Pugliese v. Actin Biomed LLC

139 A.D.3d 472, 29 N.Y.S.3d 799

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 10, 2016
• Docket: 1118 103104/10
• Status: Published

Opinion

Order, Supreme Court, New York County (Geoffrey D. Wright, J.), entered January 13, 2015, which granted defendants-respondents’ (defendants) motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff alleges, pursuant to Labor Law § 740, that she was constructively terminated from her employment with defendants in retaliation for objecting to defendants’ violation of Food and Drug Administration regulations in their conduct of certain clinical drug trials. Supreme Court erred when it granted defendants summary judgment, because there has been only limited discovery in this case, and therefore summary dismissal of the complaint is premature.

In light of defendants’ active litigation of this case since its commencement and the fact that they raised the issue of arbitration for the first time in the present motion, we find that they have waived any right to compel arbitration (see e.g. Ryan v Kellogg Partners Inst. Servs., 58 AD3d 481 [1st Dept 2009]).

Concur — Friedman, J.P., Acosta, Moskowitz, Kapnick and Gesmer, JJ.