Opinion
9650N Index 155666/16
06-18-2019
Malka KUBERSKY, Plaintiff–Respondent, v. CAMERON INDUSTRIES, INC., et al., Defendants–Appellants.
Schlacter & Associates, New York (Jed R. Schlacter of counsel), for appellants. Schwartz Perry & Heller, LLP, New York (Brian Heller of counsel), for respondent.
Schlacter & Associates, New York (Jed R. Schlacter of counsel), for appellants.
Schwartz Perry & Heller, LLP, New York (Brian Heller of counsel), for respondent.
Sweeny, J.P., Manzanet–Daniels, Kapnick, Oing, Singh, JJ.
Order, Supreme Court, New York County (Barbara Jaffe, J.), entered November 16, 2018, which denied defendants' motion for summary judgment dismissing the complaint, and granted plaintiff leave to amend her complaint, unanimously affirmed, without costs.
Plaintiff alleges she was employed by defendant Cameron from April of 2014 to October of 2014, when she was wrongfully terminated due to her participation in an unemployment hearing before the New York State Department of Labor. She commenced this action, alleging unlawful retaliation in violation of Labor Law § 215(1)(a), in July 2016, and served notice on the New York Attorney General of her action in September 2017. Defendants then moved for summary judgment, arguing that plaintiff had failed to provide notice of her action to the attorney general "at or before commencement" of it, as required by Labor Law § 215(2)(b).
In Columbia Gas of N.Y. v. New York State Elec. & Gas Corp., 28 N.Y.2d 117, 129, 320 N.Y.S.2d 57, 268 N.E.2d 790 (1971), which involved a similar provision in General Business Law § 340 requiring service of notice of an action on the attorney general "at or before commencement," the Court of Appeals concluded that the notice requirement "may not be considered a condition precedent to the plaintiff's cause of action," since the "requirement that notice be given is designed solely to apprise the Attorney General that such an action was commenced so that he would be aware of the circumstances" ( id. ).
In keeping with the precedent set by Columbia Gas, this Court finds that plaintiff's failure to serve notice on the attorney general until one year after commencing the action against her former employers, but during the course of litigation, does not require dismissal of her action (see Figura v. North Country Janitorial, Inc., 53 Misc.3d 881, 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, *1 [Sup. Ct., N.Y. County 2012] ; see also Bernstein v.1995 Assoc., 217 A.D.2d 512, 630 N.Y.S.2d 68 [1st Dept. 1995] [interpreting notice provision of NYC Administrative Code § 8–502 consistent with Columbia Gas ]; but see Silver v. Equitable Life Assur. Socy. of U.S., 168 A.D.2d 367, 563 N.Y.S.2d 78 [1st Dept. 1990] [dismissing action under Civil Rights Law § 40–c due to failure to provide notice to Attorney General, without considering Columbia Gas ] ).
We note that the legislature is presumed to have been familiar with existing decisional law, including Columbia Gas, when it subsequently enacted Labor Law § 215(2)(b), and chose to use the same language used in General Business Law § 340 to require notice of the civil action be given to the Attorney General (see Matter of Knight–Ridder Broadcasting v. Greenberg, 70 N.Y.2d 151, 157, 518 N.Y.S.2d 595, 511 N.E.2d 1116 [1987] ). In contrast, when enacting notice of claim provisions (e.g. General Municipal Law § 50–c[1] ), the legislature has included express language making clear that notice to the municipality is a condition precedent to bringing an action against that municipality (see Bernstein, supra ; Columbia Gas, 33 A.D.2d 1057, 1058–1059, 307 N.Y.S.2d 313 [3d Dept. 1970] ). We have considered the remaining arguments and find them unavailing.