                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: February 26, 2015                   516853
________________________________

In the Matter of KEITH M.
   KARNOFSKY,
                    Appellant,
      and                                   MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF
   CORRECTIONS AND COMMUNITY
   SUPERVISION et al.,
                    Respondents.
________________________________


Calendar Date:   January 5, 2015

Before:   McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

                             __________


      Sanders & Sanders, Cheektowaga (Harvey P. Sanders of
counsel), for appellant.

      Eric T. Schneiderman, Attorney General, Albany (Kate H.
Nepveu of counsel), for respondents.

                             __________


McCarthy, J.P.

      Appeals (1) from an order of the Supreme Court (Devine,
J.), entered July 26, 2012 in Albany County, which, in a
proceeding pursuant to CPLR article 75, among other things,
denied petitioner's motion to hold respondents in contempt of a
prior order of said court confirming an arbitration award, (2)
from an order of said court, entered November 2, 2012, which
denied petitioner's motion to vacate the order entered July 26,
2012, and (3) from an order of said court, entered April 30,
2013, which denied petitioner's motion for leave to renew with
respect to his prior motion to hold respondents in contempt.
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      Petitioner is a rabbi who was hired as a chaplain within
the state correctional system and began working 50% of a full-
time position at Attica Correctional Facility, which also
included covering the nearby Wende and Wyoming Correctional
Facilities, in November 2005. A month later, he began working
20% of a full-time position at Livingston Correctional Facility,
which included covering the nearby Groveland Correctional
Facility. Between the two assignments and five facilities,
petitioner was working 70% of a full-time position, or 28 hours
per week. In mid-November 2006, respondent Department of
Corrections and Community Supervision (hereinafter DOCCS)1
notified petitioner that he was being terminated for failing to
satisfactorily complete his probationary employment. Petitioner
contacted the Department of Civil Service, which responded to
petitioner that DOCCS had rescinded the probationary termination.
DOCCS then suspended petitioner and filed a notice of discipline,
applicable to nonprobationary employees. Pursuant to the state's
collective bargaining agreement with petitioner's union, the
matter proceeded to arbitration. The arbitrator found that DOCCS
did not have cause to issue the notice of discipline or terminate
petitioner. As a result, the arbitrator directed DOCCS to
"return [petitioner] to his position as Chaplain-Rabbi servicing
the 'Attica Hub, Groveland and/or Livingston Correctional
Facilities'" and give him back pay "on a straight-time basis."

      Petitioner sought to confirm the arbitrator's award and
respondents sought to vacate the award. In July 2009, Supreme
Court granted petitioner's application to confirm. DOCCS then
reinstated petitioner as a chaplain serving the five correctional
facilities for 28 hours per week. After a short time, DOCCS cut
petitioner's schedule to 20 hours per week. With regard to the
monetary portion of the award, DOCCS only provided petitioner
with back pay for 50% of a full-time position. Petitioner moved
to hold respondents in contempt of the order confirming the
arbitration award because they failed to provide back pay for the
20% of a full-time position, as well as hazard pay and interest.


    1
        Our references to DOCCS include its predecessor, the
Department of Correctional Services (see L 2011, ch 62, part C,
subpart B, § 79).
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Unbeknownst to petitioner, Supreme Court granted respondents an
extension to respond to the contempt motion and attempted to
notify petitioner of such by letter, but the court misaddressed
the envelope and the letter was returned to the court as
undeliverable. When he did not receive a response from
respondents, petitioner moved for a default judgment on his
motion. After receiving what appeared to be very late responsive
papers, petitioner submitted a reply asking the court to
disregard those papers as untimely or, if the court did not do
so, to permit petitioner to reply on the merits. In a July 2012
order, Supreme Court denied the motion for default judgment as
moot, considering the extension, and denied the contempt motion.

      Upon receiving that order, petitioner discovered that an
extension had been granted and that Supreme Court had
misaddressed the letter so informing him. Based on his inability
to reply on the merits, petitioner moved to vacate the July 2012
order pursuant to CPLR 317 and 5015 (a). The court found that
petitioner was seemingly seeking leave to renew, rather than to
vacate the order, but denied the motion as inadequate.
Petitioner then moved for leave to renew, and Supreme Court
denied that motion as well. Petitioner appeals from the July
2012 order, as well as the orders denying his two subsequent
motions.

      Supreme Court properly denied petitioner's motion to vacate
the July 2012 order, but should have granted his motion for leave
to renew. The cited statutory bases for vacatur, CPLR 317 and
5015 (a), are inapplicable to this situation, and the vacatur
motion was not identified as seeking leave to renew (see CPLR
2221 [e] [1]). Petitioner's last motion, however, was identified
as seeking renewal (see CPLR 2221 [e] [1]). Petitioner also
satisfied the second element for renewal, namely "new facts not
offered on the prior motion that would change the prior
determination" (CPLR 2221 [e] [2]). Petitioner explained that he
never received the court's letter granting respondents an
extension to respond to his contempt motion, and submitted the
envelope – obtained from the court's file – showing the incorrect
address and the postal marks indicating that the letter had been
returned as undeliverable. He also submitted communications from
himself to respondents' counsel and the court indicating his
                              -4-                516853

intent to reply to any response, along with his reply on the
default motion asking – in the alternative – that, if the court
did not grant him a default judgment, he be provided an
opportunity to reply on the merits. This constituted a
reasonable justification for his failure to present information
on the merits at the time of the original contempt motion (see
CPLR 2221 [e] [3]).

