Picketing directed at consumers and conducted at the site of a secondary employer consists, for purposes relevant here, of two basic categories dependent on the nature of the appeal being made. Where the union requests consumers to forbear from purchasing only those goods sold by the secondary employer which are produced by an employer with whom the union has a primary labor dispute, the activity engaged in, known as product boycotting or product picketing, is generally held to be within the bounds of the law and will not be enjoined (Goldfinger v Feintuch, 276 NY 281; Englander Co. v Tishler, 280 App Div 217; see, also, Galler v Slurzberg, 27 NJ Super 139, 149-151; Jones v Demoulas Super Markets, 365 Mass —; Almac’s, Inc. v Rhode Is. Grape <mask> Committee, 110 R. I. 36). On the other hand, where the union seeks to persuade customers to withdraw patronage generally from the secondary employer there result an impermissible secondary boycott and an unlawful labor objective which will be enjoined (see Opera on Tour v Weber, 285 NY 348; see, also, Goldinger v Feintuch, supra, pp 285-286).


The Attorney-General brings this action for an injunction and penalties against the Association of Contracting Plumbers of the City of New York (Association) and certain of its officials and members to enforce and secure antitrust compliance under the Donnelly Act (General Business Law, §§ 340, 342, 342-a). The Attorney-General charges that defendants and their Association in a combination have entered into contracts, agreements and arrangements whereby ‘ ‘ [c] ompetition or the free exercise of any activity in the conduct of any business trade or commerce or in the furnishing of any service in this state is or may be restrained.” That these alleged illegal contractual arrangements are evidenced in the defendants’ Association’s by-laws, resolution and labor agreement; to wit: (1) to <mask> the State University Construction Fund (SUCF) contracts let by single contracts for all the work to be performed and to force owners to let contracts by separate contracts, so as to eliminate com*258petition by negotiations for lower prices between owners; (2) to eliminate negotiations for lower prices and to tamper with pricing practices between owners, general contractors, and plumbing contractors; (3) to prohibit advertisements in publications except those of organizations in which the Association holds membership; (4) to prohibit use or installation of plumbing materials, fixtures or articles not first purchased by members from the manufacturer or dealer and by him sold to the owner or contractor.


Although medicine is a profession, the United States Supreme Court has held that individual physicians who engage in or foster a medical <mask> are subject to the proscriptions of the Sherman Antitrust Act. (American Med. Assn. v United States, 317 US 519.) This principle applies with equal force under the Donnelly Act, which has been termed by the Court of Appeals as the "counterpart of the Sherman Act,” (State of New York v Mobil Oil Corp., 38 NY2d 460, 463), and by the Appellate Division, First Department, as "New York State’s little Sherman Antitrust Act,” (State of New York v Horsemen’s Benevolent & Protective Assn., 55 AD2d 251, 253).


Moreover, the defendants contend that the plaintiff is selling dresses manufactured for Smart Sue, Inc. The plaintiff denies ever having had ‘ ‘ for sale in his store any dresses produced in the Helene factory for ‘ Smart Sue Inc. ’ ” And there it ends. But the sign ‘ ‘ retail outlet ’ ’ indicates, and I think clearly, that the retail store is an outlet of the manufacturing company and that the plaintiff sells dresses fabricated by Helene Manufacturing Co., although they may not have been manufactured for Smart Sue, Inc. If so, the defendants are not guilty of, as claimed by the plaintiff, “ an illegal secondary <mask> ”. Both retailer and manufacturer are in the women’s dress business. Even if the store and the factory are regarded as distinct entities as employers, the defendants may follow the nonunion goods and seek by peaceful picketing to persuade the consuming public from purchasing the nonunion product at the store of the retailer in the same line of business and in unity of interest with the manufacturer (Goldfinger v. Feintuch, 276 N. Y. 281). At page 290 Chief Judge Lehman, then Associate Judge, stated: “ I agree that peaceful picketing of the plaintiff’s place of business by the defendant union for the purpose of inducing the plaintiff’s customers to refrain from buying non-union products of a manufacturer, which are on sale by the plaintiff, is lawful. That is not a ‘ secondary boycott. ’ ” The burden of showing that no labor dispute exists is on the plaintiff and, to show absence of a labor dispute, the plaintiff must show no unity of interest between his business and Helene Manufacturing Co., with which the defendants have a grievance (Park Terrace Caterers v. McDonough, 9 A D 2d 113). Assuming arguendo that the plaintiff is a separate entity, he has failed to sustain the burden of showing that no labor dispute exists.


