Long v. Mellen

145 A.D.2d 633

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 29, 1988
• Status: Published

Opinion

— In a proceeding to vacate an arbitrator’s award upholding the termination of the petitioner’s employment, the petitioner appeals from a judgment of the Supreme Court, Queens County (Durante, J.), dated January 20, 1988, which dismissed the petition.

Ordered that the judgment is affirmed, with costs.

The final determination terminating the petitioner’s employment resulted from an arbitration award and accordingly, the proceeding was properly one for relief pursuant to CPLR article 75, rather than CPLR article 78 as denominated by the petitioner. Since the court in the exercise of its discretion had the power to treat the proceeding as one pursuant to CPLR article 75, it was not improper for it to consider whether the petition stated a claim for relief under that article (CPLR 103 [c]; Matter of Malatestinic v Board of Educ., 132 AD2d 661). Further, on the merits, the court properly denied the application, since the petition failed to set forth any facts which would warrant vacatur of the arbitrator’s award (CPLR 7511 [b] [1]; Matter of Malatestinic v Board of Educ., supra). Mangano, J. P., Bracken, Eiber, Spatt and Sullivan, JJ., concur.