Matter of Board of Education of Greenburgh Eleven Union Free School District v Roy Polonio

Matter of Board of Educ. of the Greenburgh Eleven Union Free School Dist. v Polonio 2004 NY Slip Op 05441 [8 AD3d 560] June 21, 2004 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 25, 2004

In the Matter of Board of Education of the Greenburgh Eleven Union Free School District, Respondent,
v
Roy Polonio, Appellant.

—[*1]Motion by the respondent for leave to reargue appeals from two orders of the Supreme Court, Westchester County, entered July 23, 2001, and October 15, 2001, respectively, which were determined by decision and order of this Court dated September 15, 2003.

Upon the papers filed in support of the motion and the papers filed in opposition thereto, it is

Ordered that the motion is granted, and, upon reargument, the decision and order of this Court dated September 15, 2003 (see Matter of Board of Educ. of Greenburgh Eleven Union Free School Dist. v Polonio, 308 AD2d 491 [2003]), is recalled and vacated, and the following decision and order is substituted therefor:

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, Roy Polonio appeals (1) from an order of the Supreme Court, Westchester County (Nastasi, J.), entered July 23, 2001, which granted the petition and denied his cross motion to confirm the award, and (2), as limited by his brief, from so much of an order of the same court, entered October 15, 2001, as, [*2]upon reargument, adhered to its original determination.

Ordered that the appeal from the order entered July 23, 2001 is dismissed, as that order was superseded by the order entered October 15, 2001; and it is further,

Ordered that the order entered October 15, 2001, is reversed insofar as appealed from, upon reargument, the order entered July 23, 2001, is vacated, the petition is denied, and the proceeding is dismissed; and it is further,

Ordered that one bill of costs is awarded to the appellant.

The Supreme Court erred in granting the petition as the petitioner failed to demonstrate that the Hearing Officer's determination was arbitrary and capricious, or that it was not supported by the evidence in the record (see Matter of Hegarty v Board of Educ. of City of N.Y., 5 AD3d 771 [2004]; Matter of Tasch v Board of Educ. of City of N.Y., 3 AD3d 502 [2004]; Matter of Board of Educ. of Fla. Union Free School Dist. v DePace, 301 AD2d 521 [2003]). Prudenti, P.J., Florio, Adams and Crane, JJ., concur.