MONROE COUNTY DEPUTY SHERIFFS ASSOCIATION INC v. <<

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

Matter of the Arbitration Between MONROE COUNTY and Monroe County Sheriff's Office, Respondents, MONROE COUNTY DEPUTY SHERIFFS' ASSOCIATION, INC., Appellant.

Decided: March 13, 1998

Before DENMAN, P.J., and GREEN, PINE, CALLAHAN and FALLON, JJ. Harris, Beach & Wilcox by Edward Hourihan, Jr., Rochester, for Respondent-Appellant Monroe County Deputy Sheriffs' Ass'n., Inc. Charles Pilato, Rochester, for Petitioner-Respondent Monroe County Sheriff's Dept.

 We reject respondent's contention that petitioners, Monroe County and Monroe County Sheriff's Office (County), waived their right to seek vacatur of an arbitration award as in excess of the arbitrator's powers pursuant to CPLR 7511(b)(1)(iii), by participating in the arbitration without first seeking a stay.   Because some of the issues submitted by the parties for determination by the arbitrator were arbitrable, no stay would have been granted;  thus, the failure to seek a stay under such circumstances is not a waiver of the right to challenge a decision as in excess of the arbitrator's powers (see, Matter of Silverman [Benmor Coats], 61 N.Y.2d 299, 302, 309, 473 N.Y.S.2d 774, 461 N.E.2d 1261;  Matter of Consolidated Carting Corp. [Local No. 282, Intl. Brotherhood of Teamsters, Chauffeurs, Warehousemen & Helpers of Am.], 28 A.D.2d 667, 280 N.Y.S.2d 872).

 However, we agree with respondent that the County waived the right to argue that the issues that it voluntarily submitted to the arbitrator were outside of the arbitrator's powers to determine (see, United Buying Serv. Intl. Corp. v. United Buying Serv. of Northeastern N.Y., 38 A.D.2d 75, 79, 327 N.Y.S.2d 7, affd. 30 N.Y.2d 822, 334 N.Y.S.2d 911, 286 N.E.2d 284).   Those issues included whether the employee in question, who initially stated that he would retire on a specific date but later requested that his retirement be postponed for several months, resigned or was involuntarily terminated when the County refused to allow the postponement.  “The courts' power to intervene [to vacate an award] is even more restricted when the arbitrator's interpretation of the agreement resolves the question submitted, and not merely one aspect of the dispute” (Rochester City School Dist. v. Rochester Teachers Assn., 41 N.Y.2d 578, 582, 394 N.Y.S.2d 179, 362 N.E.2d 977 [emphasis added] ).   Thus, Supreme Court erred in granting the petition and vacating the arbitration award.

Order unanimously reversed on the law without costs, petition denied and award confirmed.

MEMORANDUM: