IN RE: TOWN OF NEWBURGH (2000)

In a proceeding pursuant to CPLR 7503 to stay arbitration, the appeal is from an order of the Supreme Court, Orange County (Peter C. Patsalos, J.), dated April 20, 1999, which granted the petition.

ORDERED that the order is reversed, on the law, with costs, the petition is denied, and the proceeding is dismissed on the merits.

An earlier grievance and arbitration proceeding between the parties resulted in an arbitration award dated December 4, 1999.   That award upheld the termination of an employee of the Town Highway Department based on his having tested positive for marihuana.   It did not, however, directly address the question of whether, pursuant to the parties' collective bargaining agreement, the employee could be suspended without pay for more than 30 days pending disposition of the disciplinary charges against him.   The appellant union argues that final resolution of the charges occurred upon the issuance of the December 4, 1999, arbitration award, and therefore the employee in question was wrongly suspended without pay for a period of more than 30 days prior to the issuance of the award.   This assertion forms the basis of a second grievance for which the appellant separately demanded arbitration.

 We disagree with the petitioner's argument that arbitration of the second grievance necessarily presents a risk of inconsistent awards.   It is not clear whether the claim advanced in the second arbitration proceeding was in fact considered or resolved by the arbitrator in the first proceeding.   Under these circumstances, the correct rule to apply is that which holds that it is for a successive arbitrator to decide what if any res judicata or collateral estoppel effect is to be accorded to a prior arbitration award (see generally, Board of Educ. v. Patchogue-Medford Congress of Teachers, 48 N.Y.2d 812, 424 N.Y.S.2d 122, 399 N.E.2d 1143;  Matter of County of Jefferson and Jefferson County Deputy Sheriff's Assn., 265 A.D.2d 802, 695 N.Y.S.2d 841;  Matter of City School Dist. v. Tonawanda Educ. Assn., 63 N.Y.2d 846, 482 N.Y.S.2d 258, 472 N.E.2d 34;  Board of Educ. Florida Union Free School Dist., Florida Teachers Assn., 104 A.D.2d 411, 478 N.Y.S.2d 935, affd. 64 N.Y.2d 822, 486 N.Y.S.2d 938, 476 N.E.2d 337;  Medina Power Co., Small Power Producers, Inc., 241 A.D.2d 915, 661 N.Y.S.2d 399;  Port Auth. of New York and New Jersey v. Port Auth. Police Sergeants Benevolent Assn., 225 A.D.2d 503, 639 N.Y.S.2d 808;  cf., Matter of American Honda Motor Co. v. Dennis, 259 A.D.2d 613, 686 N.Y.S.2d 777;  Motor Vehicle Acc. Indem. Corp. v. Travelers Ins. Co., 246 A.D.2d 420, 667 N.Y.S.2d 741;  Ulster Elec. Supply Co. v. Local 1430 Intl. Bhd. of Elec. Workers, 253 A.D.2d 765, 677 N.Y.S.2d 485;  Aetna Cas. & Sur. Co. v. Bonilla, 219 A.D.2d 708, 631 N.Y.S.2d 438).

The alternative grounds advanced in the petition for a stay are without merit.

MEMORANDUM BY THE COURT.