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

668
CA 11-02021
PRESENT: SCUDDER, P.J., SMITH, CARNI, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF THE ARBITRATION BETWEEN
CITY OF BUFFALO, PETITIONER-APPELLANT,

                    AND                           MEMORANDUM AND ORDER

BUFFALO PROFESSIONAL FIREFIGHTERS ASSOCIATION,
IAFF LOCAL 282, RESPONDENT-RESPONDENT.


HODGSON RUSS LLP, BUFFALO (JOSHUA FEINSTEIN OF COUNSEL), FOR
PETITIONER-APPELLANT.

CREIGHTON, JOHNSEN & GIROUX, BUFFALO (JONATHAN G. JOHNSEN OF COUNSEL),
FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Erie County (Diane Y.
Devlin, J.), entered June 16, 2011 in a proceeding pursuant to CPLR
article 75. The order denied the petition to modify an arbitration
award.

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

     Memorandum: Petitioner (hereafter, City) appeals from an order
denying its petition to modify an arbitration award in favor of
respondent. On July 1, 2004, the City modified the health insurance
plan provided to members of unions such as respondent that represent
City employees. The unions, including respondent, filed a grievance
with respect to the modified plan, alleging that the modified plan
violated the parties’ collective bargaining agreement (CBA). In 2008,
an arbitrator issued an award finding that the City’s actions violated
the CBA and awarded relief to both active members and retired former
members of respondent. The City filed the instant petition seeking to
vacate the award to the extent that it granted relief to the retirees.

     Contrary to the City’s contention, the arbitrator did not exceed
his authority in fashioning an award that granted relief to the
retirees. The issue whether respondent had standing to represent
retired employees was for the arbitrator to determine (see generally
Matter of City of Ithaca [Ithaca Paid Fire Fighters Assn., IAFF, Local
737], 29 AD3d 1129, 1130-1131; City of Buffalo v A.F.S.C.M.E. Council
35, Local 264, 107 AD2d 1049, 1049-1050), and the record is devoid of
any evidence that the elimination of health insurance options did not
affect the retirees such that respondent would lack standing to
represent them. Thus, the City failed to demonstrate that the
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                                                         CA 11-02021

arbitrator exceeded his authority (see Matter of City of Elmira
[Elmira Professional Firefighter’s Assn., AFL-CIO, I.A.F.F.-Local
709], 34 AD3d 1075, 1077; see also Baker v Board of Educ., Hoosick
Falls Cent. School Dist., 3 AD3d 678, 680-681).

     The City further contends that the arbitration award was
“indefinite” because the arbitrator granted its request to delay
implementation of the award until a related police union case
completed the appeal process and thus was finalized. We reject that
contention. “An award is subject to vacatur as indefinite or nonfinal
‘only if it leaves the parties unable to determine their rights or
obligations, if it does not resolve the controversy submitted, or if
it creates a new controversy’ ” (Matter of Board of Educ. of
Amityville Union Free School Dist. v Amityville Teacher’s Assn., 62
AD3d 992, 993), and that is not the case here.




Entered:   June 8, 2012                         Frances E. Cafarell
                                                Clerk of the Court
