Miller v. New York State Department of Mental Hygiene

— In a proceeding pursuant to CPLR article 78 to review an arbitrator’s award which dismissed the grievance of Emmett Miller on the ground that it was not timely filed, the appeal is from a judgment of the Supreme Court, Kings County, entered December 20, 1978, which, inter alia, vacated the award, directed that petitioner be reinstated with back pay, and directed that a hearing be held by the arbitrator on the merits of the disciplinary proceeding against petitioner. Judgment reversed, on the law, without costs or disbursements, proceeding dismissed and the arbitrator’s award is reinstated. We note that the arbitrator’s award which found the filing of petitioner’s grievance to be untimely was improperly challenged under CPLR article 78 rather than article 75. CPLR article 75, however, does not provide a basis for disturbing the award in issue. The decision of the arbitrator concerning the timeliness of the filing of the grievance is not subject to judicial review (see Matter of Three Vil. Teachers Assn, v Three Vil. Cent. School Dist. No. 1, 56 AD2d 604; Farino v State of New York, 55 AD2d 843). Mollen, P. J., Hopkins, Titone, O’Connor and Shapiro, JJ., concur.