Petitioners move this Court pursuant to CPLR 7503 (c) to permanently enjoin the arbitration request by respondents, arguing that underlying determination that respondents challenge is not arbitable.

Petitioner State University of New York [hereinafter the University] employed [*2]respondent Carol Fusina. Respondent Law Enforcement Officers Union, Council 82, AFSCME, AFL-CIO [hereinafter Council 82] is the collective bargaining representative for all State workers in the Security Supervisors Unit, including respondent Carol Fusina, and respondent New York State University Police Officers Union, Local 1792 [hereinafter Local 1792].

The parties are bound by a collective bargaining agreement [hereinafter Agreement] and it provides that disputes governing the application and interpretation of the Agreement are determined by a four-step grievance and arbitration process. The Agreement further provides, however, that grievances that arise from terms and conditions of employment which do not arise from the Agreement are not subject to the grievance and arbitration process.

In September 2005, the University employed respondent Carol Fusina as a probationary employee and placed her in the field training program. Fusina failed the program and the University terminated her probationary appointment in September 2006.^[FN1] Fusina filed a contract grievance challenging her termination and, ultimately, petitioner Governor's Office of Employee Relations [hereinafter GOER] determined that the University acted appropriately, and that the Agreement had not been violated. As a result, Council 82 filed a demand for arbitration with GOER, prompting petitioner to move this Court to stay arbitration.

In support of their application, petitioners contend that Fusina's termination as a probationary employee is not subject to arbitration under the terms of the Agreement. As such, the University is not required to arbitrate this grievance and Fusina may challenge her dismissal through a CPLR article 78 application. In opposition, respondents counter that the sections 3, 8, 27 and the bill of rights of the agreement provide the terms that require arbitration.

In determining whether a dispute is arbitrable, the Court first determines whether the parties may arbitrate the dispute by inquiring if there is any statutory, constitutional, or public policy prohibition against arbitration of the grievance (see County of Chautauqua v Civil Service Employees Ass'n, 8 NY3d 513 [2007]). If there is a prohibition, the inquiry ends and an arbitrator cannot act ; if no prohibition exists, the Court then asks whether the parties in fact agreed to arbitrate the particular dispute by examining the parties' collective bargaining agreement (id). Here, although there is no prohibition, the Agreement does not provide for arbitration of disputes regarding discipline for probationary employees. Rather, the discipline sections of the agreement apply only to employees governed by Civil Service Law §§75 and 76, which do not apply to probationary employees (see e.g. Easling v Odessa-Montour Cent. School Dist., 10 AD3d 839, 840 [3d Dept 2004]). As such, the Court finds that the current dispute is not subject to arbitration.

Accordingly, petitioners' application is granted. All papers including this Decision and Order are returned to petitioners' attorney. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Albany, New York___________________________ [*3]

October 5, 2007Hon. Judith A. Hard, AJSC