         SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department
1461
CA 12-01015
PRESENT: SCUDDER, P.J., SMITH, FAHEY, CARNI, AND MARTOCHE, JJ.


IN THE MATTER OF THE ARBITRATION BETWEEN
LIVINGSTON COUNTY, PETITIONER-APPELLANT,

                    AND                           MEMORANDUM AND ORDER

CIVIL SERVICE EMPLOYEES ASSOCIATION, INC.,
LOCAL 1000, AFSCME, AFL-CIO, LIVINGSTON
COUNTY EMPLOYEES LOCAL 826 AND LIVINGSTON
COUNTY EMPLOYEES UNIT, RESPONDENTS-RESPONDENTS.


OSBORN, REED & BURKE, LLP, ROCHESTER (DAVID W. LIPPITT OF COUNSEL),
FOR PETITIONER-APPELLANT.

CREIGHTON, JOHNSEN & GIROUX, BUFFALO (JONATHAN G. JOHNSEN OF COUNSEL),
FOR RESPONDENTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Livingston County
(William P. Polito, J.), entered February 3, 2012 in a proceeding
pursuant to CPLR article 75. The order denied the petition to stay
arbitration.

     It is hereby ORDERED that the order so appealed from is
unanimously reversed on the law without costs and the petition is
granted.

     Memorandum: Petitioner appeals from an order denying the
petition to stay arbitration in this CPLR article 75 proceeding.
Petitioner and respondents are parties to a collective bargaining
agreement (CBA) and were involved in a grievance that proceeded
through various steps in the grievance process and ultimately resulted
in petitioner’s denial of the grievance by a written decision issued
on October 4, 2011. Respondents gave petitioner notice of intent to
submit the grievance to arbitration by letter dated October 27, 2011,
which was received by the Livingston County Administrator on October
28, 2011.

     Pursuant to article 24, section 1 of the CBA, “[c]ompliance with
the time limits for submitting a notice of intent to arbitrate . . .
shall be a condition precedent to arbitration. Failure to submit a
notice of intent to submit a grievance to arbitration . . . shall thus
bar the grievance from proceeding to arbitration.” That section
further provides that respondents must notify petitioner of their
intent to submit a grievance to arbitration no later than 15 working
days after a written decision was issued at the second step of the
                                 -2-                         1461
                                                        CA 12-01015

grievance process. Petitioner sought a stay of arbitration based on
respondents’ failure to comply with that notice requirement, and
Supreme Court denied the petition. That was error. Although the CBA
here contains a broad arbitration agreement, the CBA also contains an
express provision establishing the condition precedent at issue (see
Matter of Kachris [Sterling], 239 AD2d 887, 887-888; see also Matter
of County of Rockland [Primiano Constr. Co.], 51 NY2d 1, 7-8). Where,
as here, the condition precedent is expressly made part of the CBA,
the issue of compliance with the condition is for the court in the
first instance (see Matter of Raisler Corp. [New York City Hous.
Auth.], 32 NY2d 274, 279).




Entered:   December 21, 2012                   Frances E. Cafarell
                                               Clerk of the Court
