Opinion
October 31, 1974
Order, Supreme Court, New York County, entered June 28, 1974, which dismissed the complaint on the ground that the cause of action set forth therein was barred by the one-year Statute of Limitations provided for in subdivision 5 of section 297 Exec. of the Executive Law, unanimously affirmed, without costs and without disbursements, but without prejudice to an application, if plaintiff is so advised, at Special Term, within 30 days after service of a copy of the order entered herein, for leave to serve an amended complaint to plead a cause of action under the Labor Law. The cause of action alleged in the complaint is specifically predicated upon subdivision 9 of section 297 Exec. of the Executive Law. Any action commenced under that law must be brought within the time limitations contained in subdivision 5 of section 297 Exec. of the Executive Law. Since the instant action was untimely commenced, Special Term properly granted defendant's motion to dismiss. The incidental references in the complaint to section 194 Lab. of the Labor Law, even under the most liberal rules of pleading, are wholly insufficient to transmute the complaint into one seeking relief under the Labor Law. However, since plaintiff may have some factual basis for an action under the Labor Law, our affirmance of the dismissal of the action will be without prejudice to an application for leave to serve an amended complaint stating a cause of action under the Labor Law. (See Cushman Wakefield, Inc. v. John David, Inc., 25 A.D.2d 133. )
Concur — McGivern, P.J., Markewich, Lupiano, Tilzer and Yesawich, JJ.