Opinion
155666/2016
10-30-2018
Malka KUBERSKY, Plaintiff, v. CAMERON INDUSTRIES, INC., and Soheil Khayyam, Individually, Defendants.
For plaintiff: Brian Heller, Esq., Schwartz, Perry & Heller, LLP, 3 Park Avenue, 27th fl., New York, NY 10016, 212-889-6565 For defendants: Jed R. Schlachter, Esq., Schlachter & Associates, 450 Seventh Avenue, New York, NY 10123, 212-695-2000
For plaintiff: Brian Heller, Esq., Schwartz, Perry & Heller, LLP, 3 Park Avenue, 27th fl., New York, NY 10016, 212-889-6565
For defendants: Jed R. Schlachter, Esq., Schlachter & Associates, 450 Seventh Avenue, New York, NY 10123, 212-695-2000
DECISION AND ORDER
Barbara Jaffe, J. Plaintiff brings this action pursuant to Labor Law § 215, alleging that defendants unlawfully terminated plaintiff's employment for participating in a Department of Labor investigation and hearing regarding a former employee of defendant Cameron Industries, Inc. Defendants move pursuant to CPLR 3212 for an order granting them summary judgment on the ground that plaintiff failed to provide the state attorney general with notice of this action at or before its commencement, in violation of Labor Law § 215(2).
Plaintiff alleges that defendants fired her on October 6, 2014. (NYSCEF 1). She filed her verified complaint on July 8, 2016 and served the attorney general with notice of the action on September 7, 2017 (NYSCEF 29).
Pursuant to Labor Law § 215(2), an employee asserting a claim under that statute must serve the attorney general with notice of the action at or before its commencement. The weight of authority holds that service of notice on the attorney general does not constitute a condition precedent to bringing an action under the statute. ( Figura v. N. Country Janitorial, Inc. , 53 Misc. 3d 881, 886, 37 N.Y.S.3d 697 [Sup. Ct., Warren County 2016] ; Aurelien v. Albert Augustine Ltd., 2012 N.Y. Slip Op. 32901[U], 2012 WL 6221085 [Sup. Ct., N.Y. County 2012] ; see also Robledo v. No. 9 Parfume Leasehold , 2013 WL 1718917, *8 [S.D.N.Y., Apr. 9, 2013, No. 12-CV-3579 (ALC/DF) ] ; Quintanilla v. Suffolk Paving Corp. , 2011 WL 1323033, *6 [E.D.N.Y., Feb. 10, 2011, No. 09-CV-5331 (SJF/AKT) ], report and recommendation adopted, 2011 WL 1253248 [E.D.N.Y., March 28, 2011, No. 09-CV-5331 (SJF/AKT) ] ); Cabrera v. Anjuna LLC , 2018 N.Y. Slip Op. 31683(U), 2018 WL 3528214, *7 (Sup. Ct., N.Y. County 2018) ; Zutrau v. Ice Systems, Inc. , 2012 WL 12521016, *1 (Sup. Ct., Suffolk County 2012) ; cf Columbia Gas of N.Y. v. N.Y.S. Elec. and Gas Corp. , 28 N.Y.2d 117, 129, 320 N.Y.S.2d 57, 268 N.E.2d 790 (1971) [ [provision in General Business Law § 340(5) requiring that attorney general be given notice of action at or before commencement thereof does not constitute condition precedent to bringing action] ).
Defendants distinguish the above-cited decisions, observing that plaintiff's delay in serving the attorney general continued beyond those addressed in other cases, notwithstanding her having been alerted to the statutory obligation by their affirmative defense addressing the lack of notice. (NYSCEF 24). Plaintiff denies that defendants raised the issue as an affirmative defense and seeks leave to amend her complaint to allege compliance with the statute. (NYSCEF 25). On reply, defendants argue that because plaintiff failed to serve the notice until after the expiration of the statute of limitations, the attorney general is rendered "powerless" to institute an action under the statute, and thus, the complaint must be dismissed. (NYSCEF 30).
At oral argument of the motion, plaintiff's counsel complained of defendants having first raised the issue of the statute of limitation on reply, otherwise denied that defendants are prejudiced by the attorney general's inability to investigate her allegations and asserted that defendants should not be "rewarded" by the late notice and that nowhere is it stated that the purpose of notice is to permit the attorney general to prosecute. Rather, she contended, the statute affords a private right of action, and that in a case such as plaintiff's, it would be doubtful that the attorney general would step in. (NYSCEF 31). Defendants improperly raised on reply the issue of the impact of the expiration of the statute of limitations on the ability to serve the attorney general with the required notice, giving plaintiff no opportunity to address it in her papers. ( Wal-Mart Stores, Inc. v. U.S. Fid. & Guar. Co. , 11 A.D.3d 300, 301, 784 N.Y.S.2d 25 [1st Dept. 2004] ). Nevertheless, given the dearth of case law on the issue, it is addressed.
The issue does not appear to have been considered other than having been alluded to by a federal magistrate in Estrella v. Coqui Check Cashing, Inc., 2010 WL 2975765 (E.D.N.Y., July 21, 2010, No. 08-CV-d5177 (NGG)), report and recommendation rejected, 2010 WL 2978176 (E.D.N.Y., July 26, 2010, No. 08-CV-5177). The issue before the magistrate was whether the plaintiffs should be granted leave to amend their complaint to allege compliance with Labor Law § 215(2). In granting leave, the magistrate found that a failure to serve notice on the attorney general at or before filing the action was not fatal to the plaintiffs' substantive claim, "at least where, as here, the statutorily required notice was served before the limitations period expired." The magistrate also observed that when the plaintiffs served their notice, they could have sought leave to amend their complaint or brought a new and timely action alleging service on the attorney general. ( Id. , *3 ). To the extent that the magistrate suggested that the statutory notice must be served on the attorney general before the expiration of the statute of limitations, the suggestion constitutes dicta as the notice in that case was filed before the expiration. Moreover, the magistrate's report and recommendation was rejected by the Eastern District. For all of these reasons, it is of little interest.
Even if the Office of the Attorney General wanted to investigate or prosecute a claim and was served with notice of it after the expiration of the statute of limitations, defendants are not prejudiced by the untimely notice because the burden would be on the attorney general to overcome the time bar. Furthermore, over a year has elapsed since plaintiff served notice on the attorney general, and defendants offer no indication that the Office has articulated a position concerning the issue, or that it would have wanted to investigate this case. In any event, while it is conceivable that some claims may warrant official investigation, defendants do not argue that this is such a case.
For all of these reasons, defendants do not demonstrate their entitlement to summary dismissal, and plaintiff demonstrates her entitlement to leave to amend her complaint.
Accordingly, it is hereby
ORDERED, that defendants' motion for summary judgment is denied in its entirety; it is further
ORDERED, that plaintiff's request for leave to amend the complaint to add the allegation that she served the attorney general with notice of this action is granted on condition that plaintiff file and serve a proposed amended complaint within 20 days of the date of this decision and order; it is further
ORDERED, that defendants shall serve an answer to the amended complaint or otherwise respond thereto within 20 days after plaintiff's filing and service of her amended complaint; and it is further
ORDERED, that the parties appear for a compliance conference on January 2, 2019 at 2:15 pm at 60 Centre Street, Room 341, New York, New York.