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February 27, 2019

Some procedural consideration relevant to efforts to vacate an arbitration award


Some procedural consideration relevant to efforts to vacate an arbitration award
Yates v County of Nassau, 2019 NY Slip Op 01219, Appellate Division, Second Department

The employee [Respondent] in this action was terminated from his position with the County of Nassau [Nassau]. He filed a grievance challenged his dismissal pursuant to a collective bargaining agreement between Appellant and the Civil Service Employees Association and the matter proceeded to arbitration. The arbitrator [1] issued an "opinion and award" in 2013 and [2] about a year later issued a "final award" and [3] ultimately issued a "consent award" dated July 15, 2015.

In February 2017 Respondent initiated this CPLR Article 75 proceeding in an effort to vacate the final award and to "reopen" the 2013 opinion and award.* Nassau moved to dismiss Respondent's Article 75 petition, arguing that the proceeding was time-barred. The Supreme Court denied Respondent's petition, dismissing the proceeding as time-barred. Supreme Court, however then confirmed the "awards of the arbitrator" and Nassau appealed from so much of the Supreme Court's order as confirmed the three arbitration awards.

The Appellate Division said that the Supreme Court, after denying the petition and dismissing the proceeding as time-barred, should not have confirmed the three awards.

The court pointed out that:

1. Neither the Respondent nor Nassaucommenced a proceeding or moved to confirm any of the three awards;

2. Although CPLR 7511(e) provides, in relevant part, that "upon the denial of a motion to vacate or modify, [the court] shall confirm the award," this directive applies only where a party has filed an application to vacate or to modify an arbitration award and such action has been denied on the merits; and

3. Where the proceeding has been found to be time-barred, a court has no discretion to address the merits of the matter as to do so would have the practical effect of impermissibly extending the statutory time limitations set out in CPLR Article 75.

Finally, observed the Appellate Division, "to automatically confirm the three awards, when the proceeding to vacate/modify two of the awards is time-barred and there has been no application to confirm any of the awards, deprived  Nassau of an opportunity to object to confirmation."

* Respondent did not seek any relief from the 2015 consent award.

The decision is posted on the Internet at:


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