Shevlin v. Wonder Works Constr. Corp.

Summary

The Appellate Division, First Department, affirmed a judgment awarding damages to the plaintiff against Wonder Works Construction Corp. The court held that the complaint stated a whistleblower claim under Labor Law § 740 based on allegations that the plaintiff was terminated for refusing to keep construction access gates open in violation of the New York City Building Code. The court also upheld the exclusion of deposition testimony under CPLR 3117 and found that the judgment was supported by the weight of the evidence.

Holdings

1. Dismissal under CPLR 3211(a)(7) was not warranted because the complaint adequately stated a whistleblower cause of action. Allegations that plaintiff was fired for refusing to keep construction access gates open in violation of the Building Code supported a reasonable inference that the cited code provision applied to defendants and that defendants maintained a practice or policy of violating it.
2. Defendants were not entitled to use Black's deposition testimony under CPLR 3117(a)(3)(ii) because his self-serving, unsworn email statements did not establish that he was outside New York at the time of trial.
3. Defendants were not entitled to use Black's deposition testimony under CPLR 3117(a)(3)(iv) because they failed to demonstrate due diligence in securing his trial testimony, including by failing to seek enforcement of a trial subpoena served at his New York office.
4. The judgment against Wonder Works Construction Corp. was supported by the weight of the evidence.

Questions Presented

1. Whether the complaint stated a whistleblower cause of action under Labor Law § 740(a)(c) sufficient to survive dismissal under CPLR 3211(a)(7).
2. Whether defendants established a basis under CPLR 3117(a)(3)(ii) or (iv) to use Ryan Black's deposition testimony at trial.
3. Whether the judgment against Wonder Works Construction Corp. after the bench trial was supported by the weight of the evidence.

Disposition

affirmed