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

528
CA 14-01996
PRESENT: CENTRA, J.P., SCONIERS, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF ARBITRATION BETWEEN TOWN OF
SCRIBA, PETITIONER-RESPONDENT-RESPONDENT,

                    AND                           MEMORANDUM AND ORDER

TEAMSTERS LOCAL 317 AND MICHAEL BARRY,
RESPONDENTS-PETITIONERS-APPELLANTS.


LAW OFFICES OF MAIREAD E. CONNOR, PLLC, SYRACUSE (MAIREAD E. CONNOR OF
COUNSEL), FOR RESPONDENTS-PETITIONERS-APPELLANTS.

CARACCIOLI & ASSOCIATES, PLLC, OSWEGO (KEVIN C. CARACCIOLI OF
COUNSEL), FOR PETITIONER-RESPONDENT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Oswego County (James W. McCarthy, J.), entered April 22, 2014
in a proceeding pursuant to CPLR article 75. The order and judgment
granted the petition of petitioner-respondent to vacate an arbitration
award and denied the cross petition of respondents-petitioners to
confirm the award.

     It is hereby ORDERED that the order and judgment so appealed from
is unanimously reversed on the law without costs, the petition is
denied, the cross petition is granted, and the arbitration award is
confirmed.

     Memorandum: Respondents-petitioners, Teamsters Local 317 (Union)
and Michael Barry (grievant), appeal from an order and judgment
granting the application of petitioner-respondent (petitioner) to
vacate an arbitration award, and denying the cross petition of
respondents-petitioners (respondents) to confirm the award. Among
other things, the arbitrator determined that, although maintaining a
commercial driver’s license (CDL) was a minimum standard for
employment, the terms of the collective bargaining agreement (CBA) did
not mandate the grievant’s discharge from employment upon forfeiture
of his CDL and, thus, that petitioner did not have just cause to
terminate the grievant. The arbitrator fashioned a remedy whereby the
grievant would be suspended without pay, and petitioner could
terminate his employment only if he did not regain a valid CDL on or
before a particular date. Petitioner commenced this proceeding
seeking to vacate the arbitration award on the ground that the award
exceeded the scope of the arbitrator’s power (see CPLR 7511 [b] [1]
[iii]), and respondents filed a cross petition seeking to confirm the
award pursuant to CPLR 7510. We agree with respondents that Supreme
                                 -2-                           528
                                                         CA 14-01996

Court erred in vacating the arbitration award, and we conclude that
the arbitration award should be confirmed.

     We agree with respondents that the arbitrator did not exceed a
specifically enumerated limitation on his authority. “It is well
established that an arbitrator has broad discretion to determine a
dispute and fix a remedy[ ] and that any contractual limitation on
that discretion must be contained, either explicitly or incorporated
by reference, in the arbitration clause itself” (Matter of
Communication Workers of Am., Local 1170 v Town of Greece, 85 AD3d
1668, 1669, lv denied 18 NY3d 802 [internal quotation marks omitted]).
Here, the relevant part of the CBA stated only that “[i]f the dispute
[regarding a grievance] cannot be satisfactorily resolved, the issue
may be submitted to final and binding arbitration.” Furthermore, the
stipulated issue submitted to the arbitrator asked “[w]as the
suspension and termination of the [g]rievant, Michael Barry, for just
cause? If not, what shall be the remedy?” We conclude that the CBA
provided no “specifically enumerated limitation on the arbitrator’s
power” (Matter of New York City Tr. Auth. v Transport Workers’ Union
of Am., Local 100, AFL-CIO, 6 NY3d 332, 336; see Communication Workers
of Am., Local 1170, 85 AD3d at 1670-1671), and that “the remedy sought
was expressed in open-ended terms that certainly did not limit the
arbitrator’s power to grant any specific relief” (Matter of Correction
Officers’ Benevolent Assn. v City of New York, 276 AD2d 394, 395).

     We further agree with respondents that the award was not
irrational. “ ‘An award is irrational if there is no proof whatever
to justify the award’ ” (Matter of Professional, Clerical, Tech.,
Empls. Assn. [Board of Educ. for Buffalo City Sch. Dist.], 103 AD3d
1120, 1122, lv denied 21 NY3d 863). “So long as an arbitrator
‘offer[s] even a barely colorable justification for the outcome
reached,’ the arbitration award must be upheld” (id.). Here, the
language of the CBA is “ ‘reasonably susceptible of the construction
given it by the arbitrator[ ]’ ” (id. at 1125, quoting Matter of
National Cash Register Co. [Wilson], 8 NY2d 377, 383), and the
arbitrator offered a “ ‘colorable justification for the outcome
reached’ ” (Professional, Clerical, Tech., Empls. Assn., 103 AD3d at
1122).




Entered:   June 19, 2015                        Frances E. Cafarell
                                                Clerk of the Court