      Having now granted renewal, we can review the July 2012
order based on the supporting papers originally submitted and
those submitted on the renewal motion. When parties dispute the
meaning of an arbitration award that has been confirmed, the
court must determine the arbitrator's meaning and intent, as
expressed in the language of the award and its findings (see
Matter of Pine St. Assoc., L.P. v Southridge Partners, L.P., 107
AD3d 95, 100 [2013]). In doing so, the "court should adopt the
most reasonable meaning of the text" and, if any ambiguity
arises, interpret the award in a light most favorable to the
prevailing party (id. at 100). In response to the contempt
motion, respondents argued for the first time that petitioner was
subject to two probationary periods, one for his 50% position at
Attica and one for his 20% position at Livingston. Respondents
argue that petitioner's probationary employment for the 20%
position began later and he was properly terminated prior to the
end of that probationary period, such that the arbitration only
dealt with his 50% position. Petitioner contends that he held
one position as chaplain for 70% of a full-time position, with
one probationary period that ended one year after he began
working at Attica. Under petitioner's reasoning, he was never
terminated from the 20% position and the arbitration dealt with
him as an employee working 70% of a full-time position. While
the parties contend that documentary proof supports their
respective positions, the record is unclear. DOCCS initially
issued separate notices to petitioner terminating his
probationary employment, one for Attica and one for Livingston.
On the other hand, some of DOCCS's letters refer to a singular
termination or position. A Department of Civil Service letter
stated that DOCCS rescinded petitioner's probationary termination
(singular, not plural), without limiting it to the 50% position.
DOCCS then issued a notice of discipline and proceeded to
arbitration, again without specifying the extent of the position,
                              -5-                516853

which could have been intended to remove him from his 50%
position or his 70% employment.

      The arbitrator began his background recitation by stating
that petitioner was employed by DOCCS as a chaplain "at its
Attica Hub Facility on a part-time basis" on a certain date.
Petitioner apparently only had his own office at Attica, had one
DOCCS identification card issued by Attica, one supervisor who
was at Attica, and other indicia that Attica was his home base
for both his 50% position and his 20% position. The arbitrator
could have been referring to either a 50% schedule or 70%
schedule when saying that petitioner worked "on a part-time
basis." His start date, and the associated date for the end of
his probationary period, would be the same for the 50% position
alone or if, as petitioner asserts, he only had one position
equal to 70% of a full-time position. In his conclusion and
award, the arbitrator directed DOCCS to "return [petitioner] to
his position as Chaplain-Rabbi servicing the 'Attica Hub,
Groveland and/or Livingston Correctional Facilities.'" This
language seems to clearly indicate that the arbitrator was
including the 20% portion of petitioner's employment, and that
petitioner had not been terminated from that position. If the
arbitrator was not supposed to consider the 20% position, then he
had no authority to direct that DOCCS reinstate petitioner as a
chaplain at Groveland or Livingston. Yet respondents did not ask
the arbitrator to correct or modify his award and did not argue
before Supreme Court in 2009 that the award should be vacated on
this basis (see CPLR 7511 [b] [1] [iii]). After confirmation in
2009, DOCCS reinstated petitioner to a 70% schedule at all five
correctional facilities that he formerly served, until, after a
few months, DOCCS reduced his schedule to 50%, realigned the
facilities so that the 50% position covered four of the
facilities, and then refused to pay petitioner back pay for the
20% position, apparently on the basis of respondents' asserted
belief that petitioner had been terminated from that position
during his probationary period in 2006. Considering all of the
evidence, much of which is equivocal, along with the arbitrator's
language in the conclusion and award section of his decision, and
interpreting the award in a light most favorable to petitioner,
as the prevailing party, we conclude that the arbitrator's award
directed that DOCCS return petitioner to his employment as
                              -6-                516853

chaplain-rabbi for both the 50% and 20% positions – or, perhaps
more accurately, one 70% position.

      Although respondents were required by the arbitration award
to give petitioner back pay for the 20% position and failed to do
so, we do not find respondents in contempt for failing to comply
with the 2009 confirmation order. To establish civil contempt,
petitioner was required to prove by clear and convincing evidence
that respondents "knowingly disobeyed a clear and unequivocal
court order" (Hush v Taylor, 121 AD3d 1363, 1364 [2014]; see
Matter of Dobies v Brefka, 83 AD3d 1148, 1153 [2011]). Our
interpretation of the arbitrator's award, which differs from the
interpretation given by Supreme Court, shows that the
confirmation order was not entirely clear. Thus, we decline to
find that respondents knowingly violated that order.

      As for petitioner's argument that he is entitled to hazard
pay as part of his back pay, the arbitrator's award entitled him
to be reimbursed for back pay "on a straight-time basis." We
interpret this as excluding hazard pay. Although the
arbitrator's award does not mention interest, the general rule is
that, upon a judgment confirming an arbitration award, "interest
should be provided from the date of the award" (Board of Educ. of
Cent. School Dist. No. 1 of Towns of Niagara, Wheatfield,
Lewiston & Cambria v Niagara-Wheatfield Teachers Assn., 46 NY2d
553, 558 [1979]; see Matter of New York State Correctional
Officers & Police Benevolent Assn., Inc. [State of New York], 49
AD3d 1074, 1074 [2008], lv denied 11 NY3d 701 [2008]). Inasmuch
as the confirmation order did not mention interest – nor would it
be expected to, considering that interest is due on the judgment
issued after confirmation – petitioner did not establish that
respondents are in contempt of that order by failing to pay him
interest, despite our current instruction that they must do so.

     Egan Jr., Lynch and Clark, JJ., concur.
                              -7-                  516853

      ORDERED that the orders entered July 26, 2012 and November
2, 2012 are affirmed, without costs.

      ORDERED that the order entered April 30, 2013 is reversed,
on the law, without costs, motion to renew granted and, upon
renewal, adhere to the denial of the motion for contempt for the
reasons stated in this Court's decision.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
