| Bones v Prudential Fin., Inc. |
| 2008 NY Slip Op 06875 [54 AD3d 589] |
| September 16, 2008 |
| Appellate Division, First Department |
| Brian D. Bones, Respondent, v Prudential Financial, Inc.,et al., Appellant. |
—[*1] Fensterstock & Partners LLP, New York (Jeanne M. Valentine of counsel), forrespondent.
Order, Supreme Court, New York County (Richard B. Lowe, III, J.), entered August 23,2007, which denied defendants' motion to dismiss the complaint, unanimously reversed, on thelaw, without costs, and the motion granted. The Clerk is directed to enter judgment in favor ofdefendants dismissing the complaint.
Plaintiff's institution of an action against his former employer, defendant PrudentialInsurance Company of America, "in accordance with" Labor Law § 740 constitutes "awaiver of the rights and remedies available under any other contract, collective bargainingagreement, law, rule or regulation or under the common law" (Labor Law § 740 [7]),including his remaining claim for promissory estoppel, which arises from the allegedly unlawfuldischarge (Hayes v Staten Is. Univ.Hosp., 39 AD3d 593 [2007]). Such a waiver may not be avoided by a plaintiff byamending the complaint, to withdraw the Labor Law § 740 claim (Reddington v Staten Is. Univ. Hosp.,11 NY3d 80, 87-88 [2008]). Concur—Mazzarelli, J.P., Saxe, Friedman and Nardelli,JJ. [See 17 Misc 3d 656.]