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

371
CA 11-01941
PRESENT: SCUDDER, P.J., CENTRA, CARNI, LINDLEY, AND MARTOCHE, JJ.


IN THE MATTER OF THE ARBITRATION BETWEEN
CITY OF OSWEGO, PETITIONER-APPELLANT,

                    AND                           MEMORANDUM AND ORDER

OSWEGO CITY FIREFIGHTERS ASSOCIATION,
LOCAL 2707, RESPONDENT-RESPONDENT.


ROEMER WALLENS GOLD & MINEAUX LLP, ALBANY (EARL T. REDDING OF
COUNSEL), FOR PETITIONER-APPELLANT.

SATTER & ANDREWS, LLP, SYRACUSE (MIMI C. SATTER OF COUNSEL), FOR
RESPONDENT-RESPONDENT.


     Appeal from an order of the Supreme Court, Oswego County (Norman
W. Seiter, Jr., J.), entered May 5, 2011 in a proceeding pursuant to
CPLR article 75. The order denied the petition and confirmed the
arbitration award.

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

     Memorandum: Petitioner, City of Oswego (City), appeals from an
order that denied its application seeking to vacate an arbitration
award pursuant to CPLR 7511 (b) (1) (iii) and granted the application
of respondent, Oswego City Firefighters Association, Local 2707
(Union), improperly denominated as petitioner in the second ordering
paragraph in the order on appeal, to confirm the award pursuant to
CPLR 7510. In its petition, the City contended that the arbitrator
exceeded his authority by rendering an award that was in direct
contravention of the Retirement and Social Security Law, the Civil
Service Law and the “strong public policies” underlying those laws.
We conclude that Supreme Court properly denied the petition and
confirmed the award.

     The City and the Union were parties to an agreement concerning
the employment of firefighters in the City. That agreement was to “be
effective as of January 1, 2007, and [to] remain[] in full force and
effect” through December 31, 2009. As pertinent to this appeal,
section 26.1 of the agreement provided that the City would pay the
firefighters’ costs in the New York State Police and Fireman’s
Retirement System (PFRS). In addition, the City agreed to make a Plan
384-d (see Retirement and Social Security Law § 384-d) available to
the firefighters.
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                                                         CA 11-01941

     In 2009, the Legislature enacted Retirement and Social Security
Law article 22, which provides in relevant part that all members of
the PFRS who joined the PFRS on or after the effective date of article
22 would be required to contribute 3% of their annual wages to the
State retirement fund in which they were enrolled (§ 1204). The
Legislature, however, created an exception setting forth that,
“[n]otwithstanding any provision of law to the contrary, nothing in
this act shall limit the eligibility of any member of an employee
organization to join a special retirement plan open to him or her
pursuant to a collectively negotiated agreement with any state or
local government employer, where such agreement is in effect on the
effective date of this act and so long as such agreement remains in
effect thereafter; provided, however, that any such eligibility shall
not apply upon termination of such agreement for employees otherwise
subject to the provisions of article twenty-two of the retirement and
social security law” (L 2009, ch 504, part A, § 8 [hereafter, Section
8]).

     By letter dated January 12, 2010, which was shortly after article
22 took effect, the New York State Retirement System (Retirement
System) requested that the City provide copies of any agreements
covering PFRS employees that were “in effect” on January 9, 2010. The
City responded by enclosing, inter alia, the subject agreement, and
noting that it “expired on December 31, 2009” and was “currently being
renegotiated.” Ultimately, the Retirement System advised the City by
letter dated March 2, 2010 that firefighters hired on or after the
effective date of article 22 would have to contribute toward their
retirements inasmuch as the last contract “expired on December 31,
2009.”

     In the meantime, the City had hired several firefighters and,
when the City refused to contribute toward their respective
retirements, the Union filed a grievance and sought arbitration of
that grievance. The parties stipulated to the exhibits to be
submitted to the arbitrator and left it to the arbitrator to frame the
issue. In his “opinion and award,” the arbitrator concluded, inter
alia, that the firefighters who were hired by the City after the
effective date of article 22 were eligible to elect to participate in
the 384-d plan provided for in section 26.1 of the agreement and that
the City would be required to pay for the employees’ contributions as
negotiated under the terms of that agreement.

     As a preliminary matter, we reject the Union’s contention that
the City, by participating in the arbitration, waived its contention
that the arbitrator exceeded his authority. It is well settled that a
party who fails to apply for a stay of arbitration and who
participates in the arbitration waives any contention that the claim
is not arbitrable or that the arbitrator lacked the power to resolve
the question submitted (see Rochester City School Dist. v Rochester
Teachers Assn., 41 NY2d 578, 583; Matter of County of Onondaga [Civil
Serv. Empls. Assn.], 248 AD2d 1026; Matter of RRN Assoc. [DAK Elec.
Contr. Corp.], 224 AD2d 250). Participation in arbitration, however,
does not constitute the waiver of a contention that the arbitrator,
during the course of the proceeding or in fashioning the actual award,
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                                                         CA 11-01941

exceeded his or her authority (see Matter of Brijmohan v State Farm
Ins. Co., 239 AD2d 496, 497, affd 92 NY2d 821; Matter of Silverman
[Benmor Coats], 61 NY2d 299, 310).

