Opinion
2012-04-12
In re Thomas H. BEALS, Petitioner–Appellant, v. NEW YORK CITY TRANSIT, Respondent–Respondent.
The Law Offices of Fausto E. Zapata, Jr., P.C., New York (Craig Hanlon of counsel), for appellant. Martin B. Schnabel, Brooklyn (Baimusa Kamara of counsel), for respondent.
The Law Offices of Fausto E. Zapata, Jr., P.C., New York (Craig Hanlon of counsel), for appellant. Martin B. Schnabel, Brooklyn (Baimusa Kamara of counsel), for respondent.
SAXE, J.P., SWEENY, MOSKOWITZ, RENWICK, ABDUS–SALAAM, JJ.
Order and judgment (one paper), Supreme Court, New York County (Barbara Jaffe, J.), entered March 9, 2011, granting respondent's cross motion to dismiss the petition to vacate the arbitration award confirming petitioner's termination, unanimously affirmed, without costs.
The arbitrator properly declined to apply the collective bargaining agreement's statute of limitations on the ground that, pursuant to its terms, it had not commenced running while an investigation of the conduct leading to the disciplinary charges against petitioner was under way. In any event, any error by the arbitrator in interpreting the facts or applying the law on this issue did not provide a basis for vacatur of the award ( see Matter of Adolphe v. New York City Bd. of Educ., 89 A.D.3d 532, 533, 932 N.Y.S.2d 482 [2011] ). Petitioner waived his claim that the arbitrator should have enforced his witness subpoenas by failing to seek a stay of the arbitration and a court ruling compelling compliance and by continuing with the arbitration. Moreover, an arbitrator's erroneous evidentiary rulings may support vacatur only if the evidence would have been pertinent and material ( see Matter of Professional Staff Congress/City Univ. of N.Y. v. Board of Higher Educ. of City of N.Y., 39 N.Y.2d 319, 323, 383 N.Y.S.2d 592, 347 N.E.2d 918 [1976] ). The unproduced testimony of the investigators would have been merely hearsay and cumulative of the testimony based on personal knowledge that had been heard from witnesses and targets of petitioner's misconduct, the testimony of the Transit Authority managers that the use of profanity was common in the workplace would not have shed light on other charges or rebutted the charge that petitioner's use of profanity was pervasive, and the woman working in a rehabilitation facility was not a Transit Authority employee subject to subpoena. To the extent that any of the unproduced testimony may have been useful for impeachment, the foreclosure of collateral evidence going to credibility is not misconduct ( see Kaminsky v. Segura, 26 A.D.3d 188, 189, 810 N.Y.S.2d 25 [2006]; Matter of Smith v. Suffolk County Police Dept., 202 A.D.2d 678, 679, 609 N.Y.S.2d 645 [1994], lv. denied 84 N.Y.2d 807, 621 N.Y.S.2d 516, 645 N.E.2d 1216 [1994] ). Petitioner fails to point to any provision in the collective bargaining agreement to support his contention that the arbitrator exceeded a restriction on his power ( see Matter of Chaindom Enters., Inc. v. Furgang & Adwar, L.L.P., 10 A.D.3d 495, 497, 781 N.Y.S.2d 504 [2004], lv. denied 4 N.Y.3d 709, 797 N.Y.S.2d 816, 830 N.E.2d 1145 [2005] ). The contention that the failure to consider his alcoholism defense renders the award in violation of public policy is merely a semantic variation on the ineffective claim that the arbitrator failed to properly evaluate the evidence ( see Kalyanaram v. New York Inst. of Tech., 79 A.D.3d 418, 419–420, 913 N.Y.S.2d 159 [2010], lv. denied 17 N.Y.3d 712, 933 N.Y.S.2d 652, 957 N.E.2d 1156 [2011] ).
We have considered petitioner's other contentions and find them unavailing.