*397All three claims arise from a December 5, 1978 indictment of the claimants and five other doctors by a Nassau County Grand Jury for alleged violations of this State’s antimonopoly statute, i.e., the Donnelly Act. (General Business Law, art 22.) Specifically, the doctors were charged with organizing a group <mask> and concertedly refusing to render professional services to nonemergency workers’ compensation and no-fault insurance patients. The alleged boycott and refusal apparently arose from the dissatisfaction of the indicted doctors and others with low fees and delays in payments thereof under those plans. (See People v Roth, 100 Misc 2d 542, 543-544, affd 74 AD2d 1008, affd 52 NY2d 440, 446-447.) The defendant doctors therein moved to dismiss the indictment and their motion was granted on August 10, 1979 by the Nassau County Court. (See People v Roth, 100 Misc 2d 542, supra.)2 The State’s Attorney-General appealed that dismissal,3 but, as indicated above, the dismissal was affirmed by the Appellate Division, on March 24, 1980,4 and by the Court of Appeals, on April 2, 1981 (see People v Roth, 52 NY2d 440, supra). The Karen, Roth and Hudak claims were then filed May 11, 1981, June 18, 1981 and June 29, 1981, respectively.


This contempt proceeding stems from the main action between 62 individual members together with their Liquor Salesman’s Union, Local 2 of the State of New York, AFL-CIO, plaintiffs, against Metropolitan Package Store Association, Inc., defendant. The individual plaintiffs are employed by wholesale liquor suppliers having as their customers the retailers in Harlem who are members of the defendant. Because of picketing and boycotting by respondent and his group since July, 1959, which hit them in their pocketbooks, these members of the defendant in February, 1960 began to <mask> the individual plaintiffs, switching their purchases of liquor through white salesmen to negro salesmen. The plaintiffs sued in equity to enjoin such substitutions based solely on race and color of the persons. On March 15,1960 a temporary injunction was granted by Mr. Justice Thomas A. Aurelio. On consent of both sides, on March 29, 1960, judgment was signed and it was entered March 30,1960 (Sup. Ct., N. Y. Co., Index No. 3618-1960). The judgment contained these pertinent decretal provisions:


Among other allegations, the State charges the defendants with a conspiracy and unlawful concert of action, the substantial *189terms of which were £ ‘ to oppose the single contract and adopt the separate contracts system of bidding for all public building construction projects”. Also alleged in the sixth paragraph are allegations to the effect- that the defendants and co-conspirators did <mask>, “ by refusing to and refraining from bidding to general contractors and by refusing to and refraining from selling and/or installing plumbing and other equipment for public building construction projects let or to be let under a single contract ”; that they did “ exert influence upon public agencies, general contractors * * * to oppose the single contract and adopt the separate contracts system of bidding for public construction projects ”; and that the defendants “ should boycott by refusing to * * * bid on projects which did not include within the plumbing contract all work ‘ classified ’ by defendants * * * as plumbing work ”; and, “to eliminate competition”. The complaint further alleges that the defendants, “ (a) Discussed refraining from bidding * * * on single contract projects to be let * * * by the State University Construction Fund # * at Syracuse Plumbers Association meetings; (b) Advocated and * * * preached # * disadvantages of the single contract method * * * (c) Defendant Association * * * was represented at meetings * * * where it was resolved to advance the use of the separate contract method of awarding jobs; (d) * * * attended * * * meetings at which not bidding to general contractors on * * * single contract projects was determined to be a highly effective means of defeating the single contract method of awarding jobs * * *. (g) Refrained from submitting bids to general contractors for various State University Construction Fund single contract projects including the following: Alfred Heating Plant, Cobleskill Library, Oswego Field House, Potsdam Science Building, and refrained from submitting bids * s * on Cornell Physical Science Building and the Harpur College Dormitory; (j) Coerced, compelled * * “ that plumbing contractors * * * withdraw from the bidding on the Wetzel Road Elementary School project on the grounds that the architect did not include certain items such as kitchen equipment in the plumbing contract; (1) The local plumbers union sent to the sole plumbing contractor who did not withdraw from the bidding, a non-member of defendant association, a letter warning him that if he should subsequently accept contracts such as the Wetzel Road Elementary School contract, it is ‘highly possible ’ that his union agreement ‘ will be terminated ’


The records of the Brooklyn House of Detention show that on July 24, of 55 scheduled to appear, 31-attended, 24 refused; on July 25, of 86 scheduled to appear, 54 attended, 32 refused; on July 26, of 72 scheduled to appear, 52 attended, 20 refused; and on July 27, of 66 scheduled to appear, 45 attended, 21 refused, showing that the prisoner <mask> of this court was not unanimous. Despite the argument now urged, no claim was made during the trial that the defendant feared for his safety if he failed to participate in the boycott. Thus, a post-conviction hearing would serve no useful purpose.


This case would certainly bolster the authority of a decision like People v. Bellows (281 N. Y. 67 [1939]), in which our Court of Appeals sustained a conviction for disorderly conduct arising out of picketing in a secondary <mask> situation. But People v. Bellows was decided before the Supreme Court had laid down the proposition that picketing was an expression of labor’s right to freedom of speech. Two years later, in the case of People v. Muller (286 N. Y. 281 [1941]), the Court of Appeals reversed a conviction for disorderly conduct in a similar situation by a split decision of four to three. One may doubt whether this case would have been decided the same way if it had come after the decision of Carpenter’s Union v. Ritter’s Cafe (supra). Nevertheless, the majority of the Court of Appeals in People v. Muller (supra), made a far more logical application of the principles of the Thornhill and Carlson cases than did the Supreme Court in the Ritter case.2


Concourse contends that the First Amendment is not an absolute defense to plaintiffs common-law claims, relying on Jews for Jesus v Jewish Community Relations Council (968d 286 [2d Cir 1992]). The Jews for Jesus case is readily distinguishable. First, defendants there were not petitioning the government, but were threatening a private entity, the Stevensville Hotel, with an economic <mask> if it did not cancel a contract with plaintiff. (968d, at 298 [“the instant conduct was not political speech designed to secure governmental action to vindicate legitimate rights, but was a series of private communications in the context of a private dispute”].) Second, a boycott designed to secure an unlawful objective, namely violation of antidiscrimination statutes, is not protected by the First Amendment. (Supra, at 297.)


