In re the Arbitration between Buffalo Professional Firefighters Ass'n, Local 282 & City of Buffalo

12 A.D.3d 1087, 784 N.Y.S.2d 472, 2004 N.Y. App. Div. LEXIS 13915

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 19, 2004
• Status: Published

Opinion

Appeal from an order of the Supreme Court, Erie County (Frank A. Sedita, Jr., J.), entered December 16, 2003 in a proceeding pursuant to CPLR article 75. The order granted the petition to confirm an arbitration award and denied respondent’s cross motion to vacate the award.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: On appeal from an order confirming an award of arbitration, respondent contends, inter alia, that petitioner’s grievance was not arbitrable as a matter of law. Respondent’s earlier petition to stay arbitration was denied by Supreme Court, and, although respondent appealed from that order, the appeal was dismissed for respondent’s failure to perfect the appeal in a timely manner. We conclude that respondent forfeited its present contention when it failed to seek interim relief from this Court and participated in arbitration (see Matter of Commerce & Indus. Ins. Co. v Nester, 90 NY2d 255, 263-264 [1997]; Matter of Windsor Group v Gentilcore, 8 AD3d 582 [2004]). Moreover, because respondent’s earlier appeal presented that issue and was dismissed for failure to prosecute, we decline to exercise our discretion to review respondent’s contention on this appeal (see Rubeo v National Grange Mut. Ins. Co., 93 NY2d 750, 754, 756 [1999]).

The court properly granted the petition to confirm the arbitration award and denied respondent’s cross motion to vacate the award. Respondent did not meet its “heavy burden of demonstrating that the arbitrator’s award is ‘violative of a strong public policy . . . [or] totally irrational or clearly exceeds a specifically enumerated limitation on the arbitrator’s power’ ” (Matter of Obot [New York State Dept. of Correctional Servs.], 224 AD2d 1006, 1006 [1996], affd 89 NY2d 883 [1996], quoting Matter of Town of Callicoon [Civil Serv. Empls. Assn., Town of Callicoon Unit], 70 NY2d 907, 909 [1987]; see Matter of County of Steuben [Civil Serv. Employees’ Assn., Local 1000, AFSCME, AFL-CIO], 292 AD2d 810, 811 [2002], lv denied 98 NY2d 606 [2002]). Present—Hurlbutt, J.P., Kehoe, Gorski, Martoche and Hayes, JJ.