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Supreme Court, Appellate Division, Fourth Department, New York.

Honorable Edward A. HANNA, as Mayor of City of Utica, and City of Utica, Plaintiffs-Appellants-Respondents, v. Anthony ZUMPANO, as President, Utica Professional Firefighters Association, Local 32, International Association of Firefighters, AFL-CIO-CLC, Defendant-Respondent-Appellant. Matter of the Arbitration Between City of Utica, Petitioner-Appellant-Respondent, Anthony Zumpano, as President, Utica Professional Firefighters Association, Local 32, International Association of Firefighters, AFL-CIO-CLC, Respondent-Respondent-Appellant.

Decided: December 30, 1999

PRESENT:  GREEN, J.P., LAWTON, PIGOTT, JR., SCUDDER and CALLAHAN, JJ. Mary M. Roach, Albany, for plaintiffs-appellants-respondents and petitioner-appellant-respondent. Jane K. Finin, Schenectady, for defendant-respondent-appellant.

We dismiss the appeal of plaintiff/petitioner City of Utica and its Mayor, plaintiff Honorable Edward A. Hanna (collectively City).   Although Supreme Court purported to dismiss the City's petition for a stay of arbitration and action for declaratory judgment, the court nonetheless granted the relief requested by the City. Thus, the City is not an aggrieved party (see, CPLR 5511;  Town of Massena v. Niagara Mohawk Power Corp., 45 N.Y.2d 482, 488, 410 N.Y.S.2d 276, 382 N.E.2d 1139;  Matter of Brown v. Starkweather, 197 A.D.2d 840, 841, 602 N.Y.S.2d 449).

 With respect to the cross appeal, we conclude that the parties agreed to arbitrate this dispute and thus that the court erred in declaring the rights of the parties.  “While an action for declaratory judgment may be used to determine a party's status, a court in its discretion should nevertheless decline to exercise jurisdiction over such an action in favor of the contractual arbitration provisions” (Little v. Willis, 55 A.D.2d 854, 390 N.Y.S.2d 347).   Here, there is a “reasonable relationship between the subject matter of the dispute and the general subject matter” of the collective bargaining agreement between the City and defendant/respondent, and the agreement defines a grievance broadly, as “any controversy, dispute or difference between the parties arising out of the interpretation or application of this agreement” (see, Matter of Board of Educ. [Watertown Educ. Assn.], 93 N.Y.2d 132, 143, 688 N.Y.S.2d 463, 710 N.E.2d 1064).   Thus, we conclude that the parties agreed to arbitrate this dispute.

 The court should have refused to address as premature the issue whether an arbitration award of back pay for laid-off firefighters would be against public policy.   Although we have the power to vacate an award if it is violative of a strong public policy (see, Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 308, 473 N.Y.S.2d 774, 461 N.E.2d 1261), “[w]e will not presume in advance of arbitration that the arbitrator will exceed his powers * * * or fashion a remedy which will violate public policy” (Board of Educ. v. Civil Serv. Empls. Assn., 78 A.D.2d 999, 1000, 433 N.Y.S.2d 916).   Nor has the City made a showing that the sole matter sought to be submitted to arbitration is clearly beyond the arbitrator's power to grant some relief (see, Matter of Silverman [Benmor Coats], supra, at 309, 473 N.Y.S.2d 774, 461 N.E.2d 1261).

The court also erred in ruling that the City was currently in compliance with the agreement.   Although the City averred “upon information and belief” in its submissions that it came into compliance after the Court of Appeals issued its decision in Matter of City of Utica (Zumpano ), 91 N.Y.2d 964, 672 N.Y.S.2d 844, 695 N.E.2d 713, the submissions of defendant/respondent controvert that fact.   Thus, that is also an issue for arbitration.

We modify the order, therefore, by vacating the third ordering paragraph.

Appeal unanimously dismissed and on cross appeal order modified on the law and as modified affirmed without costs.


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