Opinion
57050304.
Decided April 8, 2005.
Defendant appeals from a judgment of the Small Claims Part of the Civil Court, New York County, entered on or about December 30, 2003 after a nonjury trial (Debra Rose Samuels, J.) in favor of plaintiff, and awarding her damages in the principal sum of $2,625.
Judgment entered on or about December 30, 2003 (Debra Rose Samuels, J.) affirmed, without costs.
PRESENT: HON. LUCINDO SUAREZ, P.J., HON. WILLIAM P. McCOOE, HON. MARTIN SCHOENFELD, Justices.
The defendant's lone appellate argument that the small claims action is preempted by federal law governing employment benefits ( see Employee Retirement Income Security Act of 1974 [ 29 USC § 1001 et seq]) was not raised during the trial proceedings, and thus is not properly before us ( cf. Adsit v. Quantum Chem. Corp, 199 AD2d 899, 900). In any event, defendant's preemption claim is without merit, since the action stems from a salary dispute and "the existence of the pension plan [was not] a critical factor in establishing the extent of defendant's liability" ( id.; see also Oxford Health Plans v. BetterCare Health Care Pain Mgt. Rehab., 305 AD2d 223, 224; Brookhaven Anesthesia Assocs. v. Flaherty, 2004 NY Slip Op 51035[U]).
This constitutes the decision and order of the Court.