Legal Malpractice

Legal Malpractice in a Labor Law Setting

By (Andrew Lavoott Bluestone)

The Labor Law and its connection with union contracts, employment at will and whistle blower statutes is complicated.  Clients are well advised to go to an attorney who concentrates in this area.  Here is a case in which plaintiff's case went awry, and ended in legal malpractice.

Hayes v Bello   2009 NY Slip Op 29065   Decided on February 11, 2009  Supreme Court, Richmond County illustrates the complicated nature of these interacting statutes, and what happens when a claim in one cancels out the other claims.
 

"By way of background, plaintiff's employment at SIUH began in April 1996 and ran through April 1997 pursuant to a one-year employment contract. Her contract was subsequently renewed in December 1997 for a three-year term, and was thereafter renewed twice more for a period of three years each. Her employment was terminated in July 2003. Each of plaintiff's contract renewals was retroactive to the expiration date of the previous contract. According to plaintiff, prior to her termination, she had notified her superiors of the illegal activities of another employee in conjunction with the clinical trial of a drug named "Tysabri". Plaintiff contends that her employment was terminated as of July 31, 2003 as a result of her having reported this information to her superiors."

"In September 2003, plaintiff retained the legal services of defendant THOMAS F. BELLO, Esq. (hereinafter BELLO) to represent her in a wrongful termination action against SIUH. An action was subsequently commenced by BELLO on her behalf in July 2005. The complaint alleges five causes of action, one each for breach of contract, promissory estoppel, breach of implied contract, specific performance and violation of Labor Law §740, also known as New York's "Whistleblowers Act". In September 2005, SIUH moved to dismiss the first four causes of action on the ground that an action under Labor Law §740 constitutes an exclusive remedy such that the assertion of a cause of action thereunder precludes plaintiff from pursuing any other causes of action related to the alleged wrongful termination of his or her employment. In addition, dismissal of plaintiff's Labor Law cause of action was sought on the basis that the one-year statute of limitations applicable thereto had expired in or about July 2004, one year from the date of plaintiff's termination. In response, BELLO served an amended complaint withdrawing the cause of action under Labor Law §740. "

"On appeal, however, the Appellate Division, Second Department dismissed the complaint in its entirety on the ground that (1) the assertion of a claim under Labor Law §740 operated as a waiver of all rights and remedies available to plaintiff under any contract, collective bargaining agreement, law, rule or regulation or under the common law, and (2) BELLO's attempt to amend the complaint to exclude the time-barred Labor Law §740 cause of action was insufficient to nullify the waiver (see Hayes v. Staten Island University Hospital, 39 AD3d 593). "
 

Full post as published by New York Attorney Malpractice Blog on February 20, 2009 (boomark / email).