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

207
CA 10-01718
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


IN THE MATTER OF THE ARBITRATION BETWEEN
TOWN OF WEBB UNION FREE SCHOOL DISTRICT,
PETITIONER-APPELLANT,

                    AND                           MEMORANDUM AND ORDER

ATLANTIC ENERGY SERVICES, INC.,
RESPONDENT-RESPONDENT.


FERRARA, FIORENZA, LARRISON, BARRETT & REITZ, P.C., EAST SYRACUSE
(KATHERINE E. GAVETT OF COUNSEL), FOR PETITIONER-APPELLANT.

THE MURRAY LAW FIRM, PLLC, CLIFTON PARK (JOSEPH C. BERGER OF COUNSEL),
FOR RESPONDENT-RESPONDENT.


     Appeal from an order and judgment (one paper) of the Supreme
Court, Herkimer County (Michael E. Daley, J.), entered October 19,
2009 in a proceeding pursuant to CPLR article 75. The order and
judgment dismissed the petition to vacate an arbitration award.

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

     Memorandum: Petitioner appeals from an order and judgment
dismissing its petition to vacate an arbitration award (see CPLR 7511
[b] [1]). We reject petitioner’s contention that the arbitrator
exceeded her authority by refusing to apply the law. It is well
settled that, “ ‘[a]bsent [a] provision in the arbitration clause
itself, an arbitrator is not bound by principles of substantive law or
by rules of evidence’ ” (Matter of Mays-Carr [State Farm Ins. Co.], 43
AD3d 1439, 1440, quoting Matter of Silverman [Benmor Coats], 61 NY2d
299, 308). There was no such provision in the arbitration clause
here, and thus the arbitrator was entitled to do justice as she saw
fit (see Silverman, 61 NY2d at 308). We further reject petitioner’s
contention that the arbitration award violated public policy (see
generally Matter of Police Benevolent Assn. [City of Buffalo], 4 NY3d
660, 664).

     Finally, although we are concluding herein that Supreme Court
properly dismissed the petition, we decline to grant respondent’s
request for attorney’s fees and costs associated with this appeal.
While a court may impose sanctions for frivolous conduct, including
conduct that is “completely without merit in law” (22 NYCRR 130-1.1
[c] [1]), or that “is undertaken primarily to delay or prolong the
                                 -2-                           207
                                                         CA 10-01718

resolution of the litigation, or to harass or maliciously injure
another” (22 NYCRR 130-1.1 [c] [2]), there is no indication of any
such frivolous conduct here.




Entered:   February 18, 2011                    Patricia L. Morgan
                                                Clerk of the Court
