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

1055
CA 16-01077
PRESENT: CARNI, J.P., DEJOSEPH, NEMOYER, TROUTMAN, AND SCUDDER, JJ.


IN THE MATTER OF ARBITRATION BETWEEN TOWN OF
GREECE, PETITIONER-APPELLANT,

                    AND                           MEMORANDUM AND ORDER

THE UNIFORMED PATROLMEN’S ASSOCIATION OF THE
GREECE POLICE DEPARTMENT, ON BEHALF OF MICHAEL
HAUGH, RESPONDENT-RESPONDENT.


HARRIS BEACH PLLC, PITTSFORD (KYLE W. STURGESS OF COUNSEL), FOR
PETITIONER-APPELLANT.

TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (MICHAEL F. GERACI OF
COUNSEL), FOR RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Monroe County (Evelyn
Frazee, J.), entered October 28, 2015 in a proceeding pursuant to CPLR
article 75. The order denied the petition for a stay of arbitration.

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

     Memorandum: Petitioner commenced this proceeding seeking a
permanent stay of arbitration pursuant to CPLR 7503 (b) after
respondent filed a demand for arbitration concerning disciplinary
charges against former Town of Greece police officer Michael Haugh.
Supreme Court denied the petition, and we affirm.

     We reject petitioner’s contention that its newly-adopted
disciplinary rules and regulations applied retroactively to this
disciplinary matter. In August 2013, petitioner provided Haugh with
written notice of the charges and specifications of misconduct and, in
reliance upon the provisions of the collective bargaining agreement
(CBA) between petitioner and respondent, Haugh elected to waive his
rights under Civil Service Law § 75 and to proceed under the grievance
procedure set forth in the CBA. On October 1, 2013, respondent
requested that the matter proceed to Step 3 of the grievance
procedure, which provided for arbitration. On December 17, 2013, the
Town Board of petitioner adopted a resolution to amend the
disciplinary rules and regulations for petitioner’s Police Department,
which superseded the grievance provisions of the CBA and applied to
all prospective police disciplinary matters. On November 19, 2014,
respondent served the demand for arbitration.
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                                                         CA 16-01077

     “[T]he general presumption against retroactive application of
statutes is . . . designed . . . to prevent impairment of vested
rights,” such as those derived from a contractual agreement (Rooney v
City of Long Beach, 42 AD2d 34, 39, appeal dismissed 33 NY2d 897). A
legislative “amendment will have prospective application only, unless
its language clearly indicates that a contrary interpretation is to be
applied” (Matter of Deutsch v Catherwood, 31 NY2d 487, 489-490; see
McKinney’s Cons Laws of NY, Book 1, Statutes § 51 [b]; Becker v Huss
Co., 43 NY2d 527, 539). Although an “exception is generally made for
so-called remedial legislation or statutes dealing with procedural
matters” (Becker, 43 NY2d at 540), “statutes affecting substantive
rights and liabilities are presumed to have only prospective effect”
(Bennett v New Jersey, 470 US 632, 639).

      Here, we conclude that Haugh’s contractual right to proceed under
the CBA’s arbitration provision had vested before petitioner adopted
its new rules and regulations (see generally Rooney, 42 AD2d at 39).
The new rules and regulations altered Haugh’s substantive contractual
remedy by removing any prospect of arbitration (see generally Matter
of Schlaifer v Sedlow, 51 NY2d 181, 185), and are therefore presumed
to have only prospective effect (see generally Bennett, 470 US at
639).

     Furthermore, the new rules and regulations do not expressly set
forth the date on which they went into effect. Even assuming,
arguendo, that they were intended to become effective immediately upon
adoption, we conclude that they provide no indication that they were
intended to operate retroactively upon a disciplinary matter that had
commenced prior to their adoption, had gone through the first two
steps of the CBA’s grievance procedure, and was about to proceed to
arbitration (see Brooks v County of Onondaga, 167 AD2d 862, 862; see
generally Becker, 43 NY2d at 540). Moreover, “there is no indication
that the purpose of the [regulations] was remedial in nature” (Matter
of Yasiel P. [Lisuan P.], 79 AD3d 1744, 1745, lv denied 16 NY3d 710).
Petitioner’s reliance upon Matter of Town of Wallkill v Civil Serv.
Empls. Assoc., Inc. (Local 1000, AFSCME, AFL-CIO, Town of Wallkill
Police Dept. Unit, Orange County Local 836) (19 NY3d 1066) is
misplaced inasmuch as, in that case, the Town of Wallkill enacted its
new disciplinary procedures before it initiated disciplinary action
against the police officers (id. at 1068). Therefore, under the
circumstances of this case, we conclude that the new regulations did
not retroactively supersede the CBA’s grievance procedure with respect
to the pending disciplinary matter (see generally Morales v Gross, 230
AD2d 7, 12).

     We reject petitioner’s further contention that the demand for
arbitration is an attempt to challenge the validity of the new
disciplinary rules and regulations and is untimely because it should
have been asserted in a proceeding pursuant to CPLR article 78, which
is subject to a four-month statute of limitations (see CPLR 217 [1]).
Upon our review of the record, we conclude that the demand for
arbitration was based upon alleged breaches of the CBA and did not
advance a challenge to the newly enacted rules and regulations (cf.
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                                                         CA 16-01077

Matter of County of Nassau v Civil Serv. Empls. Assn., 265 AD2d 326,
326, lv denied 94 NY2d 759).




Entered:   February 3, 2017                    Frances E. Cafarell
                                               Clerk of the Court
