Martin-Wilson v St. Cabrini Home, Inc.

[*1] Martin-Wilson v St. Cabrini Home, Inc. 2010 NY Slip Op 50674(U) [27 Misc 3d 132(A)] Decided on April 16, 2010 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 16, 2010
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT
PRESENT: McKeon, P.J., Shulman, Hunter, JJ
570004/10.

Brenda G. Martin-Wilson, Plaintiff-

against

St. Cabrini Home, Inc., Defendant-Appellant.

Defendant appeals from a judgment of the Civil Court of the City of New York, New York County (Lizbeth Gonzalez, J.), entered on or about November 21, 2008, after a nonjury trial, in favor of plaintiff and awarding her damages in the principal sum of $3,241.36.

Per Curiam.

Judgment (Lizbeth Gonzalez, J.), entered on or about November 21, 2008, reversed, without costs, and complaint dismissed. The Clerk is directed to enter judgment accordingly.

The judgment in plaintiff's favor, predicated upon defendant's putative violation of Labor Law § 161, cannot be sustained. Plaintiff's complaint sought damages for certain overtime wages which plaintiff believed she was owed, and plaintiff did not invoke the cited Labor Law provision as a basis of recovery at any point during the proceedings below. Moreover, on the merits, Labor Law § 161, which requires certain employers to provide their employees at least 24 consecutive hours of rest in a calendar week, does not provide an employee with a private cause of action (see Labor Law § 161[6]; Tanner v Imperial Recreation Parlors, 265 App Div 371, 374 [1943], affd 290 NY 801 [1943]) and, in any event, the not-for-profit adolescent group home owned and operated by defendant was not subject to the provisions of the statute (see Labor Law § 161[1]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.
Decision Date: April 16, 2010