State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: February 26, 2015 516853 

________________________________

In the Matter of KEITH M. 

KARNOFSKY,

Appellant,

and MEMORANDUM AND ORDER

NEW YORK STATE DEPARTMENT OF 

CORRECTIONS AND COMMUNITY

SUPERVISION et al., 

Respondents.

________________________________

Calendar Date: January 5, 2015

Before: McCarthy, J.P., Egan Jr., Lynch and Clark, JJ.

__________

Sanders & Sanders, Cheektowaga (Harvey P. Sanders of

counsel), for appellant.

Eric T. Schneiderman, Attorney General, Albany (Kate H.

Nepveu of counsel), for respondents.

__________

McCarthy, J.P.

Appeals (1) from an order of the Supreme Court (Devine,

J.), entered July 26, 2012 in Albany County, which, in a

proceeding pursuant to CPLR article 75, among other things,

denied petitioner's motion to hold respondents in contempt of a

prior order of said court confirming an arbitration award, (2)

from an order of said court, entered November 2, 2012, which

denied petitioner's motion to vacate the order entered July 26,

2012, and (3) from an order of said court, entered April 30,

2013, which denied petitioner's motion for leave to renew with

respect to his prior motion to hold respondents in contempt.
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Petitioner is a rabbi who was hired as a chaplain within

the state correctional system and began working 50% of a fulltime position at Attica Correctional Facility, which also

included covering the nearby Wende and Wyoming Correctional

Facilities, in November 2005. A month later, he began working

20% of a full-time position at Livingston Correctional Facility,

which included covering the nearby Groveland Correctional

Facility. Between the two assignments and five facilities,

petitioner was working 70% of a full-time position, or 28 hours

per week. In mid-November 2006, respondent Department of

Corrections and Community Supervision (hereinafter DOCCS)1

notified petitioner that he was being terminated for failing to

satisfactorily complete his probationary employment. Petitioner

contacted the Department of Civil Service, which responded to

petitioner that DOCCS had rescinded the probationary termination. 

DOCCS then suspended petitioner and filed a notice of discipline,

applicable to nonprobationary employees. Pursuant to the state's

collective bargaining agreement with petitioner's union, the

matter proceeded to arbitration. The arbitrator found that DOCCS

did not have cause to issue the notice of discipline or terminate

petitioner. As a result, the arbitrator directed DOCCS to

"return [petitioner] to his position as Chaplain-Rabbi servicing

the 'Attica Hub, Groveland and/or Livingston Correctional

Facilities'" and give him back pay "on a straight-time basis." 

Petitioner sought to confirm the arbitrator's award and

respondents sought to vacate the award. In July 2009, Supreme

Court granted petitioner's application to confirm. DOCCS then

reinstated petitioner as a chaplain serving the five correctional

facilities for 28 hours per week. After a short time, DOCCS cut

petitioner's schedule to 20 hours per week. With regard to the

monetary portion of the award, DOCCS only provided petitioner

with back pay for 50% of a full-time position. Petitioner moved

to hold respondents in contempt of the order confirming the

arbitration award because they failed to provide back pay for the

20% of a full-time position, as well as hazard pay and interest. 

1 Our references to DOCCS include its predecessor, the

Department of Correctional Services (see L 2011, ch 62, part C,

subpart B, § 79).
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Unbeknownst to petitioner, Supreme Court granted respondents an

extension to respond to the contempt motion and attempted to

notify petitioner of such by letter, but the court misaddressed

the envelope and the letter was returned to the court as

undeliverable. When he did not receive a response from

respondents, petitioner moved for a default judgment on his

motion. After receiving what appeared to be very late responsive

papers, petitioner submitted a reply asking the court to

disregard those papers as untimely or, if the court did not do

so, to permit petitioner to reply on the merits. In a July 2012

order, Supreme Court denied the motion for default judgment as

moot, considering the extension, and denied the contempt motion. 

Upon receiving that order, petitioner discovered that an

extension had been granted and that Supreme Court had

misaddressed the letter so informing him. Based on his inability

to reply on the merits, petitioner moved to vacate the July 2012

order pursuant to CPLR 317 and 5015 (a). The court found that

petitioner was seemingly seeking leave to renew, rather than to

vacate the order, but denied the motion as inadequate. 

Petitioner then moved for leave to renew, and Supreme Court

denied that motion as well. Petitioner appeals from the July

2012 order, as well as the orders denying his two subsequent

motions.

Supreme Court properly denied petitioner's motion to vacate

the July 2012 order, but should have granted his motion for leave

to renew. The cited statutory bases for vacatur, CPLR 317 and

5015 (a), are inapplicable to this situation, and the vacatur

motion was not identified as seeking leave to renew (see CPLR

2221 [e] [1]). Petitioner's last motion, however, was identified

as seeking renewal (see CPLR 2221 [e] [1]). Petitioner also

satisfied the second element for renewal, namely "new facts not

offered on the prior motion that would change the prior

determination" (CPLR 2221 [e] [2]). Petitioner explained that he

never received the court's letter granting respondents an

extension to respond to his contempt motion, and submitted the

envelope – obtained from the court's file – showing the incorrect

address and the postal marks indicating that the letter had been

returned as undeliverable. He also submitted communications from

himself to respondents' counsel and the court indicating his
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intent to reply to any response, along with his reply on the

default motion asking – in the alternative – that, if the court

did not grant him a default judgment, he be provided an

opportunity to reply on the merits. This constituted a

reasonable justification for his failure to present information

on the merits at the time of the original contempt motion (see

CPLR 2221 [e] [3]). 