From this testimony it is clear that Flynn had agreed to pay back part of the moneys he received. Flynn was thus accorded the right to work; and he was free to refuse to work under these conditions. He was a free agent. He did not quit. The agreement in in itself was not unlawful. There is nothing in the record showing that this was an unlawful combination to evade the income tax laws or any other law. We are not here concerned with consideration of the dangers of unfair competition or the injuries that may flow from it. Cheaper labor, perhaps, enabled defendant to compete at some advantage. The question of public policy, <mask> or of restraint of trade to accomplish a certain result do not enter into this consideration. Clearly, these parties contemplated a means of deceiving the union of which Flynn was a member. The subsequent manner in which and the place where the repayment of the money was made in order to- carry out this purpose, indicates the concealment of the fact from any union men who might be around at the time. The method used was to pretend that Flynn was employed at eight dollars and fifty cents per day by giving him the pay envelope weekly for the full amount *321and then requiring a part repayment. He was not a victim of this practice; he was a party to an established understanding. In fact, Flynn testified in this regard as follows: “ Q. Did he make that statement to you practically every time that he collected the money — that if you did not pay you would lose your job? A. Well, not every time, no, not all the time.” Flynn had had previous similar experiences with the defendant. He knew his methods, and yet he continued to seek such employment from and work for the defendant under the circumstances. Each of the parties had a “ right of choice ” in the matter. If such an arrangement existed as appears in this testimony, then the money was due defendant from Flynn.


Thus, plaintiff states that there was a <mask> initiated and carried out by the defendants against general contractors because of the position taken by the defendant trade association in adopting the resolution on June 19, 1962 and other activities by defendants. Defendants deny any such intention and allege facts disputing the alleged boycott. The acts of defendants must be considered in the light of all the surrounding circumstances so as to determine the true meaning to be attributed to defendants’ conduct. The alleged conspiracy must be judged by viewing it in its entirety and not by dismembering and viewing its separate parts.


Therefore, the use by defendants of the slogans previously mentioned does not exceed limitations placed on speech communication generally. The more refined question remains whether the statements made by defendants are permissible *288in the specific setting of a product <mask>. While guarantees accorded free expression ordinarily do not differentiate between ideas disseminated (see Hudgens v NLRB, 424 US 507), in labor matters language employed during picketing must not advocate proscribed secondary objections.


It is inherent, in its defined role, that a labor union must affect third parties in the course of the bargaining process with its ‘ ‘ adversary ’ ’, the employer. ‘ ‘ The principal weapons which the unions have developed are the strike, the <mask> and the practice of picketing. These devices are used to force the employer to shut down his plant or business either by depriving him of labor or of customers until compliance with,the demands of the union is made. Contractual relations are, of course, interfered with, deliberately and intentionally by the defendant unions ” (1 Harper & James, Torts, p. 523).


. Both these cases uphold picketing whose intent was to <mask> or otherwise economically coerce plaintiffs who had direct connection with the premises out of which the picketers’ grievances arose. Segal upheld that portion of the injunction against picketing unrelated persons with businesses in the area. While this related/unrelated distinction is not involved here, Claiborne appears to have somewhat modified it, depending on the speech and the circumstances.


Defendants’ affidavits do not substantially controvert the basics of the picture outlined. They argue, instead, that the stay is too broad in scope; that plaintiff failed to show irreparable injury; that, in fact, cessation of classes resulted from student <mask> because of the announced increase in tuition, not disruption, and that the few who wished to attend classes in Shuster Hall could have been accommodated in another building at little expense or injury to plaintiff. The theft and vandalism are described as an isolated incident; nor, say defendants, were they shown to have been involved in the incident. They also *980state that students remained overnight in the library with the permission of a dean; and further, that at a meeting of the faculty, a motion was adopted urging the president of the college to instruct the Corporation Counsel to discontinue the action.


