Perez v. Wegman Companies

— Order reversed on the law without costs, motion granted and amended complaint dismissed. Memorandum: The court erred in denying defendant’s motion to dismiss, on timeliness grounds, plaintiff’s amended complaint asserting a Labor Law § 740 cause of action. The action is time-barred by the one-year Statute of Limitations of Labor Law § 740 (4) (a). Even assuming that the timeliness of the cause of action in the amended complaint can be determined in terms of the dismissed causes of action in the original complaint, the "relation back” theory of CPLR 203 (e) does not apply. The retaliatory discharge cause of action (Labor Law § 740) in the amended complaint is based on a different theory from the breach of contract and negligence causes of action asserted in the original complaint and involves different factual allegations (see, Smith v Bessen, 161 AD2d 847, 849; see also, O’Connor v West, 124 AD2d 1050). Although plaintiff seeks redress of defendant’s termination of her employment in both her original complaint and amended complaint, the original complaint does not recite any of the essential factual allegations thereafter asserted in the amended complaint. We do not consider plaintiff’s arguments concerning CPLR 205 (a) and an estoppel theory because they are made for the first time on appeal. All concur, except Doerr, J., who dissents and votes to affirm in the following Memorandum.