Practice point: The plaintiffs alleged retaliation pursuant to Labor Law §
740 in a prior action against the defendants. The
claim asserted here, pursuant to Administrative Code of the City of New
York § 8-107, arises out of and relates to the same underlying claim of
retaliation as asserted in the prior action. Therefore, the Appellate Division found it to be barred by
the Labor Law § 740(7) election of remedies provision. The Appellate Division noted that the waiver may not be avoided by amending the complaint to withdraw the section 740 claim.
Student note: Labor Law § 740(7) provides that "the institution of an action in
accordance with this section shall be deemed a waiver of the rights and
remedies available under any other contract, collective bargaining
agreement, law, rule or regulation or under the common law." The waiver
applies to causes of action arising out of or relating to the same
underlying claim of retaliation.
Case: Charite v Duane Reade, Inc., NY Slip Op 06292 (2d Dept. 2014)
Here is the decision.
Tomorrow's issue: An account stated claim to recover legal fees, and a malpractice counterclaim.