By contrast, the public's interest in engaging in expressive activity in the exterior portions of Six Flags Discovery Kingdom is strong. The venue attracts up to 15,000 people daily, and the protesters' message is directly connected to the animal attractions featured at the park. In effect the protesters are urging a <mask>, which is a traditional form of speech to which our state Constitution affords even greater protection than the First Amendment. (See Fashion Valley Mall , supra , 42 Cal.4th at pp. 867-868, 69 Cal.Rptr.3d 288, 172 P.3d 742.) "According to our Supreme Court, '[u]rging customers to boycott a store lies at the core of the right to free speech.' " ( Best Friends Animal Society v. Macerich Westside Pavilion Property LLC (2011) 193 Cal.App.4th 168, 175, 122 Cal.Rptr.3d 277.) Yet there are no other areas within the amusement park available for free expression, because the interior area is by ticketed admission only.20 And *743importantly, though not by itself dispositive, the park is zoned as "quasi-public," which under the local zoning code means it's a facility "of a public nature." As discussed, that designation is not meaningless. It implies the property has attributes in which the public has an interest, even if in private hands. Whatever the precise contours of those attributes, the *666phrase "quasi-public" connotes some measure of yielding to individual rights of free expression. (See Albertson's , supra , 107 Cal.App.4th at p. 119, 131 Cal.Rptr.2d 721 [discussing when "private property is to be considered quasi-public property subject to the exercise of constitutional rights of free speech and assembly"].) Then, of course, there is the fact that this amusement park falls within the same local zoning class as a traditional public park, and it is categorized in the city's general plan as falling within the same open space category as a community park. While zoning laws alone do not define what is a public forum for constitutional free speech purposes, in combination with all of the other factors we have discussed they strongly suggest here the unticketed, exterior areas of this amusement park are open to the public "in the same manner as public streets or parks." ( Fashion Valley Mall , supra , 42 Cal.4th at p. 859, 69 Cal.Rptr.3d 288, 172 P.3d 742.)


In summary, whether classified as permissible secondary activity (Manhattan Steam Bakery v Schindler, 250 App Div 467) or "an expansion of the primary dispute to a secondary situs” (Big Apple Supermarkets v Dutto, 237 F Supp 774, 778, supra), picketing at the site of the retailer designed to persuade consumers to cease purchasing goods of an employer with which the union is engaged in a labor dispute is protected activity under the First Amendment and New York law and "involves or grows out of a labor dispute” within the meaning of section 807 of the Labor Law. The same conclusion has been reached by sister States interpreting analogous statutes or common-law rules (Galler v Slurzberg, 27 NJ Super 139, supra; Jones v Demoulas Super Markets, 365 Mass —, supra; Almac’s Inc. v Rhode Is. Grape <mask> Committee, 110 R.I. 36, supra; C. Comella, Inc. v UFW Organizing Committee, 33 Ohio App 2d 61, supra). The question remains, however, whether UFW’s activities did in fact constitute a product boycott as heretofore defined. The court answers this question in the affirmative.


Plaintiff claims that more than 100,000 teachers in the New York State school districts are members of the defendant Teachers Association and as such are subject to censure, suspension or expulsion if they do not comply with the “ urgent advisory Plaintiffs are requesting that defendants he enjoined from continuing the ‘ ‘ urgent advisory ’ ’ in effect; that they he mandated to advise the local teachers associations throughout the State and all others to whom they have distributed the 11 urgent advisory ”, that the advisory is of no force and effect; that they he enjoined from imposing any sanctions against the plaintiff and threatening any censure against any person applying for employment with the plaintiff. The plaintiffs urge that they are carrying out a governmental function in providing education to the school children of District No. 3 and that the attempts by defendant to “ blacklist” the plaintiffs’ school district is an interference with the governmental function in that defendants seek to “ dry up ” the teaching talents which would normally be available to the district. According to the affidavit of District Principal Wallen, the spring of the year is an active season for recruiting new teachers and, as the plaintiff is rapidly expanding and in the process of construction, irreparable harm will result to plaintiff and to the public which it serves. The plaintiff in its brief analogizes the actions of the defendants to be a secondary <mask>. Plaintiff relies on the recent New Jersey case of Board of Educ., Borough of Union Beach v. New Jersey Educ. Assn. (96 N. J. Super. 371, affd. 53 N. J. 29). In that case the New Jersey Education Association disseminated a document similar to the ‘ ‘ urgent advisory ’ ’ herein but was restrained by the court from further distribution or the publication of similar statements and from threatening reprisals against applicants for employment.


Insofar as respondent seeks an award in arbitration in the nature of a mandatory injunction (respondent’s memorandum, pp. 19, 20) directing petitioner to engage in a secondary <mask>, I am of the opinion that this would violate the determination in Carpenters’ Union v. Labor Bd. (supra) and I hold, therefore, that such an issue may not be arbitrated and the motion is granted for a stay to this extent.


Section 155.05 (subd 2, par [e]) of the Penal Law defines extortion as follows: "A person obtains property by extortion when he compels or induces another person to deliver such property to himself or to a third person by means of instilling in him a fear that, if the property is not so delivered, the actor or another will * * * (vi) Cause a strike, <mask> or other collective labor group action injurious to some person’s business; except that such threat shall not be deemed extortion when the property is demanded or received for the benefit of the group in whose interest the actor purports to act, or * * * (viii) Use or abuse his position as a public servant by performing some act within or related to his official duties, or by *98failing or refusing to perform an official duty, in such manner as to affect some person adversely” (emphasis supplied).


