SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1219 

CA 15-00546 

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

 

IN THE MATTER OF ARBITRATION BETWEEN 

CITY OF ROCHESTER, 

PETITIONER-RESPONDENT-RESPONDENT, 

AND MEMORANDUM AND ORDER

ROCHESTER POLICE LOCUST CLUB, 

RESPONDENT-PETITIONER-APPELLANT. 

TREVETT CRISTO SALZER & ANDOLINA P.C., ROCHESTER (ERIC M. DOLAN OF

COUNSEL), FOR RESPONDENT-PETITIONER-APPELLANT. 

T. ANDREW BROWN, CORPORATION COUNSEL, ROCHESTER (YVETTE CHANCELLOR

GREEN OF COUNSEL), FOR PETITIONER-RESPONDENT-RESPONDENT. 

 

Appeal from an order of the Supreme Court, Monroe County (Evelyn

Frazee, J.), entered June 23, 2014 in a proceeding pursuant to CPLR

article 75. The order granted the petition and vacated an arbitration

award. 

It is hereby ORDERED that the order so appealed from is

unanimously affirmed without costs.

Memorandum: This CPLR article 75 proceeding arises from a

determination by petitioner-respondent City of Rochester (City)

denying a police sergeant’s request for a vehicle to use on the job

and take home. The City denied a grievance that respondent-petitioner

Rochester Police Locust Club (Union) filed on behalf of the sergeant,

and the matter proceeded to arbitration. The contractual provision in

the collective bargaining agreement (CBA) governing arbitration

provides in relevant part that “[t]he authority of the arbitrator

shall be limited to matters of interpretation or application of the

express provisions of this Agreement and the arbitrator shall have no

power or authority to alter, add to or subtract from or otherwise

modify the terms of this Agreement as written.” After the arbitrator

issued an award directing the City to provide the sergeant with a

vehicle, the City commenced this proceeding seeking to vacate the

arbitration award, and the Union cross-petitioned to confirm the

award. The Union appeals from an order granting the petition and

vacating the award. We affirm. 

“ ‘It is well settled that an arbitration award may be vacated if

it exceeds a specifically enumerated limitation on an arbitrator’s

power[, and that] an arbitrator exceeds his or her authority by
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CA 15-00546 

granting a benefit not recognized under a governing collective

bargaining agreement’ ” (Matter of Buffalo Teachers Fedn., Inc. v

Board of Educ. of City Sch. Dist. of City of Buffalo, 50 AD3d 1503,

1507, lv denied 11 NY3d 708; see Matter of Buffalo Professional

Firefighters Assn., Inc., Local 282, IAFF, AFL-CIO-CLC v City of

Buffalo, 57 AD3d 1476, 1476). Here, the provision at issue is

contained in a memorandum of agreement between the City and the Union,

which requires that the City provide a vehicle to, inter alia, police

“investigator[s] who are assigned to the Major Crimes Unit.” It is

undisputed that the police sergeant who requested the vehicle is not

an investigator, and that he is not assigned to the Major Crimes Unit. 

Nevertheless, the arbitrator concluded that the City must provide him

with a take-home vehicle based solely on the City’s past practice,

which included providing such a vehicle to the two predecessors in his

position. That was error. “Although ‘[p]ast practices may be

considered by an arbitrator . . . when interpreting a specific

contractual provision . . . [, a]n arbitrator may not rewrite a

contract by adding a new clause based upon past practices’ ” (Matter

of Monroe County Sheriff's Off. [Monroe County Deputy Sheriffs' Assn.,

Inc.], 79 AD3d 1797, 1798). 

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court