November 20, 2018

Proper service of an arbitration award starts the running of the statute of limitations for perfecting an appeal
Case v Monroe Comm. College, 224 A.D.2d 952, affirmed, 89 N.Y.2d 438, Motion to amend opinion denied, 89 N.Y.2d 1081

In order to challenge an arbitration award, the aggrieved party must commence a timely Article 75 action [Article 75, Civil Practice Law and Rules]. Case v Monroe County Community College considers this issue in the context of an employee personally filing an action to vacate or modify an arbitration award pursuant to Article 75 should his or her union decline to do so.

Significantly, the Court of Appeals ruled that service of an arbitration award upon the union representing an aggrieved member constitutes service upon that individual member, for purposes of measuring the timeliness of an appeal from the award.

This, said the Court, is true regardless of whether the union elects to pursue an appeal on behalf of its member. The operative date is the date the arbitrator served the individual's agent, here Case's  union, with a copy of the award.

Further, the high court said that it did not make any difference if the party upon whom the award was served was not an attorney.

The case arose after a student charged Robert W. Case, Monroe Community College's Director of Athletics, with sexual harassment. When the  College's attempts to resolve the matter to the satisfaction of both parties proved fruitless, Case was notified that his term appointment would not be renewed for the subsequent academic year.

Case filed a grievance under the collective bargaining agreement between the College and the faculty union alleging that the College's non-renewal of his appointment violated certain procedural steps set out in the agreement.

Eventually Case's grievance was submitted to arbitration. The arbitrator decided that because Case held a non-tenured term appointment, there was no basis under the terms of the collective bargaining agreement for arbitration of the non-renewal of his employment and denied his grievance. The arbitrator mailed copies of the award to the union and the College -- each acknowledged receipt of the award the following day.

Case told the union that he was dissatisfied with the award. The union, however, decided not to attempt to vacate it. When Case brought an Article 75 action to vacate or modify the award, the College moved to dismiss his petition, citing two reasons in support of its motion:

(1) Case lacked standing to bring a proceeding on the award because he was not a party to the arbitration; and

(2) his petition was untimely under CPLR 7511(a) since it was filed after the 90-day statutory period for commencing the action had passed.

Although the Appellate Division concluded that CPLR 7511(a) requires that an application to vacate or modify an arbitration award "be made by a party within ninety days after its delivery to him" this meant that when the individual was not represented by an attorney  "... nothing less than personal service upon the aggrieved individual ... triggers the 90-day appeal period".

Accordingly, the Appellate Division ruled that Case's application to vacate or modify the award, even though filed approximately six months after the award was served on his union, was timely because the 90-day statute of limitations first began to run "when the award was delivered to petitioner."

The Court of Appeals said it disagreed with this analysis, commenting that it had previously recognized that "basic procedural dictates" and "fundamental policy considerations" contemplate that "once counsel has appeared in a matter a Statute of Limitations or time requirement cannot begin to run unless that counsel is served with the determination or the order or judgment sought to be reviewed."

The Court said that the Appellate Division's holding that this principle applies in cases where a party is represented by an attorney and not where a lay union representative "unschooled in the law" was the grievant's agent was incorrect.

Rather, when an individual has designated an agent to represent him, service on the agent, whether an attorney or not, starts the running of the statute of limitations. In such a situation, once a grievant is represented by a designated agent, that entity or individual becomes the agent for service of awards, orders or documents relevant to the proceeding.

Once service is effected on the individual's agent in accordance with the prescribed rules, the aggrieved individual is deemed to have been served with the award or order.

Note: As to the issue of Case having standing to bring the Article 7f5 action, the Court of Appeals said that he could do so that even though he was not individually named as a party in the caption of the arbitration proceeding and was initially represented by a union attorney, citing Diaz v Pilgrim State Psychiatric Center, 62 NY2d 693. 

In Diaz the Court of Appeals said that where the provisions of the collective bargaining agreement specifically provide that an aggrieved employee is entitled to "representation at each step of the disciplinary procedure by the union or any attorney selected by an employee or to represent himself or herself," nothing bars the aggrieved employee's self-representation subsequent to the designated representative's declination to proceed further.

What does this decision mean? Simply put, it means that an individual will be deemed to have been served with an arbitration award on  the same day his or her attorney, union or other representative is served even if he or she does not personally receive a copy until some later date. 

As Case learned, if an individual fails to file his or her Article 75 motion to vacate or modify an arbitration award within 90 days after service of the award on his or her agent, or after personally receiving a copy, which ever is the earlier date, the petition will be dismissed as untimely.


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