There remains for consideration the question whether the proof offered by the Transit Authority establishes that Zelano violated the provisions of Mr. Justice Ltjpiano’s order. That order enjoined and restrained Zelano and others “from instigating, promoting, or carrying on a strike or other work stoppage of employees of the plaintiff * * * or engaging in any action of a similar nature or * * * attempting or directing the taking of any action which might cause any employee of the plaintiff * * # to discontinue working for the plaintiff ”. The Transit Authority has adduced evidence that on December 8, 1957 Zelano, after a meeting of the members of the Motormen’s Benevolent Association, Inc., had been called to order by its president, Theodore Loos, took over the chairmanship of the meeting; that he announced that the officers of the organization would be ‘ bound by any decision that the organization might make ’ ’; that he stated that there were three causes of action available to the members: (1) to <mask> a planned labor election to be held on December 16, (2) to combine with other organizations of craft employees and participate in said election, and (3) a course of action which “ should be obvious ”. The Authority’s evidence established further, that the first two causes were voted upon and were rejected, after which Zelano stated that the board of directors had adopted a resolution that if a one unit election was forced upon them the association would take militant action against the Transit Authority; that Zelano then placed the resolution before the membership for its vote, saying ‘ ‘ This is serious, and in all seriousness I ask you gentlemen what is your pleasure ’ ’; that a vote was taken and the resolution adopted, about two thirds of the members present voting for its adoption. According to the evidence submitted by the Authority, Loos then came forward and entertained a motion as to what time a strike should be called. Admittedly, Zelano did not participate in the vote upon the resolution, and told the members that he would take no part in the decision and that “ they could do just what they wanted to do ”. In the court’s opinion, this evidence fails to establish that Zelano, at the meeting of December 8, 1957, committed any violation of the injunction order issued by Mr. Justice Lupiano. His presiding over a meeting at which several propositions were voted upon, only *494one of which could result in a strike, if adopted, without participating in the voting or attempting to influence the vote, is insufficient to constitute “ instigating, promoting, or carrying on a strike ” or “ attempting or directing the taking of any action ’ ’ which might cause any employee to discontinue working for the plaintiff. The quoted language of Mr. Justice Ltjpiano’s order cannot reasonably and fairly be interpreted as including Zelano’s activities at the meeting of December 8, as established by the evidence. In order to establish a contempt of court, which is punishable by a jail sentence, the evidence of a violation of the court’s mandate must be clear and convincing. If the mandate does not clearly prohibit the action claimed to constitute a contempt, the motion to punish as for a contempt must he denied.


The court must apply these general principles to the case at bar. In its second cause of action, plaintiff has alleged the unfair labor practice defined in section 8 of the National Labor Relations Act (U. S. Code, tit. 29, § 158, subd. [b], par. [7]), i. e., “ to picket or cause to be picketed, or threaten to picket * * * where an object thereof is forcing or requiring an employer to recognize or bargain with a labor organization” under certain circumstances. The National Labor Relations Board has exclusive jurisdiction over this unfair labor practice and the State courts have been pre-empted from jurisdiction. Intermingled with the pleaded facts of the picketing, however, are the allegations of a secondary <mask>. Under the allegations of a secondary boycott, this court would have jurisdiction pursuant to section 303. (See Teamsters Union v. Morton, 377 U. S. 252.) Under the circumstances, this court will not take it *449upon itself to fractionalize the facts pleaded in the second cause of action, and feels that the best course is to dismiss the second cause of action, with leave to plaintiff to replead as a separate cause of action the facts constituting a violation of section 303 over which this court has jurisdiction. For the same reasons, the third cause of action, in which plaintiff seeks punitive damages, also is dismissed with leave to replead.


The investigation as to whether or not there is a <mask> by the members of the building trade industry and others to unlawfully interfere with the free exercise of any activity in this State or the free pursuit in this State of any lawful business, trade or occupation, in the manufacture, production, transportation, marketing or sale of any article or commodity of common use or of any service, is properly a subject for investigation by the Attorney-General. He claims that there is information in his possession of an alleged boycott and conspiracy to boycott bidding upon construction under the New York State University Construction Fund. If there is such information in his possession, then the Attorney-General is justified in conducting an investigation into the practices. It is clearly one of the courses of conduct specified or envisaged under section 343 of the General Business. Law.


*1049engaging in, or to abstain from engaging in conduct in which he has a legal right to engage, by means of instilling in him a fear that, if the demand is not complied with, the actor or another will: ” ” * 3. Engage in other conduct constituting a crime; or * * * 6. Cause a strike, <mask> or other collective labor group action injurious to some person’s business; except that such a threat shall not be deemed coercive when the act or omission compelled is for tie benefit of the group in whose interest tie actor purports to act,”


Young is convicted of contempt of this court in that on April 2, 1960, he willfully violated the judgment of this court by himself picketing and by acting in concert with others, by threatening a <mask> of some of defendant’s members to coerce withholding of sales and transfer of accounts from some of the individual plaintiffs to negro salesmen solely because of the color of said salesmen. He is further convicted of contempt of this court in that on April 9, 1960 he similarly violated the judgment of this court, except that he did not picket himself.


