Supreme Court, New York County, October 30, 2018

Schlachter & Associates, New York City (Jed R. Schlachter of counsel), for defendants.

Schwartz, Perry & Heller, LLP, New York City (Brian Heller of counsel), for plaintiff.

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 (NY St Cts Elec Filing [NYSCEF] Doc No. 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 Doc No. 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 North Country Janitorial, Inc., 53 Misc 3d 881, 886 [Sup Ct, Warren County 2016]; Aurelien v Albert Augustine Ltd., 2012 NY Slip Op 32901[U] [Sup Ct, NY County 2012]; see also Robledo v No. 9 Parfume Leasehold, 2013 WL 1718917, *8, 2013 US Dist LEXIS 57383, *25-28 [SD NY, Apr. 9, 2013, No. 12 Civ. 3579 (ALC)(DF)]; Quintanilla v Suffolk Paving Corp., 2011 WL 1323033, *6, 2011 US Dist LEXIS 34193, *15-19 [ED NY, Feb. 10, 2011, No. CV 09-5331 (SJF)(AKT)], report and recommendation adopted 2011 WL 1253248, 2011 US Dist LEXIS 34188 [ED NY, Mar. 28, 2011, No. 09-CV-5331 (SJF)(AKT)]; Cabrera v Anjuna LLC, 2018 NY Slip Op 31683[U], *12-14 [Sup Ct, NY County 2018]; Zutrau v Ice Systems, Inc., 2012 NY Slip Op 33947[U], *2 [Sup Ct, Suffolk County 2012]; cf. Columbia Gas of N.Y. v New York State Elec. & Gas Corp., 28 NY2d 117, 129 [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{**62 Misc 3d at 842} 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 Doc No. 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 Doc No. 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 Doc No. 30).

At oral argument of the motion, plaintiff's counsel complained of defendants having first raised the issue of the statute of limitations 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 Doc No. 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 United States Fid. & Guar. Co., 11 AD3d 300, 301 [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, 2010 US Dist LEXIS 75473 [ED NY, July 21, 2010, No. 08-CV-5177 (NGG)], report and recommendation not adopted as moot 2010 WL 2978176, 2010 US Dist LEXIS 75478 [ED NY, July 26, 2010, No. 08-CV-5177 (NGG) (SMG)]). 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" (Estrella, 2010 WL{**62 Misc 3d at 843}2975765, *3, 2010 US Dist LEXIS 75473, *7). 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.). 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 [*2]and recommendation was not adopted by the Eastern District because the issue was moot. 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 for 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.