SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1221 

CA 15-00626 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, WHALEN, AND DEJOSEPH, JJ. 

 

IN THE MATTER OF ARBITRATION BETWEEN 

CITY OF LOCKPORT, PETITIONER-RESPONDENT, 

AND MEMORANDUM AND ORDER

LOCKPORT PROFESSIONAL FIREFIGHTERS 

ASSOCIATION, INC., LOCAL 963, IAFF, AFL-CIO, 

RESPONDENT-APPELLANT. 

THE SAMMARCO LAW FIRM, LLP, BUFFALO (ANDREA L. SAMMARCO OF COUNSEL),

FOR RESPONDENT-APPELLANT. 

GOLDBERGER AND KREMER, ALBANY (BRIAN S. KREMER OF COUNSEL), FOR

PETITIONER-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Niagara County

(Richard C. Kloch, Sr., A.J.), entered July 2, 2014 in a proceeding

pursuant to CPLR article 75. The order, insofar as appealed from,

granted the petition of petitioner seeking a permanent stay of

arbitration and denied the cross motion of respondent to compel

arbitration. 

It is hereby ORDERED that the order insofar as appealed from is

unanimously reversed on the law without costs, the petition is denied

and the cross motion is granted. 

Memorandum: Petitioner and respondent are parties to a

collective bargaining agreement (CBA) that defines grievance as

including “all claimed violations of any contract existing between

[petitioner] and the employees covered by” the CBA. After

petitioner’s Civil Service Commission (Commission) created a new

position within the Lockport Fire Department, i.e., Municipal Training

Officer (MTO), respondent and petitioner negotiated the terms and

conditions of employment and the job duties applicable to that

position. The product of their negotiations was a Memorandum of

Agreement (MOA) that provided, inter alia, that employees in the

position of MTO “shall only be eligible for future promotional

consideration to a Line Officer’s position pursuant to existing civil

service rules, regulations, and procedure beginning with Fire

Lieutenant.” The Commission thereafter amended the job specifications

for Fire Chief to make the MTO eligible for promotion to Fire Chief. 

Respondent filed a grievance and a demand for arbitration based upon

petitioner’s alleged violation of the MOA, and petitioner commenced

this proceeding seeking a permanent stay of arbitration.
-2- 1221 

CA 15-00626 

Supreme Court erred in granting the petition and denying

respondent’s cross motion to compel arbitration. At the outset, we

note that petitioner did not previously raise its present contention

that arbitration of the dispute is contrary to the Civil Service Law

and public policy. Although that contention may be raised for the

first time on appeal (see Matter of Niagara Wheatfield Adm’rs Assn.

[Niagara Wheatfield Cent. Sch. Dist.], 44 NY2d 68, 72), we conclude

that it lacks merit. This State has a strong public policy favoring

arbitration of public sector labor disputes (see Matter of County of

Chautauqua v Civil Serv. Employs. Assn., Local 1000, AFSCME, AFL-CIO,

County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d

513, 519), and “judicial intervention on public policy grounds

constitutes a narrow exception to the otherwise broad power of parties

to agree to arbitrate all of the disputes arising out of their

juridical relationships” (Matter of New York City Tr. Auth. v

Transport Workers Union of Am., Local 100, AFL-CIO, 99 NY2d 1, 6-7;

see Matter of United Fedn. of Teachers, Local 2, AFT, AFL-CIO v Board

of Educ. of City Sch. Dist. of City of N.Y., 1 NY3d 72, 82). The

instant dispute does not fall within the narrow scope of that

exception, inasmuch as the provision of the MOA at issue concerns

promotion, a term or condition of employment that is a proper subject

for negotiation and agreement between the parties (see Matter of

Professional, Clerical Tech. Empls. Assn. [Buffalo Bd. of Educ.], 90

NY2d 364, 372).

We reject petitioner’s contention that granting the remedy sought

by respondent, i.e., enforcement of the MOA, would violate public

policy and conflict with the Civil Service Law because it would

interfere with the Commission’s authority to establish the

qualifications for the position of Fire Chief. “While the

[Commission] undoubtedly had the authority to establish minimum

qualifications for job titles in [City] government (see Civil Service

Law §§ 50, 52), it does not follow that such determinations are immune

from oversight or review” in an arbitration proceeding (Matter of

Ulster County Sheriff’s Empls. Assn., CWA Local 1105 [Ulster County

Sheriff’s Dept.], 100 AD3d 1327, 1329, lv denied 20 NY3d 859). 

Contrary to petitioner’s further contention, we conclude that

submitting the parties’ dispute to arbitration does not violate the

public policy underlying the Civil Service Law, inasmuch as a

determination in favor of respondent would not compel petitioner to

hire an unqualified candidate for the position of Fire Chief (see

United Fedn. of Teachers, Local 2, AFT, AFL-CIO, 1 NY3d at 80-81). 

Finally, petitioner’s original contention, i.e., that respondent’s

dispute is with the Commission, which cannot be bound by an

arbitration award, goes to “ ‘the merits of the grievance[, which] are

not the court[’]s concern’ ” (Matter of Board of Trustees of Cayuga

County Community Coll. [Cayuga County Community Coll. Faculty Assn.],

299 AD2d 907, 908). 

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court