
    County of Monroe et al., Appellants, v Monroe County Deputy Sheriff’s Association, Respondent.
   — Order reversed on the law without costs and motion to stay arbitration granted. Memorandum: Supreme Court erred in denying petitioner’s application for a stay of arbitration of a grievance filed by the Monroe County Deputy Sheriffs Association. Article 36 of the parties’ collective bargaining agreement contains a grievance procedure, the final step of which provides for arbitration of "any claimed violation of a specific provision of this agreement, or any matter which relates to employee health and safety” (§ 36.2). The contract, however, expressly excludes performance evaluations from this grievance and arbitration procedure.

In its demand for arbitration, respondent sought to have deleted from its member’s personnel file certain derogatory remarks, to wit, an unsatisfactory score on his performance evaluation based on his use of sick leave credits. Petitioner contends that since this grievance affects a performance evaluation, the contract excludes it from arbitration. Respondent admits that performance evaluations are not subject to arbitration, but contends that, once placed in the personnel file, any derogatory material in the evaluation becomes subject to arbitration.

The issue whether the dispute is subject to arbitration is for the courts rather than the arbitrator to determine (see, Matter of South Colonie Cent. School Dist. [South Colonie Teachers Assn.], 46 NY2d 521, 525, rearg denied 47 NY2d 952). Since the agreement does not clearly and unequivocally state that the parties have agreed to refer this grievance to arbitration, a stay of arbitration must be granted (see, Matter of Acting Supt. of Schools of Liverpool Cent. School Dist. [United Liverpool Faculty Assn.], 42 NY2d 509, 515; Matter of County of Broome [Truesdell] 122 AD2d 314, 315).

All concur, except Dillon, P. J., and Green, J., who dissent and vote to affirm, in the following memorandum.

Dillon, P. J., and Green, J.

(dissenting). We dissent. Supreme Court properly denied petitioner a stay of arbitration and properly granted respondent’s cross motion compelling arbitration. The collective bargaining agreement (§ 36.1) clearly gave members of respondent the right to use the grievance procedure. Section 34.1 states "[n]o material related to an employee’s conduct, performance, character or personality which is derogatory in nature shall be placed in an employee’s personnel file without notification to the employee.” If such material is placed in a personnel file, employees may seek to remove such material by filing a grievance under article 36 of the agreement.

Respondent agrees that it cannot challenge a performance evaluation. Respondent is seeking only to remove derogatory materials from a member’s personnel file, namely, an unsatisfactory score on his performance evaluation for using sick leave credits which he claims he had a right to use under the collective bargaining agreement. Respondent is not seeking to affect the member’s performance evaluation. Supreme Court properly determined that the grievance was subject to arbitration pursuant to the parties’ collective bargaining agreement (see, Matter of Board of Coop. Educ. Servs. v BOCES II Teachers’ Assn., 111 AD2d 168). The parties should be compelled to proceed to arbitration because the agreement to arbitrate expressly and unequivocally encompasses the subject matter of the dispute (see, Avery v Avery, 81 AD2d 849). Arbitration is favored by public policy in the resolution of private disputes as well as those in the field of collective bargaining (see, Matter of Maye [Bluestein], 40 NY2d 113). (Appeal from order of Supreme Court, Monroe County, Boehm, J. — arbitration.) , Present — Dillon, P. J., Boomer, Green, Lawton and Davis, JJ.  