Matter of Noel v Bianco

Matter of Noel v Bianco 2016 NY Slip Op 07398 Decided on November 10, 2016 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 November 10, 2016
Tom, J.P., Sweeny, Richter, Manzanet-Daniels, Webber, JJ.
2148 653097/14

[*1]In re Lesly Noel, Petitioner-Appellant,

v

Carmen Bianco, etc., et al., Respondents-Respondents.

Law Office of Kevin P. Sheerin, Mineola (Kevin P. Sheerin of counsel), for appellant.

James B. Henly, Brooklyn (Robert K. Drinan of counsel), for respondents.

Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered August 12, 2015, denying the petition seeking to vacate an arbitration award dated July 14, 2014 terminating petitioner's employment with respondent New York City Transit Authority upon a finding of misconduct, and dismissing the proceeding brought pursuant to CPLR article 75, unanimously affirmed, without costs.

The arbitration award is not subject to a heightened level of judicial scrutiny, because it was held pursuant to a voluntarily-entered collective bargaining agreement (see Matter of Motor Veh. Acc. Indem. Corp. v Aetna Cas. & Sur. Co., 89 NY2d 214, 223 [1996]; Matter of Tarantino v MTA N.Y. City Tr. Auth., 129 AD3d 738, 738 [2d Dept 2015], lv denied 26 NY3d 917 [2016]). Petitioner failed to demonstrate that the award should be vacated under the applicable standard of review (see CPLR 7511[b][1]; Matter of New York State Correctional Officers & Police Benevolent Assn. v State of New York, 94 NY2d 321, 326 [1999]; Hackett v Milbank, Tweed, Hadley & McCloy, 86 NY2d 146, 154-155 [1995]). Under that standard, courts are not permitted to review an arbitrator's findings of fact, including credibility determinations (see 94 NY2d at 328; Matter of New York City Tr. Auth. v Transport Workers' Union of Am., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]).

We perceive no reason to disturb the imposed penalty of termination (see generally 94 NY2d at 326, 328).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 10, 2016

CLERK