On January 26, 2016, plaintiff appeared on a CNN cable television show to discuss Trump’s threat to <mask> one of the Republican presidential primary debates unless FOX removed Megyn Kelly as a moderator. (Id. ¶¶ 45-46.) During her appearance, plaintiff characterized Trump as a “bad debater” and stated that he “comes off like a third grader faking his way through an oral report on current affairs” and was using the Megyn Kelly dispute with FOX as an excuse for avoiding the debate. (Id. ¶ 46.) The next day, during an on-air telephone call with the host of MSNBC’s Morning Joe program, Lewandowski referenced plaintiff’s comments about Trump, stating that “[t]his is the same person . . . who came to the office on multiple occasions trying to get a job from the Trump Campaign, and when she wasn’t hired clearly she went off and was upset by that.” (Id. ¶ 49.)


For purposes of this demurrer the court must accept as true the factual allegations contained therein (People v. Kalbfeld, 124 Misc. 200). It is not necessary at this time to examine into the legality of the threatened picketing by determining whether the picketing would have amounted to a primary or a secondary <mask> since the indictment alleges that the intended beneficiaries of the proposed picketing were nonunion carters. By no stretch of the imagination can it be said that a union representative can throw a picket line about a place of business in an effort to exact benefits for those who have no connection with the union. Thus, even aside from the issue of primary or secondary union activity, the acts by the defendants’ agent are not justifiable in law.


The defendant’s right to be present at all material stages in a criminal trial, including sentencing, is fundamental and is protected by both the State and Federal Constitutions (NY Const, art I, § 6; US Const 6th Amend; see also, CPL 260.20, 340.50). However this right may be waived (Diaz v United States, 223 US 442 [1912]; People v Byrnes, 33 NY2d 343 [1974]). It is well established that a waiver of the right to be present at a criminal trial may be inferred from defendant’s conduct (People v Johnson, 37 NY2d 778 [1975] [defendant’s disruptive behavior during trial proceedings sufficient to establish a waiver]; People v Epps, 37 NY2d 343, cert denied 423 US 999 [defendant’s refusal to leave his cell and attend court proceedings, after being present for two days, as part of his participation in an inmate <mask> of the courts, sufficient to establish a waiver]).


However, an examination of the language of the issue to be presented to the arbitrator clearly shows that it concerns the interpretation of the terms of the agreement insofar as it covers the employment of independent truckmen and petitioner’s alleged breach of that agreement. The unfair labor practice charges, while related to petitioner’s conduct in interfering with respondent’s rights under the contract, substantially relate to petitioner’s acts involving a secondary <mask> and a jurisdictional dispute to prevent the utilization of the truckman’s services by respondent.


The Attorney-General has reason to believe that petitioner on behalf of its membership engaged in a group <mask>, along with other pharmacists and trade association, of the proposed prescription drug plan for New York State employees and retirees scheduled to begin on July 1, 1986. The plan covers several hundred thousands of present and retired State employees. The Attorney-General’s belief is based on circumstantial evidence, as well as confidential information which the Attorney-General has offered to present in camera.


Respondent admits in its memorandum that it seeks to do by indirection what it cannot do directly. Despite the existence of the hot cargo clause it cannot induce petitioner’s employees (members of respondent) to engage in a secondary <mask>, and any attempt by it to do so is an unfair labor practice which violates section 8 (subd. [b], par. [4], cl. [A]) of the Labor Management Relations Act of 1947 (61 U. S. Stat. 136, 141; U. S. Code, tit. 29, § 158, subd. [b], par. [4], cl. [A]; Carpenters’ Union v. Labor Bd., supra).


The trustees of SUCF were given the discretionary power in contracting for State University construction to specify the use of single rather than separate contracts (Education Law, §§ 370-384). They designated the Downstate Medical Center as the first project on which the work would be contracted and bid on a single contract basis. It is this action which seemingly *259triggered the meeting of June 19,1962, at which proposals were adopted, claimed by the Attorney-General as illegal actions. The Attorney-General points out that some of the members “ reasoned that they did not feel the Association should be on record as refusing to bid on any job.” Furthermore, it was then decided that ‘ ‘ plumbing contractors * * * should not participate.” It is thus argued that a group <mask> to refrain from bidding involving each participant’s surrender of economic benefits and profits was established, necessarily contemplating mutual assurances of co-operation.


The line drawn between product boycotts and secondary boycotts has not been a clear one (cf. American Bread Co. v NLRB, 411d 147). So defendants, while claiming that their *271activities have constituted a product <mask>, posit nonetheless that section 807 sanctions appeals to consumers not only to refrain from purchasing the primary’s product but even to cease doing business altogether with the secondary employer, in short, that section 807 condones secondary boycotts (cf. Almac’s, Inc. v Rhode Is. Grape Boycott Committee, supra).


