In re Cherry

• Decision Date: 07 April 2011
• Parties: In re Stephanie CHERRY, Petitioner–Appellant,v.NEW YORK STATE INSURANCE FUND, Respondent–Respondent.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 446
920 N.Y.S.2d 342
2011 N.Y. Slip Op. 02797

In re Stephanie CHERRY, Petitioner–Appellant,
v.
NEW YORK STATE INSURANCE FUND, Respondent–Respondent.

Supreme Court, Appellate Division, First Department, New York.

April 7, 2011.

[920 N.Y.S.2d 343]

The Rosenthal Law Firm, P.C., New York (Douglas Rosenthal of counsel), for appellant.Andrew M. Cuomo, Attorney General, New York (Sudarsana Srinivasan of counsel), for respondent.ANDRIAS, J.P., FRIEDMAN, CATTERSON, MOSKOWITZ, ROMÁN, JJ.

[83 A.D.3d 446] Order and judgment (one paper), Supreme Court, New York County (Jane S. Solomon, J.), entered January 14, 2010, which denied the petition seeking to vacate the arbitration award upholding respondent's determination to terminate petitioner's employment based on violations of respondent's zero-tolerance workplace violence policy, and dismissed the proceeding, unanimously affirmed, without costs.

Petitioner failed to meet her heavy burden of establishing that the arbitration award was irrational, or in violation of any [83 A.D.3d 447] of the grounds enumerated in CPLR 7511(b) ( see Frankel v. Sardis, 76 A.D.3d 136, 139–140, 904 N.Y.S.2d 18 [2010] ). The record demonstrates that the arbitrator weighed all the relevant evidence, including the testimony of petitioner's coworkers and supervisors, and determined that the accounts of petitioner's threatening behavior in violation of respondent's workplace violence policy was more credible than petitioner's version of the events. There exists no basis to disturb the arbitrator's finding because “unless there is no proof whatever to justify the award so as to render it entirely irrational ... the arbitrator's finding is not subject to judicial oversight” ( Matter of Peckerman v. D & D Assoc., 165 A.D.2d 289, 296, 567 N.Y.S.2d 416 [1991]; see Matter of McMahan & Co. [Dunn NewFund I], 230 A.D.2d 1, 4–5, 656 N.Y.S.2d 620 [1997], lv. denied 90 N.Y.2d 806, 663 N.Y.S.2d 511, 686 N.E.2d 223 [1997] ).

Furthermore, contrary to petitioner's contention, the arbitrator did not engage in misconduct by failing to enforce a discovery order. The record shows that respondent complied with the discovery order and, in any event, petitioner did not raise this argument before the arbitrator and proceeded with the arbitration ( see Matter of Sims v. Siegelson, 246 A.D.2d 374, 377, 668 N.Y.S.2d 20 [1998] [“(p)etitioner's claims that the award should be vacated due to (respondent's) non-compliance with the procedures of CPLR article...