McFadden v Isseks Bros. Inc.

[*1] McFadden v Isseks Bros. Inc. 2005 NYSlipOp 50509(U) Decided on April 8, 2005 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 8, 2005
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. MARTIN SCHOENFELD, Justices.
570503/04

Mary C. McFadden, Plaintiff-Respondent,

against

Isseks Bros. Inc., Defendant-Appellant.

Defendant appeals from a judgment of the Small Claims Part of the Civil Court, New York County, entered on or about December 30, 2003 after a nonjury trial (Debra Rose Samuels, J.) in favor of plaintiff, and awarding her damages in the principal sum of $2,625.

PER CURIAM:

Judgment entered on or about December 30, 2003 (Debra Rose Samuels, J.) affirmed, without costs.

The defendant's lone appellate argument that the small claims action is preempted by federal law governing employment benefits (see Employee Retirement Income Security Act of 1974 [29 USC § 1001 et seq]) was not raised during the trial proceedings, and thus is not properly before us (cf. Adsit v Quantum Chem. Corp, 199 AD2d 899, 900 [1993]). In any event, defendant's preemption claim is without merit, since the action stems from a salary dispute and "the existence of the pension plan [was not] a critical factor in establishing the extent of defendant's liability" (id.; see also Oxford Health Plans v BetterCare Health Care Pain Mgt. & Rehab., 305 AD2d 223, 224 [2003]; Brookhaven Anesthesia Assocs. v Flaherty, 2004 NY Slip [*2]Op 51035[U]).
This constitutes the decision and order of the Court.
Decision Date: April 08, 2005