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

1191
CA 15-00147
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF ARBITRATION BETWEEN CIVIL
SERVICE EMPLOYEES ASSOCIATION, INC., LOCAL
1000, AFSCME, A.F.L.-C.I.O. ONONDAGA LOCAL
834, SYRACUSE CITY SCHOOL DISTRICT UNIT 6,
AND PETER RYAN, PETITIONERS-RESPONDENTS,

                    AND                           MEMORANDUM AND ORDER

BOARD OF EDUCATION OF SYRACUSE CITY SCHOOL
DISTRICT, HONORABLE PATRICIA BODY, PRESIDENT,
AND SHARON L. CONTRERAS, SUPERINTENDENT OF SCHOOLS,
RESPONDENTS-APPELLANTS.


FERRARA, FIORENZA, LARRISON, BARRETT & REITZ, P.C., EAST SYRACUSE
(CRAIG M. ATLAS OF COUNSEL), FOR RESPONDENTS-APPELLANTS.

D. JEFFREY GOSCH, SYRACUSE, FOR PETITIONERS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Onondaga County (James
P. Murphy, J.), entered May 7, 2014 in a proceeding pursuant to CPLR
article 75. The order, inter alia, granted the application to confirm
an arbitration award.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by vacating the award of attorneys’
fees and as modified the order is affirmed without costs.

     Memorandum: Respondents in this CPLR article 75 proceeding
appeal from an order granting the application of petitioners to
confirm an arbitration award in their favor, denying respondents’
cross motion to vacate the award, and directing respondents to pay
petitioners’ attorneys’ fees. The arbitrator determined following a
hearing that respondents had violated the parties’ collective
bargaining agreement by terminating the employment of Peter Ryan
(petitioner) in July 2011 and, as a remedy, the arbitrator directed
respondents to reinstate petitioner to his prior position, credit him
with the seniority to which he would have been entitled had his
employment not been wrongly terminated, and pay him “back pay for the
salary and other benefits [he] lost as a result of [his] improper
termination,” retroactive to 30 days before he filed his grievance.

     Respondents contend that the award is not final and definite, and
thus subject to vacatur under CPLR 7511 (b) (1) (iii), because the
arbitrator did not specify whether respondents are entitled to an
                                 -2-                          1191
                                                         CA 15-00147

offset based on funds petitioner received following his termination
from unemployment insurance and other employment. We reject that
contention. An arbitration award is nonfinal or indefinite “only if
it leaves the parties unable to determine their rights and
obligations, if it does not resolve the controversy submitted or if it
creates a new controversy” (Matter of Meisels v Uhr, 79 NY2d 526, 536;
see Yoonessi v Givens, 78 AD3d 1622, 1622-1623, lv denied 17 NY3d
718). Here, the award sufficiently defined the parties’ rights and
obligations notwithstanding its failure to address the offset issue
(see Matter of Civil Serv. Empls. Assn., Local 1000, AFSCME, AFL-CIO
[State of New York], 223 AD2d 890, 891-892). We note that there is no
indication in the record that respondents asked the arbitrator for an
offset at the hearing, and that, although the arbitrator retained
jurisdiction “with respect to the remedy until April 1, 2013,” which
was approximately six weeks after the award was rendered, respondents
did not seek clarification of the award before that date.

     We conclude, however, that Supreme Court erred in awarding
attorneys’ fees to petitioners as a sanction for frivolous conduct
without issuing a written decision setting forth the conduct on which
the award is based and the reasons why the court found that conduct to
be frivolous, as required by 22 NYCRR 130-1.2 (see Matter of
Bedworth-Holgado v Holgado, 85 AD3d 1589, 1590; Matter of Gigliotti v
Bianco, 82 AD3d 1636, 1638). We therefore modify the order by
vacating the award of attorneys’ fees.




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
