In re the Arbitration between State of New York Office of Mental Health & New York State Correctional Officers & Police Benevolent Ass'n

46 A.D.3d 1269, 848 N.Y.S.2d 444

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 27, 2007
• Status: Published

Opinions

Kane, J.

Appeal from a judgment of the Supreme Court (Ferradino, J.), entered July 12, 2006 in Albany County, which denied petitioner’s application pursuant to CPLR 7511 to vacate an arbitration award.

In June 2004, respondent Taras Neznanyj, an employee of petitioner, was arrested on charges of assault in the third degree and official misconduct for allegedly slapping and punching a patient at one of petitioner’s facilities. Petitioner served Neznanyj with two separate notice of discipline instruments charging him with 11 separate instances of misconduct based on him slapping and punching the patient, as well as speaking to the patient in a loud and inappropriate manner, threatening the patient to forestall reporting of the incidents and encouraging two other patients to take the blame for striking the patient. In December 2004, following a jury trial on the criminal charges, Neznanyj was convicted of assault in the third degree and official misconduct.

In March 2005, arbitration hearings commenced regarding the employee misconduct. The arbitrator preliminarily ruled that he would not hear evidence regarding the outcome of the criminal trial. He instead reviewed transcripts from the trial and heard testimony from 13 witnesses regarding the incidents. Following the hearing, the arbitrator determined that Neznanyj had spoken to the patient in a loud and inappropriate manner and dismissed the remaining charges, imposing a three-day suspension without pay as a penalty for the one sustained charge. Petitioner commenced this proceeding seeking vacatur of the award. Supreme Court confirmed the award, prompting petitioner’s appeal. We reverse.

Once a dispute has been properly submitted to arbitration, a court may only vacate the award if a provision of CPLR 7511 (b) applies (see Matter of New York City Tr. Auth. v Transport Workers’ Union of Am,., Local 100, AFL-CIO, 6 NY3d 332, 336 [2005]). Here, the arbitrator exceeded his power and committed misconduct by excluding pertinent and material evidence, which resulted in an irrational factual conclusion (see CPLR 7511 [b] [1] [i], [iii]; Matter of Professional Staff Congress/City Univ. of N.Y. v Board of Higher Educ. of City of N.Y., 39 NY2d 319, 323 [1976]; Board of Educ. of City of N.Y. v Hershkowitz, 308 AD2d 334, 336-338 [2003], lv dismissed 2 NY3d 759 [2004]).

A jury found beyond a reasonable doubt that Neznanyj, an employee of petitioner entrusted with the care of mental health patients, committed the crimes of official misconduct and assault in the third degree in connection with incidents during which he slapped and punched a patient at one of petitioner’s facilities. The arbitrator refused to admit proof of Neznanyj’s convictions into evidence at the arbitration, instead conducting a de novo hearing on the same issue.

While arbitrators do not act irrationally or exceed their authority by giving collateral estoppel effect to criminal judgments (see Matter of Beard v Town of Newburgh, 259 AD2d 613, 614 [1999], lv dismissed 93 NY2d 958 [1999]), the failure to recognize and accept judgments of conviction and give them preclusive effect in subsequent proceedings is irrational.

* Here, the arbitrator acted irrationally and committed arbitral misconduct by not admitting proof of Neznanyj’s criminal convictions which directly related to the charged employee misconduct and conclusively resolved the question of whether he committed that misconduct (see Board of Educ. of City of N.Y. v Hershkowitz, 308 AD2d at 336-338; see also Matter of Professional Staff Congress/City Univ. of N.Y. v Board of Higher Educ. of City of N.Y., 39 NY2d at 323; Matter of Janis v New York State Div. of Hous. & Community Renewal, 271 AD2d 878, 879 [2000]; Matter of Bernstein v Mitgang, 242 AD2d 328, 328-329 [1997]; Matter of Intercontinental Packaging Co. v China Natl. Cereals, Oils & Foodstuff Import & Export Corp., Shanghai Foodstuffs Branch, 172 AD2d 224, 225 [1991] [vacatur justified where arbitrator refused to consider pertinent and material evidence]). Thus, we grant petitioner’s application to vacate the arbitration award (see CPLR 7511 [b] [1] [i], [iii]).

The preclusive effect of criminal convictions may mandate a finding of employee misconduct, but the arbitrator is still able to select the appropriate penalty based upon that misconduct, giving due consideration to any public policy implications (see Matter of Binghamton City School Dist. [Peacock], 46 AD3d 1042 [2007]; City School Dist. of City of N.Y. v Campbell, 20 AD3d 313, 314 [2005]). Hence, we vacate the arbitration award and remit the matter to the arbitrator for a determination of the appropriate penalty.

Crew III, J.E, Peters and Rose, JJ., concur.

Even the pendency of an appeal does not prevent the use of a criminal judgment in a subsequent civil matter to collaterally estop the person who was the criminal defendant (see Parkhurst v Berdell, 110 NY 386, 392-393 [1888]; Matter of Capoccia, 272 AD2d 838, 846 [2000], lv dismissed 95 NY2d 887 [2000]; Samhammer v Home Mut. Ins. Co. of Binghamton, 120 AD2d 59, 64 [1986]; Matter of Amica Mut. Ins. Co. [Jones], 85 AD2d 727, 728 [1981]). Neznanyj’s convictions were affirmed on appeal (People v Neznanyj, 12 Misc 3d 143[A], 2006 NY Slip Op 51423[U] [2006]).