        SUPREME COURT OF THE STATE OF NEW YORK
          Appellate Division, Fourth Judicial Department

1256.1
CA 12-00679
PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.


IN THE MATTER OF NIAGARA FRONTIER TRANSIT
METRO SYSTEM, INC., PETITIONER-APPELLANT,

                    V                             MEMORANDUM AND ORDER

AMALGAMATED TRANSIT LOCAL UNION 1342 AND
VINCENT G. CREHAN, RESPONDENTS-RESPONDENTS.


DAVID J. STATE, BUFFALO (WAYNE R. GRADL OF COUNSEL), FOR
PETITIONER-APPELLANT.

REDEN & O’DONNELL, LLP, BUFFALO (TERRY M. SUGRUE OF COUNSEL), FOR
RESPONDENTS-RESPONDENTS.


     Appeal from a judgment and order (one paper) of the Supreme
Court, Erie County (Deborah A. Chimes, J.), entered January 6, 2012 in
a proceeding pursuant to CPLR article 75. The judgment and order
denied the petition to stay arbitration.

     It is hereby ORDERED that the judgment and order so appealed from
is unanimously affirmed without costs.

     Memorandum: Petitioner and Amalgamated Transit Local Union 1342
(respondent) are parties to a series of successive collective
bargaining agreements governing the terms and conditions of employment
of bargaining unit employees. Here, one of those employees began
employment with petitioner as a bus operator in 2004, and in 2010 was
involved in an accident following which she submitted a workers’
compensation benefits claim. In the course of processing the claim,
petitioner learned that, in September 2000, the employee had been
involved in an automobile accident, resulting in cervical and lumbar
spine injuries that carried a diagnosis of total disability for
approximately one year, and a “permanent partial disability”
thereafter. The employee did not disclose those injuries in the
medical history portion of her employment application in 2004.
Petitioner annulled her employment on the ground that she had provided
false information in her application, whereupon respondent filed a
grievance on behalf of the employee. Petitioner then commenced this
proceeding under CPLR article 75 seeking a stay of arbitration on the
ground that the employee’s employment was void ab initio based on
material omissions in her employment application, and there was no
agreement between the parties to arbitrate the dismissal of an
employee whose employment was void ab initio.
                                 -2-                   1256.1
                                                    CA 12-00679

     Supreme Court properly denied the petition. Contrary to
petitioner’s contention, it did not have a common-law right to void
the employee’s employment ab initio. Any preexisting injuries that
the employee had would not automatically disqualify her from her
position; rather, any such preexisting injuries must actually
“interfere[] with the ability to control and safely operate a bus” (15
NYCRR 6.10; see generally Matter of Richie v Coughlin, 148 AD2d 178,
182-183, appeal dismissed 75 NY2d 765, lv denied 75 NY2d 707, cert
denied 498 US 824). Thus, because any disqualification would be
discretionary, the employee “must be afforded ‘a meaningful
opportunity to invoke the discretion of the decision maker [as] a
precondition to his [or her] termination’ ” (Prue v Hunt, 157 AD2d
160, 165, affd 78 NY2d 364).




Entered:   November 9, 2012                    Frances E. Cafarell
                                               Clerk of the Court
