IN RE: Darnel POWELL

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IN RE: Darnel POWELL, appellant, v. BOARD OF EDUCATION OF WESTBURY UNION FREE SCHOOL DISTRICT, respondent.

Decided: January 31, 2012

MARK C. DILLON, J.P., ANITA R. FLORIO, CHERYL E. CHAMBERS, and ROBERT J. MILLER, JJ. Law Office of Steven A. Morelli, P.C., Garden City, N.Y. (Josh Beldner of counsel), for appellant. Jaspan Schlesinger, LLP, Garden City, N.Y. (Stanley A. Camhi, Jessica M. Baquet, and Lawrence J. Tenenbaum of counsel), for respondent.

In a proceeding pursuant to CPLR article 75 to vacate a determination of an arbitrator made pursuant to Education Law § 3020–a, dated August 7, 2010, which, after a hearing, inter alia, sustained certain charges of misconduct against the petitioner and terminated the petitioner's employment, the petitioner appeals from an order of the Supreme Court, Nassau County (Galasso, J.), dated October 25, 2010, which, in effect, denied the petition and confirmed the determination.

ORDERED that the order is affirmed, with costs.

Where, as here, the obligation to arbitrate arises through a statutory mandate (see Education Law § 3020–a), the determination of the arbitrator is subject to “closer judicial scrutiny” under CPLR 7511(b) than it would otherwise receive (Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 AD3d 1012, 1013 [internal quotation marks omitted]; see Matter of Progressive Cas. Ins. Co. v. New York State Ins. Fund, 47 AD3d 633, 634). “An award in a compulsory arbitration proceeding must have evidentiary support and cannot be arbitrary and capricious” (Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 AD3d at 1013; see Matter of Motor Veh. Acc. Indem. Corp. v. Aetna Cas. & Sur. Co., 89 N.Y.2d 214, 223). “In addition, article 75 review questions whether the decision was rational or had a plausible basis” (Matter of Petrofsky [Allstate Ins. Co.], 54 N.Y.2d 207, 211). “When reviewing compulsory arbitrations in education proceedings such as this, the court should accept the arbitrators' credibility determinations, even where there is conflicting evidence and room for choice exists” (Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 AD3d at 1013; see Matter of Berenhaus v. Ward, 70 N.Y.2d 436, 443–444; Matter of Tasch v. Board of Educ. of City of N.Y., 3 AD3d 502, 503).

Here, the petitioner argues, in essence, that the arbitrator's determination was arbitrary and capricious because the arbitrator did not resolve issues of credibility in his favor. However, where, as here, “the evidence is conflicting and room for choice exists,” this Court “may not weigh the evidence or reject the choice made” by the arbitrator (Matter of Berenhaus v. Ward, 70 N.Y.2d at 443–444 [internal quotation marks omitted]; see Matter of Saunders v. Rockland Bd. of Coop. Educ. Servs., 62 AD3d at 1013; Matter of Tasch v. Board of Educ. of City of N.Y., 3 AD3d at 503).

Moreover, contrary to the petitioner's contention, the arbitrator properly refused to admit into evidence his proffered polygraph test evidence (see Matter of Harris v. Novello, 276 A.D.2d 848, 850; Matter of Lessoff, 231 A.D.2d 229, 230).

Finally, the petitioner's contention that the respondent failed to comply with the mandates of Education Law § 3020–a(2)(a) by failing to differentiate between the penalty it sought in the event he requested a hearing on the charges preferred against him, and the penalty it sought in the event he did not request a hearing, was waived by his failure to raise it before the arbitrator (see CPLR 7511[b][1][iv]; Matter of Sims v. Siegelson, 246 A.D.2d 374, 377; Matter of Peckerman v. D & D Assoc., 165 A.D.2d 289, 296).

Accordingly, the Supreme Court properly, in effect, denied the petition and confirmed the determination.

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