In re Arbitration between Stevenson & State of New York Department of Correctional Services

Appeal from an order of the Supreme Court (Benza, J.), entered August 17, 2004 in Albany County, which, in a proceeding pursuant to CPLR 7503 to stay arbitration between the parties, granted respondent’s motion to dismiss the petition.

Petitioner, a correction officer, was arrested on December 30, 2003 and a notice of discipline was served on him the following day. He filed a disciplinary grievance and, when it was not satisfactorily resolved at the agency level, requested arbitration. The arbitrator was appointed on February 17, 2004 and scheduled a hearing for March 29, 2004. Thereafter, respondent requested petitioner to consent to the postponement of the hearing, but petitioner refused. Following a conference call with the parties, the arbitrator granted respondent’s request to postpone

Petitioner asserts that the postponement of the hearing without his consent constituted a breach of paragraph 8.2 (f) of the parties’ collective bargaining agreement, thereby entitling him to a permanent stay of arbitration, dismissal of the disciplinary charges and reinstatement to his position. The subject provision, which appears under the article entitled discipline, states, in pertinent part, that “[arbitration hearings may not be rescheduled without mutual consent of the parties.” It is not a condition precedent to arbitration, but rather is in the nature of a “procedural stipulation[ ] that the parties . . . have laid down to be observed in the conduct of the arbitration proceeding itself” (Matter of County of Rockland [Primiano Constr. Co.], 51 NY2d 1 , 8 [1980]; see Matter of Dalton v Schneider, 245 AD2d 1101 , 1102 [1997]; Matter of Town of Queensbury [Joseph R. Wunderlich, Inc.], 175 AD2d 946 , 948 [1991]; cf. Matter of Town of Ticonderoga [United Fedn. of Police Officers, Inc.], 15 AD3d 756 [2005]). As such, whether this provision has been violated and the consequences that flow therefrom are matters for the arbitrator to resolve (see Matter of County of Rockland [Primiano Constr. Co.], supra at 8; Matter of Dalton v Schneider, supra at 1102 ; Matter of Town of Queensbury [Joseph R. Wunderlich, Inc.], supra at 948). Accordingly, we find that Supreme Court properly dismissed the petition.

Crew III, J.P., Mugglin, Rose and Kane, JJ., concur. Ordered that the order is affirmed, without costs. [See 5 Misc 3d 421 .]