Akers v. New York City Transit Authority

• Decision Date: 22 April 1991
• Citation: 569 N.Y.S.2d 136,172 A.D.2d 749
• Parties: In the Matter of Ernest AKERS, Appellant-Respondent, v. The NEW YORK CITY TRANSIT AUTHORITY, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 136

569 N.Y.S.2d 136

172 A.D.2d 749

In the Matter of Ernest AKERS, Appellant-Respondent, v. The NEW YORK CITY TRANSIT AUTHORITY, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

April 22, 1991.

Irving J. Panzer, New York City (Joann Bourne, of counsel), for appellant-respondent.

Albert C. Cosenza, Brooklyn (Joyce Rachel Ellman, of counsel), for respondent-appellant.

Before KUNZEMAN, J.P., and KOOPER, LAWRENCE and O'BRIEN, JJ.

MEMORANDUM BY THE COURT.

In a proceeding pursuant to CPLR article 75 to vacate an arbitration award, the petitioner appeals from so much of an order of the Supreme Court, Kings County (Garry, J.), entered November 30, 1989, as denied his petition and confirmed the award, and the cross-appeal is from so much of the same order as granted the petitioner leave to file an additional grievance relating to the alleged untimely issuance of the award.

ORDERED that the order is modified, on the law, by deleting the provision thereof which granted the petitioner leave to file an additional grievance pertaining to the alleged untimely issuance of the arbitration award; as so modified, the order is affirmed, with costs to the New York City Transit Authority.

The petitioner was dismissed from his employment as a motorman with the New York City Transit Authority (hereinafter Transit Authority) after he tested positive for cocaine and after he failed to maintain proper attendance at a drug counselling program to which he was assigned. The record reveals in this respect that prior to his discharge, the petitioner had been placed on probation as a consequence of his inconsistent record in attending counselling. After being placed on probation, the petitioner was informed, and also acknowledged in writing, that he could be dismissed from the counselling program if he continued to miss meetings. Thereafter, and while still on probation, the petitioner was restored to duty and apparently ordered to report for work on October 15, 1988, which created a conflict with one of his scheduled drug counselling sessions. According to the petitioner, he contacted a drug counsellor with the program, informed him of the conflict, but was told in response that the session would not be rescheduled and that if the petitioner missed the meeting he would be discharged from the program. Notwithstanding the foregoing, the petitioner elected to report for work and did not attend the scheduled counselling session. The record further indicates that the petitioner failed to attend other meetings between October 15, 1988, and November 14, 1988. Subsequently, the petitioner was informed that he was not in compliance with the drug counselling program, and was dismissed from his employment. Thereafter, the petitioner sought review of his discharge by a contractual "tripartite arbitration board". The board rejected the petitioner's appeal, concluding, inter alia, that although the petitioner had been warned, upon penalty of dismissal, not to miss any more meetings, he nevertheless failed to appear at the October 15, 1988, meeting and did not attend meetings scheduled subsequent to that meeting.

The petitioner then commenced the within proceeding pursuant to CPLR article 75 to vacate the board's determination. The Supreme Court confirmed the board's award insofar as it related to the propriety of the petitioner's dismissal, but afforded the petitioner the opportunity to file an additional grievance with respect to the board's alleged failure to timely...