NIAGARA FRONTIER TRANSPORTATION AUT, MTR. OF

SUPREME COURT OF THE STATE OF NEW YORK
Appellate Division, Fourth Judicial Department

140
CA 13-01107
PRESENT: SCUDDER, P.J., CENTRA, FAHEY, CARNI, AND VALENTINO, JJ.

IN THE MATTER OF ARBITRATION BETWEEN NIAGARA
FRONTIER TRANSPORTATION AUTHORITY,
PETITIONER-APPELLANT,

AND MEMORANDUM AND ORDER

INTERNATIONAL LONGSHOREMEN’S ASSOCIATION, LOCAL
1949, RESPONDENT-RESPONDENT.

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

W. JAMES SCHWAN, BUFFALO, FOR RESPONDENT-RESPONDENT.

Appeal from an order of the Supreme Court, Erie County (Frederick
J. Marshall, J.), entered September 20, 2012 in a proceeding pursuant
to CPLR article 75. The order denied the petition seeking a permanent
stay of arbitration.

It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

Memorandum: Supreme Court properly denied the petition seeking a
permanent stay of arbitration pursuant to CPLR 7503 (b). Contrary to
petitioner’s contention, a stay was not warranted on the ground of res
judicata. The prior arbitration between the parties did not involve
the same claim, and therefore res judicata, or claim preclusion, is
not applicable (see generally Xiao Yang Chen v Fischer, 6 NY3d 94,
100). Insofar as petitioner contends that the prior arbitration
involved the same issue and thereby contends that collateral estoppel,
or issue preclusion, applies (see generally Parker v Blauvelt
Volunteer Fire Co., 93 NY2d 343, 349), we note that it is for the
arbitrator to determine “[t]he effect, if any, to be given to [that]
earlier arbitration award” (Matter of City Sch. Dist. of City of
Tonawanda v Tonawanda Educ. Assn., 63 NY2d 846, 848; see Matter of
Falzone [New York Cent. Mut. Fire Ins. Co.], 15 NY3d 530, 534-535).
We reject petitioner’s further contention that the arbitration should
be permanently stayed as a matter of public policy (see Matter of
Village of Johnson City [Johnson City Firefighters Assn., Local 921
IAFF], 75 AD3d 817, 818; see generally Matter of Board of Educ. of
Watertown City Sch. Dist. [Watertown Educ. Assn.], 93 NY2d 132, 138-
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CA 13-01107

140).

Entered: February 7, 2014 Frances E. Cafarell
Clerk of the Court