628 waived its right to arbitration as a result and the arbitrator should not have conducted the arbitration. As a result the award exceeded the arbitrator's authority and the Appellate Division concurred with the Supreme Court's determination granting the petition and vacating the arbitration award. 

* The arbitrator ruled that that Giardini's employment as a probationer had become permanent prior to the termination of his employment notwithstanding interruptions in his performance of his firefighter duties during his probationary period due to injuries suffered in the line of duty and directed his reinstatement to the position of firefighter with back pay. However, it should be noted that in the event an employee injured on the job is given a "light duty assignment," as was the case with respect to Giardini, the courts have held that the appointing authority was not required to count the worker's "light duty service" for probationary purposes. In Boyle v Koch, 114 AD2 78, leave to appeal denied 68 NY2d 601, the court held that an injured firefighter may not claim to have performed the duties of the position to which he or she has been appointed as a probationer on the basis of his or her satisfactory performance of "light duty."

A NYPPL Note: The Boyle court reversed a decision which had granted Boyle, and another New York City firefighter, tenure one year after the effective date of their respective permanent appointments. The reversal of the earlier ruling was based on the concept that the probationary period is designed to determine the fitness of the employee for tenure on the basis of his or her job performance. A worker who is absent because of a disability, work-connected or not, or one who is performing "light duty," is not able to satisfy this requirement as he or she cannot be evaluated with respect to his or her actual performance of the duties of the position. Although the firefighters had been in service for one year, they had spent only two or three months performing the full duties of their positions. They were absent on sick leave or assigned light duty for the balance of the time. The opinion concludes with the following observation: "To be sure, any probationer who is injured in service should be granted the protections to which he or she is entitled, such as sick-leave benefits and the opportunity to apply for disability retirement. The grant of tenure, however, to an employee who does not successfully complete a probationary period frustrates the function of probation, and undermines the constitutional requirement that appointments be based on merit and fitness."

The Local 628 decision is posted on the Internet at:

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