Near to the beginning I refer to the condition existing at P. S. 36-125 Manhattan. That school is not, like those referred to above, a Demonstration School. Now — as part of the <mask> — the parents asked for a consultative voice in finding a replacement for the principal. A procedure was sought by which the Board of Education could appoint a principal for the school who would be familiar with the problems of education in disadvantaged areas and who would have the support of the local community. In the early part of 1967 Murry Hart, District Superintendent of the district which includes P. S. 36-125, communicated by mail with the first 50 or 60 persons on the eligibility list as to their interest in the position but he received no response to his letters. Thereafter Executive Superintendent of Schools, Nathan Brown, directed Assistant Superintendent of Schools Abraham Wilner to conduct a search for a principal from the existing eligible *41list. Mr. Wilner asked a number of Assistant Superintendents and principals for names of people whom they might recommend as possible principal for the school. Mr. Wilner looked for people who had considerable experience in schools in disadvantaged neighborhoods so that it could be expected from that person, personal knowledge of such things as good - reading programs,. good programs dealing with the sociological problems that are faced by children who come from disadvantaged circumstances; or a person who had considerable experience in working with parent associations and other community agencies; or a person about whom supervisors could say that he has the capacity to work very hard, to stand up under a great deal of pressure and is "able to win people and secure their confidence in the programs that he is following. From his conversations with supervisors and principals he compiled a list of about 25 names to whom he wrote or telephoned in April, inviting them to see him with respect to the position. Fifteen came and 12 agreed to discuss the matter further with Superintendent Hart. During the interview Mr. Wilner advised them that they would eventually be required to be interviewed by a group made up of parents and that one of them would be appointed if the group and the Board of Education selected them. Among these 12 was Mrs. Edna Gordon who was an acting principal and had been an assistant principal for four years prior thereto. Within a few days Mrs. Gordon was interviewed by Superintendent Hart.


In Teamsters Union v Morton (377 US 252 [1964]), relied on by the Council and a preemption case following the Machinists formula developed subsequently, the Supreme Court "struck down an Ohio labor law that prohibited a type of secondary <mask> neither prohibited nor protected under the NLRA.” (Metropolitan Life Ins. Co. v Massachusetts, 471 US, at 750, supra.) The Court found it necessary to determine, "even though it may be assumed that at least some of the secondary activity here involved was neither protected nor prohibited”, *680whether Congress foreclosed the field concerning regulation of such conduct by enactment of the NLRA. (Teamsters Union v Morton, 377 US, at 258, supra.) The Court determined that, with respect to the peaceful secondary employer activity at issue in Morton, "[allowing its use is part of the balance struck by Congress between the conflicting interests of the union, the employees, the employer and the community.” (Supra, 377 US, at 259.) In the Machinists case itself, the Court made clear that its prior view, "that state power is not pre-empted as to peaceful conduct neither protected by section 7 nor prohibited by section 8 of the federal Act” was in error. (Machinists v Wisconsin Empl. Relations Commn., 427 US, at 141, supra.) This followed because "a particular activity might be 'protected’ by federal law not only when it fell within § 7, but also when it was an activity that Congress intended to be 'unrestricted by any governmental power to regulate’ because it was among the permissible 'economic weapons in reserve * * * actual exercise [of which] on occasion by the parties’ ” is part of the balance Congress intended to put in place. (Machinists v Wisconsin Empl. Relations Commn., 427 US, at 141, supra [emphasis in original].)


Plaintiff has withdrawn without prejudice its challenge to the Association’s by-laws enumerated in article IV, paragraph 5; and article V, paragraphs 1, 2, 3. Specifically the Attorney-General charges that defendants and their Association’s action and decision that “ plumbing contractors * * * should not partcipate in any arrangement that does not provide for such separate bid and separate contract” is an illegal agreement, arrangement and combination to <mask>, to coerce the SUCF to comply with their demands and let contracts by separate contracts, in violation of the Donnelly Act. On June 19, 1962, it was reported at a membership meeting of the Association that “ many questions as to whether or not association members could refrain from submitting bids on a job known as The Downstate Medical Center, recently advertised by the aforementioned (New York State University) construction fund under a single contract ” had been considered. The following action was then adopted by majority vote of the members of the defendant Association.


The instant application for a temporary injunction does not fall within the exceptions to the rule that exclusive primary jurisdiction rests in the National Labor Relations Board. The moving affidavits contain no evidence of violence, intimidation, or disorder, The only affidavit dealing with the subject is that *160of Hipson, plaintiff’s vice-president. That affidavit states that at present there are only two pickets at each gate (this is not mass picketing) and that on several occasions each day “the pickets shouted vile, obscene and threatening imprecations at employees entering and leaving the plant ”. Apart from the fact that this vague, indefinite statement is conclusory in nature, there is the more serious difficulty that these occasional shouts fall far short of constituting conduct which permits State courts to intervene in matters relating to interstate commerce over which the National Labor Relations Board possesses exclusive primary jurisdiction. The charge that defendants have induced others not to deal with plaintiff is one of secondary <mask>, cognizable only by the board. The charge that the signs used by the pickets are false is also one of which the board has jurisdiction. Furthermore, at least 16 of the employees are coneededly on strike and it is not clear that the signs which state “ employees ” are on strike are false.


