Wage Retaliation Statute’s Attorney General Notice Provision Was Not a Condition Precedent to Suit, First Department Holds

In Kubersky v. Cameron Indus., Inc., 2019 NY Slip Op 04882 (App. Div. 1st Dept. June 18, 2019), a retaliation case brought under New York Labor Law 215, the court affirmed the denial of defendants’ summary judgment motion on the ground that plaintiff did not provide timely notice to the Attorney General of her action.

The court summarized the factual/procedural context as follows:

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).

The court, relying on a 1971 Court of Appeals Case – Columbia Gas of N.Y. v New York State Elec. & Gas Corp., 28 NY2d 117 [1971], which involved a similar provision, General Business Law § 340 – concluded 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.”

It reasoned 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” and noted further that “[i]n contrast, when enacting notice of claim provisions …, the legislature has included express language making clear that notice to the municipality is a condition precedent to bringing an action against that municipality[.]”

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