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

605
CA 15-01676
PRESENT: WHALEN, P.J., CARNI, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF ARBITRATION BETWEEN
MONROE COUNTY SHERIFF PATRICK M. O’FLYNN
AND MONROE COUNTY, PETITIONERS-RESPONDENTS,

                    AND                             MEMORANDUM AND ORDER

MONROE COUNTY DEPUTY SHERIFFS’ ASSOCIATION, INC.,
RESPONDENT-APPELLANT.


TREVETT CRISTO SALZER & ANDOLINA, P.C., ROCHESTER (DANIEL P. DEBOLT OF
COUNSEL), FOR RESPONDENT-APPELLANT.

MERIDETH H. SMITH, COUNTY ATTORNEY, ROCHESTER (MATTHEW D. BROWN OF
COUNSEL), FOR PETITIONERS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Thomas
A. Stander, J.), entered May 22, 2015 in a proceeding pursuant to CPLR
article 75. The order granted the petition to vacate a January 28,
2015 opinion and award of an arbitrator, vacated that opinion and
award and ordered a rehearing before a different arbitrator.

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

     Memorandum: In April 2014, petitioners terminated the position
of then Deputy Sergeant Paul Doser following his involvement in a one-
car rollover accident, after which it was determined that Doser was
driving while intoxicated (DWI). Petitioners charged Doser with five
violations: (1) failure to obey Vehicle and Traffic Law § 1192 (3),
DWI; (2) failure to obey Vehicle and Traffic Law § 1192 (2-a) (a),
aggravated DWI with a blood alcohol content of .18 percent or greater;
(3) failure to obey Vehicle and Traffic Law § 1192 (2-a) (b),
aggravated DWI with a child in the car; (4) failure to obey Penal Law
§ 260.10 (1), endangering the welfare of a child; and (5) engaging in
conduct unbecoming of his position. As directed by the controlling
collective bargaining agreement (CBA), petitioners held a disciplinary
hearing at which Doser was represented by respondent, the Monroe
County Deputy Sheriffs’ Association, Inc. The hearing panel
unanimously sustained all five charges and terminated Doser’s
position. Doser filed a grievance and, pursuant to the CBA, a hearing
was held before an arbitrator.

     At arbitration, the arbitrator found that certain evidence,
including the chemical test results measuring Doser’s blood alcohol
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                                                         CA 15-01676

content at .18 percent, was inadmissible. Refusing to consider that
evidence, the arbitrator concluded that the second and fifth charges
were not supported by clear and convincing evidence. The arbitrator
dismissed those charges, and sustained charges one, three, and four
only. The arbitrator then compared the decision to terminate Doser to
the results of other disciplinary matters involving other officers
also involved in DWI-related violations. The arbitrator found that
Doser’s violations were similar to those in the identified cases,
noted that none of the other officers had been terminated, and
concluded that Doser’s termination was therefore arbitrary and
capricious. The arbitrator concluded that demotion, rather than
termination, was appropriate, and ordered that Doser be reinstated and
compensated for lost pay.

     Petitioners thereafter filed this proceeding pursuant to CPLR
7511, seeking to vacate the arbitrator’s determination and award.
Supreme Court found that the arbitrator exceeded his authority by
improperly neglecting to consider certain evidence received at the
underlying hearing, vacated the award in its entirety, and ordered a
rehearing before a different arbitrator. Respondent appeals, and we
affirm.

     “Under CPLR 7511 (b) an arbitration award must be vacated if, as
relevant here, a party’s rights were impaired by an arbitrator who
‘exceeded his power or so imperfectly executed it that a final and
definite award upon the subject matter submitted was not made’ ”
(Matter of Kowaleski [New York State Dept. of Correctional Servs.], 16
NY3d 85, 90, quoting CPLR 7511 [b] [1] [iii]). “It is well settled
that a court may vacate an arbitration award only if it violates a
strong public policy, is irrational, or clearly exceeds a specifically
enumerated limitation on the arbitrator’s power” (Matter of Falzone
[New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534). “Outside of
these narrowly circumscribed exceptions, courts lack authority to
review arbitral decisions, even where ‘an arbitrator has made an error
of law or fact’ ” (Kowaleski, 16 NY3d at 91, quoting Falzone, 15 NY3d
at 534).

     Here, we conclude that the arbitrator clearly exceeded his
authority as provided by the CBA. The CBA mandated that “[t]he
arbitrator shall review the record of the disciplinary hearing and
determine if the finding of guilt was based upon clear and convincing
evidence.” Rather than comply with that mandate and review the record
from the hearing, the arbitrator considered a portion of the record
only, deciding to exclude certain evidence from his review. Having
failed to review that which he was required to review, the court
properly concluded that the arbitrator exceeded his authority and
vacated the arbitration award (see generally Kowaleski, 16 NY3d at 91;
Matter of Allstate Ins. Co. v GEICO [Govt. Empls. Ins. Co.], 100 AD3d
878, 879; Matter of State of N.Y. Off. of Mental Health [New York
State Correctional Officers & Police Benevolent Assn., Inc.], 46 AD3d
1269, 1271, lv dismissed 10 NY3d 826). We reject respondent’s
contention that any error in this regard was harmless. As the
arbitrator’s decision clearly states, the refusal to consider the
inappropriately-excluded evidence directly resulted in the dismissal
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                                                         CA 15-01676

of two out of the five charges.

     We reject respondent’s further contention that, even if it was
error to exclude certain evidence, that error did not impact the
arbitrator’s determination that the imposition of the penalty of
termination was arbitrary and capricious. As the arbitrator’s
decision stated, that determination relied on a comparison between the
conduct alleged against Doser and that committed by other officers in
other cases cited by respondent. Having excluded certain evidence
against Doser, however, we conclude that the arbitrator made the
comparison without the benefit of a full review of the record.

     Finally, we reject respondent’s alternative contention that the
court erred in ordering a rehearing before a different arbitrator.
Upon vacating an arbitration award, a court has the discretion to
“order a rehearing and determination of all or any of the issues
either before the same arbitrator or before a new arbitrator” (CPLR
7511 [d]; see Matter of Wydra v Brach, 114 AD3d 865, 866; Goldberg v
Nugent, 85 AD3d 459, 459; East Ramapo Cent. Sch. Dist. v East Ramapo
Teachers Assn., 108 AD2d 717, 717). Inasmuch as the arbitrator herein
exceeded his authority under the CBA, we conclude that the court did
not abuse its discretion in ordering that a different arbitrator
conduct the rehearing (see Goldberg, 85 AD3d at 459; Matter of Alsante
[Allstate Ins. Co.], 259 AD2d 964, 964-965).




Entered:   July 1, 2016                         Frances E. Cafarell
                                                Clerk of the Court
