Thursday, October 2, 2014

The Labor Law § 740(7) election of remedies provision in a retaliation action.

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.