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Wolff v. 149 E. 73rd St. Corp.

Ex-Worker Not Precluded From Litigating Retaliation Issue Not Addressed in Arbitration

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DECISION & ORDER In this action seeking redress for a violation of Labor Law Section §740 (also known as the “Whistleblower Statute”), defendants 149 East 73rd Street Corporation and Maxwell-Kates, Inc., move for an order pursuant to CPLR 3211 (a) (5), to dismiss plaintiff Norbert Wolff’s verified complaint as barred by the doctrine of collateral estoppel. Plaintiff opposes the motion. BACKGROUND Plaintiff, a former employee of defendants, alleges that he was terminated from his position as a doorman at a building located at 149 East 73rd Street, New York, New York (the Building) for reporting multiple fire code violations which allegedly occurred in the Building. Plaintiff’s employment was governed by a Collective Bargaining Agreement between plaintiff’s union and defendants. Plaintiff’s union filed a grievance letter claiming plaintiff was unjustly discharged and the matter proceeded to arbitration pursuant to the Collective Bargaining Agreement (NYSCEF Doc. No 30, 31; Collective Bargaining Agreement; Grievance Initiation Letter). At the arbitration, defendants argued that plaintiff was terminated because of repeated acts of misconduct and insubordination, as he repeatedly reported said fire code violations directly to the Board of Directors of the Building in violation of directives that he report any alleged violations to management and not to the Board president or members (see NYSCEF Doc. No. 30; Opinion and Award at 3; NYSCEF Doc. No 1; complaint at 7-8,

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