

Pugliese v Actin Biomed LLC (2016 NY Slip Op 03679)





Pugliese v Actin Biomed LLC


2016 NY Slip Op 03679


Decided on May 10, 2016


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 May 10, 2016

Friedman, J.P., Acosta, Moskowitz, Kapnick, Gesmer, JJ.


1118 103104/10

[*1]Lisa Pugliese, Plaintiff-Appellant,
vActin Biomed LLC, et al., Defendants-Respondents, Stuart Green, Esq., Defendant.


Bader, Yakaitis & Nonnenmacher, LLP, New York (Jesse M. Young of counsel), for appellant.
Wilson Elser Moskowitz Edelman & Dicker LLP, New York (Celena Mayo of counsel), for respondents.

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 (FDA) 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]).
THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: MAY 10, 2016
CLERK


