| Matter of Town of Saugerties (Town of Saugerties Policeman'sBenevolent Assn.) |
| 2012 NY Slip Op 00458 [91 AD3d 1264] |
| Jnury 26, 2012 |
| Appellate Division, Third Department |
| In the Matter of the Arbitration between Town of Saugerties et al.,Appellants, and Town of Saugerties Policeman's Benevolent Association,Respondent. |
—[*1] Ennio J. Corsi, New York State Law Enforcement Officers Union, Albany (Christine CaputoGranich of counsel), for respondent.
Rose, J. Appeal from an order of the Supreme Court (Cahill, J.), entered April 4, 2011 inUlster County, which, among other things, denied petitioners' application pursuant to CPLR 7503to stay arbitration between the parties.
The parties' collective bargaining agreement (hereinafter CBA) contains a section entitled"Hours of Work and Overtime." It states, among other things, that petitioner Town of Saugerties"agrees to comply with the requirements of Section 971 of the Unconsolidated Laws of NewYork." That statute provides, in relevant part, that police officers shall not be assigned to tours ofduty exceeding eight consecutive hours of each consecutive 24 hours, with certain exceptions.When respondent sought to arbitrate a grievance concerning an order that required an officer towork in excess of an eight-hour tour, petitioners commenced this proceeding to stay arbitration.Respondent then cross-moved to compel arbitration. Supreme Court granted respondent's crossmotion and dismissed the petition, giving rise to this appeal.
Courts determine arbitrability according to a two-prong test—whether the parties mayarbitrate the dispute and, if so, whether they in fact agreed to do so (see e.g. Matter of County of [*2]Chautauqua v Civil Serv. Empls. Assn., Local 1000, AFSCME,AFL-CIO, County of Chautauqua Unit 6300, Chautauqua County Local 807, 8 NY3d513, 519 [2007]). Petitioners claim that arbitration fails under both prongs here because,they argue, resolution of the dispute requires the application or interpretation of the terms of astatute. They contend that public policy will not permit an arbitrator to apply or interpret a statuteand, as to the second prong, that the parties did not agree to arbitrate the application orinterpretation of the statute at issue here. Neither of petitioners' arguments has merit.
The CBA incorporates McKinney's Unconsolidated Laws of NY § 971 (as added by L1911, ch 360, § 1, as amended) by reference, making the language of the statute asubstantive provision of the CBA, and petitioners have not identified any public policy thatwould preclude the arbitrator from interpreting such language (see e.g. Matter of City ofJohnstown [Johnstown Police Benevolent Assn.], 99 NY2d 273, 278-279 [2002]).Petitioners' reliance on Matter of Barnes (Council 82, AFSCME) (235 AD2d 695 [1997])is misplaced as that decision in no way suggests that public policy prohibits interpretation of thelanguage of a statute that has been incorporated by reference into the terms and conditions of aCBA.
As for the second prong, the broad arbitration clause here provides that any unresolveddisputes that have gone through the grievance process may be submitted to arbitration. Disputesare defined as "[a]ny grievance arising concerning the interpretation or application of the terms ofthis contract or the rights claimed thereunder and/or working conditions." Here, the disputeconcerns overtime, which is clearly a working condition (see Spring Valley PBA v Village ofSpring Val., 80 AD2d 910, 910-911 [1981]). Moreover, it involves the application of theterms of the CBA. Thus, it is clearly one that the parties intended to arbitrate (see Matter ofCity of Johnstown [Johnstown Police Benevolent Assn.], 99 NY2d at 279-280; Matter of City of Elmira [ElmiraProfessional Firefighters' Assn., AFL-CIO, I.A.F.F.-Local 709], 34 AD3d 1075, 1076[2006]; Matter of City of Plattsburgh [Plattsburgh Police Officers Union AFSCME Local82], 250 AD2d 327, 329 [1998], lv denied 93 NY2d 807 [1999]). Accordingly,Supreme Court correctly granted respondent's cross motion to compel arbitration and dismissedthe petition.
Peters, J.P., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, without costs.