IN RE: Application of the CITY OF NEW YORK (1998)

Order, Supreme Court, New York County (William McCooe, J.), entered November 28, 1996, which granted petitioner's motion to vacate the remedy portion of an arbitration award dated February 8, 1996 rendered in Matter of Arbitration Between Local 1549, D.C. 37 and the New York City Office of Labor Relations (Case No. A5475-94), unanimously affirmed, without costs.

 The remedy fashioned by the arbitrator exceeded his power as delimited in the applicable provisions of the citywide collective bargaining agreement at issue.   Pursuant to that agreement, the arbitrator was empowered only to order petitioner to follow a particular course of action to remedy a determined health and safety violation.   Plainly, this carefully circumscribed grant of power did not authorize that portion of the arbitrator's award reimbursing the grievants for annual leave taken by them during the period of the conceded violation.

 The City's participation in the arbitration did not effect a waiver of its right to seek post-arbitration vacatur of the award on the ground that it exceeded the arbitrator's power (Matter of Silverman [Benmore Coats], 61 N.Y.2d 299, 473 N.Y.S.2d 774, 461 N.E.2d 1261;  Hackett v. Milbank Tweed Hadley & McCloy, 80 N.Y.2d 870, 871-872, 587 N.Y.S.2d 598, 600 N.E.2d 229).  Nor may a waiver be inferred from the parties' stipulation which merely framed the issue submitted to the arbitrator.

We have reviewed the other arguments made by the parties and find them to be without merit.

MEMORANDUM DECISION.