     Also as a preliminary matter, however, we agree with the Union
that any documents that were not submitted to the arbitrator should
not be considered in reviewing the propriety of the award (see Matter
of Campbell v New York City Tr. Auth., 32 AD3d 350, 352; Matter of
Hirsch Constr. Corp. [Cooper], 181 AD2d 52, 55, lv denied 81 NY2d
701), even though they were attached to the petition and thus were
properly included in the record on appeal (see CPLR 5526; 22 NYCRR
1000.4 [a] [2]; cf. Wells Fargo Bank Intl. v Saud, 97 AD2d 945).

     Turning now to the merits, we agree with the Union that the court
properly confirmed the arbitration award. It is axiomatic that
“courts are obligated to give deference to the decision of the
arbitrator” (Matter of New York City Tr. Auth. v Transport Workers’
Union of Am., Local 100, AFL–CIO, 6 NY3d 332, 336), and that “[a]n
award may be vacated on the ground that an arbitrator exceeded his or
her power ‘only where the arbitrator’s award violates a strong public
policy, is irrational or clearly exceeds a specifically enumerated
limitation on the arbitrator’s power’ ” (Matter of Communication
Workers of Am., Local 1170 v Town of Greece, 85 AD3d 1668, 1669, lv
denied 18 NY3d 802, quoting New York City Tr. Auth., 6 NY3d at 336;
see Matter of Buffalo Teachers Fedn., Inc. v Board of Educ. of City
School Dist. of City of Buffalo, 50 AD3d 1503, 1505, lv denied 11 NY3d
708).

     Contrary to the contention of the City, the award herein is not
contrary to existing statutes, does not violate a strong public policy
and is not irrational. The crucial issue on this appeal is whether
the exception in Section 8 applies to the subject firefighters. That
issue turns on whether the agreement between the City and the Union
was still in effect at the time the subject firefighters joined the
PFRS. Pursuant to what is known as the Triborough doctrine (see
Matter of Professional Staff Congress-City Univ. of N.Y. v New York
State Pub. Empl. Relations Bd., 7 NY3d 458, 466), as embodied in Civil
Service Law § 209-a (1) (e), it is an improper practice, but for an
exception not relevant here, for a public employer “to refuse to
continue all the terms of an expired agreement until a new agreement
is negotiated” (§ 209-a [1] [e] [emphasis added]; see Matter of
Triborough Bridge & Tunnel Auth. [District Council 37 & Local 1396], 5
PERB ¶ 3037). Because a new agreement between the City and the Union
had not yet been negotiated at the time the subject firefighters
joined the PFRS, all of the terms of the expired agreement were still
in effect (see generally Association of Surrogates & Supreme Ct.
Reporters Within City of N.Y. v State of New York, 79 NY2d 39, 45).
Through Section 8, the Legislature recognized the need to provide for
employees who had been accorded certain retirement benefits under
agreements that were still in effect. Thus, the determination to
apply the Section 8 exception to the subject firefighters does not
“violate a defined and discernible public policy . . . or . . .
create[] an explicit conflict with other laws and their attendant
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                                                         CA 11-01941

policy concerns” (Matter of New York State Correctional Officers &
Police Benevolent Assn. v State of New York, 94 NY2d 321, 327).

     Contrary to the further contention of the City, a determination
to apply the Section 8 exception in this case does not constitute a
“negotiation” of retirement benefits as prohibited by Civil Service
Law § 201 (4) and Retirement and Social Security Law § 470 (cf. Matter
of City of Yonkers v Yonkers Fire Fighters, Local 628, IAFF, AFL-CIO,
90 AD3d 1043). The determination whether a certain group of employees
falls within a legislatively-created exception to a statute is not a
negotiation of retirement benefits. It is merely an interpretation of
Section 8 as it applies to a previously-negotiated agreement.

     While we recognize that this decision is inconsistent with the
determination of the Retirement System as set forth in its letter to
the City dated March 2, 2010, “where, as here, the question is one of
pure statutory construction, dependent only on accurate apprehension
of legislative intent, judicial review is less restricted and there is
little basis to rely upon any special competence or expertise of the
administrative agency” (New York City Campaign Fin. Bd. v Ortiz, 38
AD3d 75, 81; see generally Matter of KSLM-Columbus Apts., Inc. v New
York State Div. of Hous. & Community Renewal, 5 NY3d 303, 312).




Entered:   March 16, 2012                       Frances E. Cafarell
                                                Clerk of the Court
