Arbitration Between Vill. of Kenmore v.

• Decision Date: 07 February 2014
• Citation: 114 A.D.3d 1185,979 N.Y.S.2d 741,2014 N.Y. Slip Op. 00826
• Parties: In the Matter of Arbitration Between VILLAGE OF KENMORE, Petitioner–Respondent, and KENMORE CLUB POLICE BENEVOLENT ASSOCIATION, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

114 A.D.3d 1185
979 N.Y.S.2d 741
2014 N.Y. Slip Op. 00826

In the Matter of Arbitration Between VILLAGE OF KENMORE, Petitioner–Respondent,
and
KENMORE CLUB POLICE BENEVOLENT ASSOCIATION, Respondent–Appellant.

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

Feb. 7, 2014.

[979 N.Y.S.2d 742]

The Sammarco Law Firm, LLP, Buffalo (Andrea L. Sammarco of Counsel), for Respondent–Appellant.

Bond, Schoeneck & King, PLLC, Buffalo (Mark A. Moldenhauer of Counsel), for Petitioner–Respondent.

PRESENT: SMITH, J.P., FAHEY, CARNI, VALENTINO, and WHALEN, JJ.

MEMORANDUM:

This dispute concerns health insurance coverage in a collective bargaining agreement (CBA) between the parties, and the issue before us is whether petitioner must submit to arbitration. Respondent filed a grievance pursuant to the CBA on behalf of a retired police officer and all other qualified retirees protesting petitioner's refusal to continue providing health insurance coverage for retirees who seek a change of permanent residence outside the geographic area covered by respondent's current health insurance plan. After the parties failed to resolve their dispute through the step-by-step grievance procedure set forth in the CBA, respondent sought arbitration of the dispute pursuant to the final step of the grievance procedure. Petitioner commenced this proceeding seeking a permanent stay of arbitration ( seeCPLR 7503[b] ). According to petitioner, the retirees are not “employees” pursuant to the CBA and thus have no standing to file a grievance or to seek arbitration. Respondent cross-moved for an order compelling arbitration. Supreme Court granted the petition and denied respondent's cross motion. We now reverse, deny the petition, and grant respondent's cross motion.

In determining whether an issue is subject to arbitration under a CBA, a court must apply the two-step analysis set forth in Matter of Acting Supt. of Schools of Liverpool Cent. Sch. Dist. (United Liverpool Faculty Assn.) ( see 42 N.Y.2d 509, 513, 399 N.Y.S.2d 189, 369 N.E.2d 746). “First, a court must determine whether there is any statutory, constitutional or public policy prohibition against arbitration of the grievance” ( Matter of Mariano v. Town of Orchard Park, 92 A.D.3d 1232, 1233, 938 N.Y.S.2d 399 [internal quotation marks omitted] ). “If the court determines that there is no such prohibition and thus that the parties have the authority to arbitrate the grievance, it proceeds to the second step, in which it must...