MONTANEZ v. NEW YORK CITY HOUSING AUTHORITY (2008)

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 3, 2007, which, in an action that was sent to arbitration pursuant to stipulation, granted plaintiff's motion pursuant to CPLR 7511(b) (1)(iii) to vacate the arbitration award to the extent of remanding the matter to the arbitrator “for re-opened arbitration to make a complete record, findings and decision” on plaintiff's discrimination claim, unanimously reversed, on the law, without costs, the motion denied and the award confirmed.

Contrary to the motion court's conclusion, the arbitrator's award, which expressly identified plaintiff's claims for discrimination and constructive discharge, evaluated the hearing evidence submitted in support of both claims, and denied them, was final and definite.   An award that is final and definite will not be vacated “ ‘unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power’ ” (Matter of Brown & Williamson Tobacco Corp. v. Chesley, 7 A.D.3d 368, 372, 777 N.Y.S.2d 82 [2004], quoting Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261 [1984] ).   Even assuming, as plaintiff argues, that the arbitrator overlooked facts indicating harassment and failed to consider a purported admission by a supervisor at her deposition that she “forced” plaintiff “to retire,” rejection of the discrimination claim was plausibly based (see Brown & Williamson, id.) on credited evidence showing that plaintiff had excessive absences;  that defendant's policy is to verify medical condition where, as here, an employee has sought to renew a medical accommodation;  that the supervisor who directed plaintiff to submit to an in-house physical exam was at the time unaware of plaintiff's medical status;  and that plaintiff, in order to avoid disclosure of his medical status, chose to retire on disability rather than submit to the in-house physical exam.