SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

392 

CA 16-01307 

PRESENT: SMITH, J.P., PERADOTTO, DEJOSEPH, NEMOYER, AND SCUDDER, JJ. 

 

IN THE MATTER OF DAVID KUBIAK, 

PETITIONER-APPELLANT, 

V MEMORANDUM AND ORDER

DANIEL DERENDA, CHIEF OF POLICE, CITY OF 

BUFFALO POLICE DEPARTMENT, AND CITY OF 

BUFFALO, RESPONDENTS-RESPONDENTS. 

JASON R. DIPASQUALE, BUFFALO, FOR PETITIONER-APPELLANT. 

TIMOTHY A. BALL, CORPORATION COUNSEL, BUFFALO (CINDY T. COOPER OF

COUNSEL), FOR RESPONDENTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Erie County (Deborah

A. Chimes, J.), entered October 27, 2015. The order, inter alia,

denied the petition.

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: Respondents discharged petitioner, a Buffalo police

officer, before petitioner’s 18-month probationary period expired.

Petitioner sought arbitration of his discharge and, after the

arbitrator upheld the discharge, he commenced this CPLR article 78

proceeding. He contended that respondents’ decision to terminate his

employment “was arbitrary, capricious and done in bad faith,” and that

the arbitration award “goes against the substantial weight of the

evidence and lacks a sound and substantial basis.” Petitioner appeals

from an order in which Supreme Court converted the proceeding to one

pursuant to CPLR article 75, confirmed the award, and denied the

petition.

We reject petitioner’s contention that the court erred in

converting the proceeding to one pursuant to CPLR article 75. 

“Although characterized by petitioner as [a proceeding pursuant to

CPLR] article 78, the instant proceeding, which seeks petitioner’s

reinstatement and would, if successful, effectively nullify the

arbitrator’s decision, is actually in the nature of a CPLR article 75

proceeding seeking to vacate an arbitration award” (Matter of Rosa v

City Univ. of N.Y., 13 AD3d 162, 162). “It is well established that

the exclusive method for review of an arbitration award which is the

result of a voluntary contractual arbitration procedure is contained

in CPLR article 75” (Farino v State of New York, 55 AD2d 843, 843; see
-2- 392 

CA 16-01307 

Matter of Rodriguez v New York City Tr. Auth., 269 AD2d 600, 600, lv

denied 96 NY2d 704). In other words, an arbitrator’s award cannot be

challenged on the merits through review under article 78 (see Matter

of Dye v New York City Tr. Auth., 57 NY2d 917, 920). Consequently,

the court properly concluded that petitioner sought to vacate the

arbitration award and converted the proceeding to one pursuant to CPLR

article 75. 

In any event, even assuming, arguendo, that the matter was

properly commenced pursuant to CPLR article 78 (see Matter of

Schroeder v New York State Ins. Fund, 24 AD3d 247, 248), we conclude

that the court properly dismissed the proceeding without a hearing. 

“Petitioner’s grounds for annulling the Police Department’s

termination are without merit. He was a probationary police officer

at the time of his dismissal. While in that status, he ‘may be

dismissed for almost any reason, or for no reason at all’ . . . As a

probationary employee, petitioner had no right to challenge the

termination by way of a hearing or otherwise, absent a showing that he

was dismissed in bad faith or for an improper or impermissible reason

. . . Petitioner failed to demonstrate either” (Matter of Swinton v

Safir, 93 NY2d 758, 762-763; see Matter of Fiore v Town of Whitestown,

125 AD3d 1527, 1531, lv denied 25 NY3d 910).

Entered: May 5, 2017 Frances E. Cafarell

Clerk of the Court