| Zutrau v ICE Sys., Inc. |
| 2015 NY Slip Op 04479 [128 AD3d 1058] |
| May 27, 2015 |
| Appellate Division, Second Department |
[*1]
| Leilani Zutrau, Individually and on Behalf of IceSystems, Inc., Appellant, v ICE Systems, Inc., et al.,Respondents. |
Liddle & Robinson, LLP, New York, N.Y. (Christine A. Palmieri of counsel),for appellant.
Littler Mendelson P.C., New York, NY. (Andrew P. Marks of counsel), forrespondents.
In an action, inter alia, to recover damages for employment discrimination on thebasis of disability in violation of Executive Law § 296 and violation ofLabor Law § 215, the plaintiff appeals (1), as limited by her brief, from somuch of an order of the Supreme Court, Suffolk County (Emerson, J.), entered July 19,2012, as granted that branch of the defendants' motion which was to strike the plaintiff'sdemand for a jury trial, (2) from a decision of the same court dated March 20, 2013,made after a nonjury trial, and (3), as limited by her brief, from so much of a judgment ofthe same court dated April 29, 2013, as, upon the decision, is in favor of the defendantsand against her, in effect, dismissing the second and third causes of action and is in favorof her and against the defendants on the fourth cause of action in the principal sum ofonly $60,307.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the appeal from the decision is dismissed, as no appeal lies from adecision (see Schicchi v J.A. Green Constr. Corp., 100 AD2d 509 [1984]); and itis further,
Ordered that the appeal from so much of the judgment as is in favor of thedefendants and against the plaintiff, in effect, dismissing the second cause of action isdismissed; and it is further,
Ordered that the judgment is affirmed insofar as reviewed; and it is further,
Ordered that one bill of costs is awarded to the defendants.
The appeal from the order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho,39 NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought upfor review and have been considered on the appeal from the judgment (see CPLR5501 [a] [1]).
[*2] " 'An appellantwho perfects an appeal by using the appendix method must file an appendix that containsall the relevant portions of the record in order to enable the court to render an informeddecision on the merits of the appeal' " (Grossman v Composto-Longhi, 96 AD3d 1000, 1001[2012], quoting Gandolfi vGandolfi, 66 AD3d 834, 835 [2009]). "The appendix shall contain thoseportions of the record necessary to permit the court to fully consider the issues which willbe raised by the appellant and the respondent" (22 NYCRR 670.10.2 [c] [1]; seeCPLR 5528 [a] [5]). Here, the plaintiff omitted material excerpts from the transcripts oftrial testimony and critical exhibits she relies on in seeking review of the dismissal of herdisability discrimination cause of action. These omissions inhibit this Court's ability torender an informed decision on the merits of the appeal (see Reale v Reale, 104 AD3d747, 747-748 [2013]; Murev Mure, 92 AD3d 653, 653 [2012]; Matter of Embro v Smith, 59 AD3d 542, 542 [2009]).Accordingly, the appeal from so much of the judgment as is in favor of the defendantsand against the plaintiff, in effect, dismissing the second cause of action must bedismissed.
" '[T]he deliberate joinder of claims for legal and equitable relief arising outof the same transaction amounts to a waiver of the right to demand a jury trial' "(Anesthesia Assoc. of MountKisco, LLP v Northern Westchester Hosp. Ctr., 59 AD3d 481, 482 [2009],quoting Hebranko v Bioline Labs., 149 AD2d 567, 567-568 [1989]; seeCPLR 4102 [c]). Here, the Supreme Court properly determined that the plaintiff waivedher right to a jury trial by joining legal and equitable causes of action arising from thesame transaction and seeking both legal and equitable relief (see Lief v Hill, 100 AD3d836 [2012]; Ayromlooi vStaten Is. Univ. Hosp., 7 AD3d 475 [2004]). Accordingly, the court properlygranted that branch of the defendants' motion which was to strike the plaintiff's demandfor a trial by jury.
"In reviewing a determination made after a nonjury trial, the power of this Court is asbroad as that of the trial court, and we may render a judgment we find warranted by thefacts, bearing in mind that in a close case, the trial court had the advantage of seeing andhearing the witnesses" (Hall vMcDonald, 115 AD3d 646, 647 [2014]; see Northern WestchesterProfessional Park Assoc. v Town of Bedford, 60 NY2d 492, 499 [1983]).
At the time of the plaintiff's termination from her employment in June 2007, LaborLaw § 215 prohibited an employer from discharging or discriminatingagainst an employee "because such employee has made a complaint to his [or her]employer . . . that the employer has violated any provision of this chapter"(Labor Law former § 215 [1] [a]). Thus, in support of her claim ofretaliatory discharge under Labor Law § 215, the plaintiff was required toestablish proof of an actual violation of a provision of the Labor Law; her reasonable andgood faith belief that a violation occurred was insufficient (cf. Labor Law§ 215 [1] [a], as amended by L 2010, ch 564, § 10; Webb-Weber v Community Actionfor Human Servs., Inc., 23 NY3d 448, 452 [2014]; Bordell v General Elec.Co., 88 NY2d 869, 871 [1996]). The Supreme Court's determination that thedefendants did not violate a provision of the Labor Law as alleged by the plaintiff waswarranted by the facts. Absent proof of an actual violation of a provision of the LaborLaw, the plaintiff's third cause of action alleging retaliation pursuant to Labor Law§ 215 was properly dismissed.
The plaintiff's remaining contentions are without merit. Rivera, J.P., Austin, Cohenand Duffy, JJ., concur.