Frens v. St. Joseph's Collegiate Institute

• Decision Date: 04 November 1983
• Docket Number: No. 1,1
• Citation: 97 A.D.2d 941,469 N.Y.S.2d 36
• Parties: , 14 Ed. Law Rep. 779 Robert FRENS, Appellant-Respondent, v. ST. JOSEPH'S COLLEGIATE INSTITUTE, Respondent-Appellant, and Richard J. Larkin, President, Brother Patrick Brown, et al., Respondents. Appeal
• Court: New York Supreme Court — Appellate Division

Page 36

469 N.Y.S.2d 36

97 A.D.2d 941, 14 Ed. Law Rep. 779

Robert FRENS, Appellant-Respondent, v. ST. JOSEPH'S COLLEGIATE INSTITUTE, Respondent-Appellant and Richard J. Larkin, President, Brother Patrick Brown, et al Respondents. Appeal No. 1.

Supreme Court, Appellate Division,

Fourth Department.

Nov. 4, 1983.

Lipsitz, Green, Fahringer, Roll, Schuller & James by Frank Kedzielawa, Buffalo, for appellant-respondent.

Flaherty, Cohen, Grande & Randazzo, P.C. by Robert Doren, Buffalo, for respondents-appellants-respondents.

Before HANCOCK, J.P., and CALLAHAN, DENMAN, GREEN and MOULE, JJ.

MEMORANDUM:

Petitioner, a teacher employed by respondent, St. Joseph's Collegiate Institute, appeals from orders of Special Term which, inter alia, denied his application pursuant to CPLR 7503 (subd. [a] ) to compel arbitration of his claim for continued employment and directed a hearing to determine whether petitioner's rights were prejudiced by the partiality of the independent arbitrator. Respondent cross appeals from those parts of said orders which failed to confirm the arbitrators' award and directed a hearing. This dispute arose when petitioner was informed that his teaching contract would not be renewed for the 1981-1982 academic year. Petitioner filed a grievance, and after exhausting those procedures, he demanded arbitration pursuant to the provisions of a collective bargaining agreement. On August 7, 1981, prior to the presentment of the issues to an arbitration panel, settlement negotiations between the parties and their respective attorneys resulted in an agreement settling the dispute. This resolution was presented to the arbitrators in the presence of petitioner. No objection was made to the agreement or the accuracy of the stated terms. The arbitrators accepted the agreement as a resolution of the grievance and retained jurisdiction pending compliance with the terms thereof. In a letter dated August 12, 1981, however, petitioner advised that he had discharged his attorney and rescinded the "tentative agreement." On November 13, 1981, the arbitration panel issued its final award, which confirmed the settlement agreement.

Once a party has participated in arbitration his ability to have the courts vacate or modify the award is limited by statute (CPLR 7511, subd. [b], par. 1; see also CPLR 7511, subd. [c]; Rochester City School Dist. v. Rochester Teachers Assn., 41 N.Y.2d 578, 582, 394 N.Y.S.2d 179, 362 N.E.2d 977). We agree with the finding of Special Term that there was a binding settlement reached before the arbitration panel. The only reason assigned for vacating the award on the basis of partiality of the arbitrator (CPLR 7511, subd. [b], par. 1, cl. [ii] ) is the remark attributed to...