IN RE: ARBITRATION BETWEEN TOWN OF

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Supreme Court, Appellate Division, Fourth Department.

IN RE: ARBITRATION BETWEEN TOWN OF GREECE, PETITIONER–APPELLANT,

CA 17–00351

Decided: September 29, 2017

PRESENT:  CENTRA, J.P., CARNI, LINDLEY, TROUTMAN, AND WINSLOW, JJ. HARRIS BEACH PLLC, PITTSFORD (EDWARD A. TREVVETT OF COUNSEL), FOR PETITIONER–APPELLANT. CREIGHTON, JOHNSEN & GIROUX, BUFFALO (IAN HAYES OF COUNSEL), FOR RESPONDENT–RESPONDENT.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by vacating that part of the order directing petitioner to hold a step two hearing within 30 days and as modified the order is affirmed without costs.

Memorandum:  Petitioner commenced this proceeding pursuant to CPLR article 75 seeking a permanent stay of arbitration of a grievance arising from petitioner's termination of one of respondent's members.  Petitioner appeals from an order that, inter alia, denied its application for a permanent stay and directed petitioner to hold a hearing pursuant to step two of the three-step grievance procedure set forth in the collective bargaining agreement (CBA) within 30 days.

Contrary to petitioner's contention, we conclude that Supreme Court properly denied petitioner's request for a permanent stay of arbitration.  We agree with petitioner, however, that the court erred in directing it to hold a step two hearing, and we therefore modify the order accordingly.  Contrary to the court's determination, a step two hearing is not a condition precedent to arbitration under the terms of the CBA. Where, as here, the CBA contains a broad arbitration clause and does not expressly identify any conditions precedent to arbitration, the alleged failure of a party to comply strictly with the contractual grievance procedures or time limits is not a proper ground for a stay of arbitration because such issues are to be resolved by the arbitrator (see Matter of Kachris [Sterling], 239 A.D.2d 887, 888;  see also Matter of Enlarged City Sch. Dist. of Troy [Troy Teachers Assn.], 69 N.Y.2d 905, 907;  Matter of United Nations Dev. Corp. v Norkin Plumbing Co., 45 N.Y.2d 358, 363–364).  Inasmuch as a step two hearing is a permissive and not a mandatory part of the CBA's grievance and arbitration procedure, strict compliance with each step in the procedure is not a condition precedent to arbitration (see Matter of Kenmore–Town of Tonawanda Union Free Sch. Dist. [Ken–Ton Sch. Empls.  Assn.], 110 AD3d 1494, 1496).

Mark W. Bennett

Clerk of the Court