Matter of Santos v. City Univ. of N.Y.

Order and judgment (one paper), Supreme Court, New York County (Ellen M. Coin, J.), entered June 3, 2013, which denied the petition pursuant to article 75 of the CPLR to vacate an arbitration award denying petitioner’s grievance of respondent CUNY’s determination to deny her tenure, and granted *562 CUNY’s cross motion to confirm the arbitration award, unanimously affirmed, without costs. An arbitrator’s award will not be vacated “ ‘unless it is violative of a strong public policy, or is totally irrational, or exceeds a specifically enumerated limitation on his power’ ” (Azrielant v Azrielant, 301 AD2d 269, 275 [1st Dept 2002], lv denied 99 NY2d 509 [2003]). Petitioner has not carried her “heavy burden” in claiming that the arbitrator’s decision upholding CUNY’s determination that tenure was not warranted based on the lack of scholarly publication was “totally irrational” (see Frankel v Sardis, 76 AD3d 136, 140, 139 [1st Dept 2010]). Petitioner’s claim that CUNY did not provide adequate notice of any alleged deficiencies is unavailing, as CUNY’s bylaws, as well as the collective bargaining agreement, provided notice that publication requirements were rigorous and progressive (see Ferrari v Iona Coll., 95 AD3d 576, 576 [1st Dept 2012], lv denied 20 NY3d 859 [2013]). Further, CUNY’s November 2007 letter of concern, sent to petitioner approximately five months before the tenure process, one year before her appeal, and fifteen months before President Raab issued her final determination on March 20, 2009, provided adequate notice. As stated by the arbitrator, the fact that petitioner may not have received notice prior to 2007 was based on her own misstatements as to her publications in her 2005 through 2007 evaluations. In addition, the determination of CUNY’s president as to the quality and quantity of petitioner’s publications was a proper exercise of academic judgment (see Pauk v Board of Higher Educ. of City of N.Y., 62 AD2d 660, 664 [1st Dept 1978], affd 48 NY2d 930 [1979]). The record also provides no basis for a finding that CUNY denied petitioner tenure in retaliation for her harassment claim against a department chair. Concur — Tom, J.P., Acosta, Andrias, Moskowitz and Kapnick, JJ.