IN RE: CITY OF NEW YORK (2018)

Order, Supreme Court, New York County (Arthur F. Engoron, J.), entered January 17, 2017, which granted the petition to vacate an arbitration award, denied the grievance, and dismissed the proceeding brought pursuant to CPLR article 75, unanimously affirmed, without costs.

An arbitrator exceeds his or her powers when the “award violates a strong public policy, is irrational or clearly exceeds a specifically enumerated limitation on the arbitrator's power” (Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16 N.Y.3d 85, 90, 917 N.Y.S.2d 82, 942 N.E.2d 291 [2010] [internal quotation marks omitted] ).  A provision in a contract that the arbitrator may not alter or modify a contract does not limit the arbitrator's power to resolve the dispute by interpreting the contract based on his or her findings as to the parties' intent (see Twiss Assoc. v. Imptex Intl. Corp, 189 A.D.2d 672, 673, 592 N.Y.S.2d 367 [1st Dept. 1993], lv denied 81 N.Y.2d 710, 600 N.Y.S.2d 197, 616 N.E.2d 854 [1993] ).  However, an award should be vacated where it is not derived from the contract, but from the deliberate and intentional consideration of matters outside the contract (see Matter of City of New York v. Davis, 146 A.D.2d 480, 483, 536 N.Y.S.2d 757 [1st Dept. 1989] ).

Here, the record shows that the arbitration award added to or modified the collective bargaining agreement, which was expressly prohibited in the agreement (id;  see Matter of Port Auth. Police Benevolent Assn. [Port Auth. of N.Y. & N.J.], 235 A.D.2d 359, 652 N.Y.S.2d 741 [1st Dept. 1997] ).  The arbitrator's decision rewrote the contract for the parties by expanding the number of workers entitled to the assignment differential, when the contract expressly limited the differential to workers at a specific facility.

We have considered respondents' remaining contentions and find them unavailing.