Kraus v. Brandstetter
| Decision Date | 20 July 1992 |
| Citation | 586 N.Y.S.2d 269,185 A.D.2d 302 |
| Parties | Barbara KRAUS, et al., Respondents, v. Robert BRANDSTETTER, et al., Defendants, Emil E. Maffucci, et al., Appellants. |
| Court | New York Supreme Court — Appellate Division |
Wilson, Elser, Moskowitz, Edelman & Dicker, New York City (Steven Kent and Richard E. Lerner, of counsel), for appellants.
Pirrotti & Hummel, Tarrytown (Denise L. Hummel and Anthony J. Pirrotti, of counsel), for respondents.
Before SULLIVAN, J.P., and LAWRENCE, RITTER and SANTUCCI, JJ.
MEMORANDUM BY THE COURT.
In an action to recover damages for defamation, conspiracy, loss of consortium, and wrongful termination of employment, the appeal is from an order of the Supreme Court, Westchester County (Donovan, J.), entered June 14, 1990, which granted the plaintiffs' motion for leave to serve an amended complaint to assert that the cause of action to recover damages for wrongful termination of employment is based upon Labor Law § 740.
ORDERED that the order is affirmed, with costs.
The Supreme Court properly granted the plaintiffs' motion to amend their complaint to assert that the cause of action to recover damages for wrongful termination of employment is based upon Labor Law § 740. Leave to amend a pleading generally should be granted freely unless the defendant can show prejudice from the delay (see, Dolan v. Garden City Union Free School Dist., 113 A.D.2d 781, 493 N.Y.S.2d 217; Surlak v. Surlak, 95 A.D.2d 371, 466 N.Y.S.2d 461). In this case, the original complaint alleged that the plaintiff Barbara Kraus was fired in retaliation for her report of medical misconduct constituting a hazard to public health and safety. Therefore, the appellants cannot claim that they were not apprised of the facts underlying her claim and were prejudiced by the delay. The appellants claim that they are prejudiced because a cause of action based upon Labor Law § 740 carries with it the possibility of imposing "severe and unique remedies" available under that provision, e.g., reinstatement with full benefits and seniority rights. In this regard, the appellants claim that the defendant hospital acted under the assumption that the plaintiff Barbara Kraus would not seek reinstatement, and, based upon that assumption, replaced its director of nursing. However, the appellants cannot seriously claim that the hospital would have allowed two years to elapse without replacing its director of nursing.
Further, we find that the Supreme Court...
To continue reading
Request your trial
-
Young v. Schering Corp.
...1984. N.Y. Labor Law § 740, subd. 7 (McKinney 1988). The only case construing New York's waiver provision is Kraus v. Brandstetter, 185 A.D.2d 302, 586 N.Y.S.2d 269, 270 (1992). The court concluded that the "waiver only applies to those causes of action relating to retaliatory discharge. In......
-
Collette v. St. Luke's Roosevelt Hosp.
...makes sense. In the present case, for example, Collette's seventh cause of action for breach of contract raises a similar problem to that in Kraus. Yet defendant does not argue that this claim was waived by bringing the whistleblower claim (Tr. 6), and rightly so. If St. Luke's owes Collett......
-
Rotwein v. Sunharbor Manor Residential Health Care Facility
...the waiver applies to any cause of action or only those relating to the alleged retaliatory discharge itself. In Kraus v. Brandstetter, 185 A.D.2d 302, 586 N.Y.S.2d 269, the Court clearly stated that the waiver applies only to causes of action relating to the retaliatory discharge. Thus, it......
-
Tonra v. Kadmon Holdings, Inc.
...law." The scope of Section 740(7)'s waiver applies to causes of action related to retaliatory discharge. See Kraus v. Brandstetter, 185 A.D.2d 302, 586 N.Y.S.2d 269, 270 (1992). The plaintiff does not address this argument in his opposition to the motion to dismiss. Therefore, the defendant......