In re Town of Greenburgh

town board the power to suspend members of the police department without pay pending the trial of the charges against them (Westchester County Police Act, § 7, L 1936, ch 104, as amd by L 1941, ch 812). Notwithstanding any contrary provisions in the Civil Service Law, then, a Westchester town board’s authority to suspend an officer without pay and its obligation (or that of the board of police commissioners) to try disciplinary charges are not subject to collective bargaining (see Matter of Cohoes City School Dist. v Cohoes Teachers Assn., 40 NY2d 774 ; Syracuse Teachers Assn, v Board ofEduc., 35 NY2d 743 ). Accordingly, Special Term correctly held that the disputed portions of the award must be vacated as having been rendered in excess of the panel’s power (see CPLR 7511, subd [b], par [1], cl [iii]; Caso v Coffey, 41 NY2d 153 ; Mount St. Mary’s Hosp. of Niagara Falls v Catherwood, 26 NY2d 493 ). Having concluded that disciplinary procedures are not a subject of collective bargaining for members of town police departments in Westchester, we reject the police association’s contention that the town’s failure to seek a stay of arbitration prior to the panel hearing waived the grounds it raises to support vacatur. The rationale for the town’s position on the waiver issue also is erroneous, however, since it is mistakenly based on Matter of Port Washington Union Free School Dist. v Port Washington Teachers Assn. ( 45 NY2d 411 ). Citing Port Washington, the town contends that it would have been impossible to obtain a stay because the disciplinary procedures were but a small part of the association’s total demand for arbitration. However, Port Washington holds that where the demand for arbitration of an arbitrable issue seeks more relief than there is jurisdiction to grant, the failure to seek a stay is not fatal if the arbitrator has the power to grant some relief. Here, the arbitration panel lacked jurisdiction to grant any relief relevant to disciplinary procedures and there is no reason why the town could not have obtained a stay of the disciplinary portion of the demand (see Matter of Allied Van Lines [Hollander Express & Van Co.], 29 NY2d 35 , 41-44; see, also, Government Employees Ins. Co. v Home Mut. Ins. Co., 74 AD2d 716 ). Whatever the deficiencies of its reasoning, however, the town has not waived its right to seek vacatur of the disciplinary portion of the award. A party who participates in arbitration without moving for a stay waives certain grounds for vacatur such as whether a valid arbitration agreement was made or complied with or whether the claim is barred by the Statute of Limitations (see CPLR 7503; Rochester City School Dist. v Rochester Teachers Assn., 41 NY2d 578 ; Matter of National Cash Register Co. [Wilson], 8 NY2d 377 ), but if the arbitration award is contrary to public policy or if it violates statutory proscriptions, the issue may be raised for the first time in an application to vacate the award (CPLR 7511). Indeed, the court may consider such issues sua sponte even if the parties do not raise them (Matter of Niagara Wheatfield Administrators Assn. [Niagara Wheatfield Cent. School Dist.], 44 NY2d 68 , 72; Durst v Abrash, 22 AD2d 39 , affd 17 NY2d 445 ). Because the Westchester County Police Act pre-empted the subject, the parties to this proceeding could not legally have agreed to alter statutory disciplinary procedures. That lack of power to agree could not be overcome by the device of waiving opposition to a jurisdictionally defective demand (see Durst v Abrash, 22 AD2d, at pp 42-44, supra). We do agree with the association, however, that the town’s claim that one of the panel members was biased was waived, when, with knowledge of the facts underlying the claim of bias, the town went forward with the arbitration (Matter of Stevens & Co. [Rytex Corp.], 34 NY2d 123 , 129; Matter of Boar & Beards [Oleg Cassini, Inc.], 30 NY2d 649 ). Accordingly, there should be an affirmance. Laser, J. P., Gulotta, Weinstein and Rubin, JJ., concur.