Matter of City of New York v Organization of Staff Analysts

Matter of City of New York v Organization of Staff Analysts 2013 NY Slip Op 00806 Decided on February 7, 2013 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 7, 2013
Mazzarelli, J.P., Acosta, Saxe, Renwick, Clark, JJ.
9217N 400321/11

[*1]In re The City of New York, et al., Petitioners-Appellants,

v

Organization of Staff Analysts, et al., Respondents-Respondents.




Michael A. Cardozo, Corporation Counsel, New York (Jane L.
Gordon of counsel), for appellants.
Law Offices of Leonard A. Shrier, P.C., New York (Leonard A.
Shrier of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered October 27, 2011, which denied petitioners' motion to vacate an arbitration award and granted respondents' cross motion to confirm, unanimously affirmed, without costs.

The penalty imposed by an arbitrator should be affirmed, unless it shocks the conscience (Matter of Waldren v Town of Islip, 6 NY3d 735 [2005]). Here, the imposition of a one year suspension, rather than termination, where the employee accessed the personnel files of two co-workers does not "shock the conscience." While it is true that an award can be overturned
where it is directly contrary to a settled public policy (see United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board of Educ. of City School Dist. of City of N.Y., 1 NY3d 72, 80 [2003]), imposing a one year suspension, rather than termination, does not violate the policy of protecting confidential information. Nor does the imposition of a penalty short of termination render the award irrational, because there is a possibility that the employee will reoffend, especially where there has been no criminal conviction and there is a clear, substantial penalty imposed to deter such future conduct (cf. Matter of Social Servs. Empls. Union, Local 371 v City of N.Y., Dept. of Juvenile Justice, 82 AD3d 644, 645 [1st Dept 2011]). Finally, the employee's lack of remorse, while relevant to the risk of recidivism, does not here rise to the level in the cases relied upon by the City (see Matter of Binghamton City School Dist. [Peacock], 46 AD3d 1042, 1044 [3d Dept [*2]2007] [school teacher's lack of remorse or understanding of moral aspect of inappropriate relationship with teen student required termination until counseling or other remedial steps taken]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 7, 2013

CLERK