SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1256.1 

CA 12-00679 

PRESENT: SCUDDER, P.J., SMITH, CENTRA, AND LINDLEY, JJ.

 

 

IN THE MATTER OF NIAGARA FRONTIER TRANSIT 

METRO SYSTEM, INC., PETITIONER-APPELLANT,

V MEMORANDUM AND ORDER

AMALGAMATED TRANSIT LOCAL UNION 1342 AND 

VINCENT G. CREHAN, RESPONDENTS-RESPONDENTS. 

 

DAVID J. STATE, BUFFALO (WAYNE R. GRADL OF COUNSEL), FOR

PETITIONER-APPELLANT. 

REDEN & O’DONNELL, LLP, BUFFALO (TERRY M. SUGRUE OF COUNSEL), FOR

RESPONDENTS-RESPONDENTS. 

 

Appeal from a judgment and order (one paper) of the Supreme

Court, Erie County (Deborah A. Chimes, J.), entered January 6, 2012 in

a proceeding pursuant to CPLR article 75. The judgment and order

denied the petition to stay arbitration. 

It is hereby ORDERED that the judgment and order so appealed from 

is unanimously affirmed without costs.

Memorandum: Petitioner and Amalgamated Transit Local Union 1342

(respondent) are parties to a series of successive collective

bargaining agreements governing the terms and conditions of employment

of bargaining unit employees. Here, one of those employees began

employment with petitioner as a bus operator in 2004, and in 2010 was

involved in an accident following which she submitted a workers’

compensation benefits claim. In the course of processing the claim,

petitioner learned that, in September 2000, the employee had been

involved in an automobile accident, resulting in cervical and lumbar

spine injuries that carried a diagnosis of total disability for

approximately one year, and a “permanent partial disability”

thereafter. The employee did not disclose those injuries in the

medical history portion of her employment application in 2004. 

Petitioner annulled her employment on the ground that she had provided

false information in her application, whereupon respondent filed a

grievance on behalf of the employee. Petitioner then commenced this

proceeding under CPLR article 75 seeking a stay of arbitration on the

ground that the employee’s employment was void ab initio based on

material omissions in her employment application, and there was no

agreement between the parties to arbitrate the dismissal of an

employee whose employment was void ab initio.

 
1256.1

 CA 12-00679

-2-

Supreme Court properly denied the petition. Contrary to

petitioner’s contention, it did not have a common-law right to void

the employee’s employment ab initio. Any preexisting injuries that

the employee had would not automatically disqualify her from her

position; rather, any such preexisting injuries must actually

“interfere[] with the ability to control and safely operate a bus” (15

NYCRR 6.10; see generally Matter of Richie v Coughlin, 148 AD2d 178,

182-183, appeal dismissed 75 NY2d 765, lv denied 75 NY2d 707, cert

denied 498 US 824). Thus, because any disqualification would be

discretionary, the employee “must be afforded ‘a meaningful

opportunity to invoke the discretion of the decision maker [as] a

precondition to his [or her] termination’ ” (Prue v Hunt, 157 AD2d

160, 165, affd 78 NY2d 364). 

Entered: November 9, 2012 Frances E. Cafarell

Clerk of the Court