Having now granted renewal, we can review the July 2012

order based on the supporting papers originally submitted and

those submitted on the renewal motion. When parties dispute the

meaning of an arbitration award that has been confirmed, the

court must determine the arbitrator's meaning and intent, as

expressed in the language of the award and its findings (see

Matter of Pine St. Assoc., L.P. v Southridge Partners, L.P., 107

AD3d 95, 100 [2013]). In doing so, the "court should adopt the

most reasonable meaning of the text" and, if any ambiguity

arises, interpret the award in a light most favorable to the

prevailing party (id. at 100). In response to the contempt

motion, respondents argued for the first time that petitioner was

subject to two probationary periods, one for his 50% position at

Attica and one for his 20% position at Livingston. Respondents

argue that petitioner's probationary employment for the 20%

position began later and he was properly terminated prior to the

end of that probationary period, such that the arbitration only

dealt with his 50% position. Petitioner contends that he held

one position as chaplain for 70% of a full-time position, with

one probationary period that ended one year after he began

working at Attica. Under petitioner's reasoning, he was never

terminated from the 20% position and the arbitration dealt with

him as an employee working 70% of a full-time position. While

the parties contend that documentary proof supports their

respective positions, the record is unclear. DOCCS initially

issued separate notices to petitioner terminating his

probationary employment, one for Attica and one for Livingston. 

On the other hand, some of DOCCS's letters refer to a singular

termination or position. A Department of Civil Service letter

stated that DOCCS rescinded petitioner's probationary termination

(singular, not plural), without limiting it to the 50% position. 

DOCCS then issued a notice of discipline and proceeded to

arbitration, again without specifying the extent of the position,
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which could have been intended to remove him from his 50%

position or his 70% employment. 

The arbitrator began his background recitation by stating

that petitioner was employed by DOCCS as a chaplain "at its

Attica Hub Facility on a part-time basis" on a certain date. 

Petitioner apparently only had his own office at Attica, had one

DOCCS identification card issued by Attica, one supervisor who

was at Attica, and other indicia that Attica was his home base

for both his 50% position and his 20% position. The arbitrator

could have been referring to either a 50% schedule or 70%

schedule when saying that petitioner worked "on a part-time

basis." His start date, and the associated date for the end of

his probationary period, would be the same for the 50% position

alone or if, as petitioner asserts, he only had one position

equal to 70% of a full-time position. In his conclusion and

award, the arbitrator directed DOCCS to "return [petitioner] to

his position as Chaplain-Rabbi servicing the 'Attica Hub,

Groveland and/or Livingston Correctional Facilities.'" This

language seems to clearly indicate that the arbitrator was

including the 20% portion of petitioner's employment, and that

petitioner had not been terminated from that position. If the

arbitrator was not supposed to consider the 20% position, then he

had no authority to direct that DOCCS reinstate petitioner as a

chaplain at Groveland or Livingston. Yet respondents did not ask

the arbitrator to correct or modify his award and did not argue

before Supreme Court in 2009 that the award should be vacated on

this basis (see CPLR 7511 [b] [1] [iii]). After confirmation in

2009, DOCCS reinstated petitioner to a 70% schedule at all five

correctional facilities that he formerly served, until, after a

few months, DOCCS reduced his schedule to 50%, realigned the

facilities so that the 50% position covered four of the

facilities, and then refused to pay petitioner back pay for the

20% position, apparently on the basis of respondents' asserted

belief that petitioner had been terminated from that position

during his probationary period in 2006. Considering all of the

evidence, much of which is equivocal, along with the arbitrator's

language in the conclusion and award section of his decision, and

interpreting the award in a light most favorable to petitioner,

as the prevailing party, we conclude that the arbitrator's award

directed that DOCCS return petitioner to his employment as
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chaplain-rabbi for both the 50% and 20% positions – or, perhaps

more accurately, one 70% position.

Although respondents were required by the arbitration award

to give petitioner back pay for the 20% position and failed to do

so, we do not find respondents in contempt for failing to comply

with the 2009 confirmation order. To establish civil contempt,

petitioner was required to prove by clear and convincing evidence

that respondents "knowingly disobeyed a clear and unequivocal

court order" (Hush v Taylor, 121 AD3d 1363, 1364 [2014]; see

Matter of Dobies v Brefka, 83 AD3d 1148, 1153 [2011]). Our

interpretation of the arbitrator's award, which differs from the

interpretation given by Supreme Court, shows that the

confirmation order was not entirely clear. Thus, we decline to

find that respondents knowingly violated that order.

As for petitioner's argument that he is entitled to hazard

pay as part of his back pay, the arbitrator's award entitled him

to be reimbursed for back pay "on a straight-time basis." We

interpret this as excluding hazard pay. Although the

arbitrator's award does not mention interest, the general rule is

that, upon a judgment confirming an arbitration award, "interest

should be provided from the date of the award" (Board of Educ. of

Cent. School Dist. No. 1 of Towns of Niagara, Wheatfield,

Lewiston & Cambria v Niagara-Wheatfield Teachers Assn., 46 NY2d

553, 558 [1979]; see Matter of New York State Correctional

Officers & Police Benevolent Assn., Inc. [State of New York], 49

AD3d 1074, 1074 [2008], lv denied 11 NY3d 701 [2008]). Inasmuch

as the confirmation order did not mention interest – nor would it

be expected to, considering that interest is due on the judgment

issued after confirmation – petitioner did not establish that

respondents are in contempt of that order by failing to pay him

interest, despite our current instruction that they must do so. 

Egan Jr., Lynch and Clark, JJ., concur.
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ORDERED that the orders entered July 26, 2012 and November

2, 2012 are affirmed, without costs.

ORDERED that the order entered April 30, 2013 is reversed,

on the law, without costs, motion to renew granted and, upon

renewal, adhere to the denial of the motion for contempt for the

reasons stated in this Court's decision.

ENTER:

Robert D. Mayberger

Clerk of the Court