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Gay v. Farella

Appellate Division of the Supreme Court of New York, Second Department
Mar 15, 2004
5 A.D.3d 540 (N.Y. App. Div. 2004)

Opinion

2002-10593.

Decided March 15, 2004.

In an action, inter alia, to recover damages for violation of Labor Law § 740, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Westchester County (Colabella, J.), entered October 8, 2002, as granted those branches of the defendants' motion which were to dismiss the first, second, third, and fifth causes of action set forth in the amended complaint insofar as asserted against the defendants Ralph Farella, Barry N. Dansky, and John Farella, and the second, third, and fifth causes of action set forth in the amended complaint insofar as asserted against the defendant Medi-Ray, Inc., and the defendant Medi-Ray, Inc., cross-appeals from so much of the same order as denied that branch of the motion which was to dismiss the first cause of action insofar as asserted against it.

Tague Vanden Heuvel, LLP, Bronxville, N.Y. (John F. Tague III of counsel) and Greenfield Stein Senior, LLP, New York, N.Y. (Paul T. Shoemaker of counsel), for appellant-respondent (one brief filed).

Menz Bonner Komar, LLP, New York, N.Y. (Patrick D. Bonner, Jr., and David A. Koenigsberg of counsel), and Gail I. Auster, New York, N.Y., for respondent-appellant and respondents (one brief filed).

Before: MYRIAM J. ALTMAN, J.P., GABRIEL M. KRAUSMAN, HOWARD MILLER, BARRY A. COZIER, JJ.


DECISION ORDER

ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Contrary to the plaintiff's contention, the Supreme Court did not violate the doctrine of law of the case by dismissing the second, third, and fifth causes of action in the amended complaint, and the first cause of action in the amended complaint insofar as asserted against the individual defendants. The doctrine of law of the case "applies only to legal determinations that were necessarily resolved on the merits in [a] prior decision" ( Baldasano v. Bank of N.Y., 199 A.D.2d 184, 185; D'Amato v. Access Mfg., 305 A.D.2d 447; see also Gilligan v. Reers, 255 A.D.2d 486). Here, a prior order of the Supreme Court denied the defendants' motion to dismiss the original complaint, and granted the plaintiff leave to serve an amended complaint. Since the original complaint was superseded by the amended complaint, rendering the sufficiency of the allegations in the original complaint academic ( see Chalasani v. Neuman, 64 N.Y.2d 879; Titus v. Titus, 275 A.D.2d 409; Morris v. Goldstein, 223 A.D.2d 582, 583), the law of the case doctrine did not bar the Supreme Court from entertaining the defendants' motion to dismiss the amended complaint. Moreover, the prior order denying the defendants' motion to dismiss the original complaint and granting the plaintiff leave to serve the amended complaint did not address the merits of the parties' arguments ( see D'Amato v. Access Mfg., supra; Perron v. Hendrickson/Scalamandre/Posillico [TV], 292 A.D.2d 361).

Contrary to the contention of the defendant Medi-Ray, Inc., the Supreme Court properly denied that branch of the defendants' motion which sought to dismiss the first cause of action to recover damages for violation of Labor Law § 740 insofar as asserted against it. In order to sustain a cause of action predicated upon Labor Law § 740, known as the "whistleblowers' statute," a plaintiff must plead and prove that his or her employer engaged in an activity, policy, or practice that constituted an actual violation of law, rule, or regulation ( see Bordell v. General Elec. Co., 88 N.Y.2d 869; Quirk v. Emergency Hous. Group, 305 A.D.2d 390, lv denied 100 N.Y.2d 514; Khan v. State Univ. of N.Y. Health Science Ctr. at Brooklyn, 288 A.D.2d 350; Pail v. Precise Imports Corp., 256 A.D.2d 73). Here, the plaintiff's allegations that Medi-Ray, Inc., violated specific federal and state safety and health guidelines by improperly manufacturing and storing lead containers containing radioactive materials, and causing lead paint and toxic chemicals to leach into the surrounding water supply, were sufficient to sustain a cause of action for violation of the statute ( see Dobson v. Loos, 277 A.D.2d 1013; Finkelstein v. Cornell Univ. Med. Coll., 269 A.D.2d 114).

ALTMAN, J.P., KRAUSMAN, H. MILLER and COZIER, JJ., concur.


Summaries of

Gay v. Farella

Appellate Division of the Supreme Court of New York, Second Department
Mar 15, 2004
5 A.D.3d 540 (N.Y. App. Div. 2004)
Case details for

Gay v. Farella

Case Details

Full title:RAYMOND A. GAY, appellant-respondent, v. RALPH FARELLA, ET AL.…

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Mar 15, 2004

Citations

5 A.D.3d 540 (N.Y. App. Div. 2004)
772 N.Y.S.2d 871

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