Arevalo v Burg

Arevalo v Burg 2015 NY Slip Op 04595 Decided on June 2, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 2, 2015
Friedman, J.P., Saxe, Manzanet-Daniels, Feinman, Gische, JJ.
15292N 160855/13

[*1] Sebastian Arevalo, Plaintiff-Appellant,

v

Seymour M. Burg, Defendant-Respondent.

Borrelli & Associates, P.L.L.C., New York (Anthony P. Malecki of counsel), for appellant.

Bond Schoeneck & King, PLLC, New York (Barbara V. Cusumano of counsel), for respondent.

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered May 23, 2014, which denied plaintiff's motion for leave to amend his complaint to add a claim for retaliation under Labor Law § 215, unanimously affirmed, without costs.

The court properly denied plaintiff's motion for leave to amend the complaint because the proposed retaliation claim is insufficient (see Bishop v Maurer, 83 AD3d 483, 485 [1st Dept 2011]). As we have previously noted, "It is the rare case that the filing of a counterclaim can serve as the basis for a retaliation claim" (Klein v Town & Country Fine Jewelry Group, 283 AD2d 368, 369 [1st Dept 2001]). There is nothing to indicate that the interposition of defendant's counterclaims in any way chilled plaintiff's exercise of his rights (id.). Plaintiff's contention that Klein is distinguishable because it involved discrimination rather than the Labor Law is unavailing. The cases cited by plaintiff state that the retaliation analysis under Title VII of the Civil Rights Act of 1964 (42 USC § 2000e et seq.), an antidiscrimination statute, applies to the Labor Law (see Torres v Gristede's Operating Corp., 628 F Supp 2d 447, 471-472 nn 18-19 [SD NY 2008]); Fei v WestLB AG, 2008 WL 594768, *2 n 2, 2008 US Dist LEXIS 16338, *6-7 n 2 [SD NY, March 5, 2008, No. 07CV8785(HB)(FM)]).

In addition, defendant's interposition of what appear to be valid counterclaims would not dissuade a reasonable worker from suing his or her employer for violating the Labor Law (see Burlington N. & Santa Fe Ry. Co. v White, 548 US 53, 68-69 [2006]).

Finally, plaintiff's proposed retaliation claim is insufficient because it contains no factual allegations that "sufficiently suggest that [defendant]'s counterclaims could have a direct, [*2]adverse impact on [plaintiff]'s present employment or future employment prospects" (Kreinik v Showbran Photo, Inc., 2003 WL 22339268, *7, 2003 US Dist LEXIS 18276, *23 [SD NY, Oct. 14, 2003, No. 02Civ.1172(RMB)(DF)]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 2, 2015

CLERK