IN RE: Josseth HENRY (2024)

DECISION & ORDER

In a proceeding pursuant to CPLR article 75 to vacate or modify an arbitration award dated December 17, 2019, the petitioner appeals from a judgment of the Supreme Court, Kings County (Peter P. Sweeney, J.), dated October 13, 2020.  The judgment denied the petition and dismissed the proceeding.

ORDERED that the judgment is affirmed, with costs.

The petitioner, an employee of the respondent, New York State Workers' Compensation Board, commenced this proceeding pursuant to CPLR article 75 to vacate or modify an arbitration award denying her grievance challenging eight charges of misconduct and insubordination that had been filed against her and finding that the penalty of termination was proper.  In a judgment dated October 13, 2020, the Supreme Court denied the petition and dismissed the proceeding.  The petitioner appeals.

“Judicial review of arbitration awards is extremely limited” (Matter of Barrella v. State of New York Off. of Mental Health, 175 A.D.3d 495, 496, 103 N.Y.S.3d 853, citing Wien & Malkin LLP v. Helmsley–Spear, Inc., 6 N.Y.3d 471, 479, 813 N.Y.S.2d 691, 846 N.E.2d 1201).  “Where, as here, an arbitration award was rendered after a consensual arbitration process pursuant to the terms of a collective bargaining agreement, the award may not be vacated on the ground that the arbitrator exceeded his or her power unless it violates a strong public policy, is irrational, or clearly exceeds a specifically enumerated limitation of the arbitrator's power” (Matter of Lewis v. New York City Tr. Auth., 183 A.D.3d 738, 121 N.Y.S.3d 883;  see CPLR 7511[b][1][iii];  Barrella v. State of New York Off. of Mental Health, 175 A.D.3d at 496, 103 N.Y.S.3d 853).

Here, the petitioner failed to demonstrate that the arbitration award violated a strong public policy, was irrational, or clearly exceeded a specifically enumerated limitation of the arbitrator's power (see CPLR 7511[b];  Matter of Lewis v. New York City Tr. Auth., 183 A.D.3d at 738, 121 N.Y.S.3d 883;  Matter of Ross v. New York City Metro. Tr. Auth., 174 A.D.3d 627, 628, 101 N.Y.S.3d 879;  Matter of Transit Workers Union, Local 100 v. New York City Tr. Auth., 152 A.D.3d 530, 531, 57 N.Y.S.3d 530).  Moreover, contrary to the petitioner's contention, the arbitrator properly considered the petitioner's entire record of employment in determining a penalty (see Matter of Levy v. New York State Workers' Compensation Bd., 292 A.D.2d 388, 389, 738 N.Y.S.2d 377), and the penalty of termination was not so disproportionate to the offenses charged as to be shocking to one's sense of fairness (see Matter of Russo v. New York City Dept. of Educ., 25 N.Y.3d 946, 948, 6 N.Y.S.3d 549, 29 N.E.3d 896;  Matter of Weinstein v. New York State Workers' Compensation Bd., 135 A.D.3d 948, 949, 22 N.Y.S.3d 900).

The petitioner waived her contention that the arbitrator was not impartial by failing to raise this contention upon becoming aware of the basis for the alleged bias or partiality and thereafter continuing to participate in the proceeding (see Matter of Piller v. Schwimmer, 135 A.D.3d 766, 768, 22 N.Y.S.3d 572;  Matter of Atlantic Purch., Inc. v. Airport Props. II, LLC, 77 A.D.3d 824, 825, 909 N.Y.S.2d 528).

DILLON, J.P., MILLER, DOWLING and VOUTSINAS, JJ., concur.