IN RE: Stanley W. HILL (1999)

In a proceeding to confirm an arbitration award dated April 30, 1996, which awarded the grievant Shirley Lashinsky vacation, holiday, and sick pay retroactive to October 1991, the appeal is from an order and judgment (one paper) of the Supreme Court, Kings County (Garry, J.), entered September 4, 1997, which denied the appellants' cross motion to dismiss the proceeding, and confirmed the award.

ORDERED that the order and judgment is modified, on the law, by deleting the provisions thereof which granted that branch of the petition which was to confirm the arbitration award with respect to relief granted for the period more than 75 days prior to March 2, 1994, and denied that branch of the cross motion which was to dismiss that branch of the petition, and substituting therefor provisions denying that branch of the petition and granting that branch of the cross motion;  as so modified, the order and judgment is affirmed, without costs or disbursements, and the matter is remitted to the Supreme Court, Kings County, for the entry of an appropriate judgment.

The agreement to arbitrate specifically provides that an employee must file a grievance “within a reasonable period not to exceed 75 days following the action complained of” (emphasis in original), and further provides that an arbitration panel “shall be without power or authority to make any decision * * * [c]ontrary to, or inconsistent with, or modifying or varying in any way, the terms of this agreement or of applicable law or rules or regulations having the force and effect of law”.   The grievant filed her grievance on March 2, 1994, for benefits accruing since October 1991.   The arbitration panel granted her the relief requested, holding that the 75-day period of limitations ran from “when the grievant ‘discovered’ the infraction”.   In so doing, the arbitration panel exceeded an express limitation of its powers (see, Brijmohan v. State Farm Ins. Co., 92 N.Y.2d 821, 677 N.Y.S.2d 55, 699 N.E.2d 414;  Matter of Local 345 of Retail Stores Employees Union [Heinrich Motors], 63 N.Y.2d 985, 987, 483 N.Y.S.2d 997, 473 N.E.2d 247;  Matter of Local Union 1566, Intl. Brotherhood of Elec. Workers, AFL-CIP v. Orange and Rockland Utils., 126 A.D.2d 547, 510 N.Y.S.2d 671).  However, the grievant is entitled to relief for the period not barred by the contractual Statute of Limitations (see, Jensen v. General Elec. Co., 82 N.Y.2d 77, 85, 603 N.Y.S.2d 420, 623 N.E.2d 547;  Loiacono v. Goldberg, 240 A.D.2d 476, 658 N.Y.S.2d 138).

MEMORANDUM BY THE COURT.