The plaintiff is not in a position to raise the objection that the agreement to discharge the old mortgage, and to receive the new one in lieu of it, was invalid because the guardian violated his duty and transcended his power in making such an agreement. Such a transaction is not absolutely void, but is voidable only, at the election of the infants on coming of age. It being obviously for the benefit of the infants that the lien shall be established and upheld, we will give effect to the intendment, that their ratification will be forthcoming at the proper time, and to the rule that no one but themselves can disavow the authority of their guardian to make the agreement. (Co. Lit., 2 b; 2 Kent Com., 236; Keane v. <mask>, 2 H. Bl., 511; U. S. v. Bainbridge, 1 Mason, 82.) The plaintiff has no claim to be the champion or protector of the infants, and can acquire no rights b} assuming that character.


The Attorney-General argues in his memorandum of law that "a group <mask> * * * intrinsically and inherently restrains the free exercise of trade, business and commerce, and competition in the supply of goods and services, and such concerted action is therefore illegal on its face”; in short, that every boycott is per se illegal. The law is not nearly so sweeping in its scope. Certainly, it recognizes legality as well as illegality in the use of the boycott (cf 15A C.J.S., Conspiracy, § 12, subds a, b). At this very moment, naturalists concerned with the survival of marine mammals are organizing a boycott of Japanese and Soviet products. Other naturalists have long advocated a boycott of articles made from the skins of endangered species of animals. No prodigy of memory is required to recall pre-World War II boycotts of exports from certain totalitarian nations. It has never been suggested that boycott so motivated ran afoul of the anti-trust laws.


In this action sounding in tortious interference with business relationships, Street Beat asserts that defendants wrote to Sears and Charming Shoppes, demanding that they cease selling plaintiffs goods until the workers in the Federal action were paid $280,000 and that plaintiff “falsely claimed that workers were forced to work £as many as 137 hours a week’ to fabricate garments sold by plaintiffs customers.” (Complaint 23.) Plaintiff also alleges that defendants held press conferences and rallies at Sears and Charming Shoppes, urging consumers to <mask> those stores, and that defendants “used mob violence to intimidate workers and community organizers and during which defendants illegally and violently attacked persons in attendance who disagreed with their position.” (Complaint 24.)


The continuation of union activities at the site of plaintiff’s stores well past the commencement of this action, coupled with the testimony of UFW members that union policy favors the continued <mask> of products produced by growers who refuse to bargain collectively in the face of UFW statutory certification, leads the court to conclude that the acts herein enjoined are likely to occur in the future unless restrained (May’s Furs & Ready-to-Wear v Bauer, 282 NY 331, supra).


However, as the Sixth Circuit has aptly noted, “Hutto doesn’t tell us how to choose” whether § 1988 fees can or should be assessed against a state, a county department or entity, or a defendant in her official capacity. Miller v. Caudill, 936 F.3d 442, 450 (6th Cir. 2019). “[T]he Hutto Court faced a choice between individual officers or the government they served, so the Court never determined when and how liability could shift amongst three possible parties,” id. (emphasis in original)—in this case the Sheriff, the County, and the State. This problem frequently arises when it comes to certain county officials, whose duties and actions often depend on both county and state laws or policies. See, e.g., id. at 450-52 (discussing a county clerk responsible for issuing marriage licenses as dictated by state law); Echols v. Parker, 909 F.2d 795, 800-01 (Sth Cir. 1990) (discussing a county attorney, district attorney, and county judge enforcing a state anti-<mask> law).


A literal reading of the statute lends support to defendants’ position. Clauses (5), (6) and (10) of section 807 (subd 1, par [f]) of the Labor Law, when taken in conjunction, provide that no item of relief granted shall prohibit any person or persons by means of "advertising, speaking, picketing, patrolling” (Labor Law, § 807, subd 1, par [f], cl [5]) from "advising, urging or inducing without fraud, violence or threat thereof, others” (Labor Law, § 807, subd 1, par [f], cl [10]) tó "ceas[e] to patronize * * * any person or persons” (Labor Law, § 807, subd 1, par [f], cl [6]). The words "person or persons” mean in the present context store or stores. Federal decisions, moreover, indicate that the Norris-La Guardia Act, the prototype of section 807, fully shielded secondary activity, such as secondary boycotts, from the injunctive power of the courts (Railroad Trainmen v Terminal Co., 394 US 369; Amalgamated Assn. etc. v Dixie Motor Coach Corp., 170d 902; NLRB v Kohler Swiss Chocolates Co., 130d 503). Be that as it may, however, this court is, of course, bound by Opera on Tour v Weber (285 NY 348, supra; see, also, Goldfinger v Feintuch, 276 NY 281, supra) in which the Court of Appeals declared a secondary <mask> to be an unlawful labor objective and thereby interpreted by implication section 807 (subd 1, par [f], cl [6]) of the Labor Law to apply solely to cessation of business with a primary employer.


Judgment, Supreme Court, New York County (Andrew S. Borrok, J.), entered March 11, 2021, in favor of defendant in the amount of $1,471,761.33, unanimously reversed, on the law, without costs, and the judgment vacated. Order, same court and Justice, entered October 1, 2020, which, insofar as appealed from as limited by the briefs, denied plaintiff's motion for summary judgment dismissing the counterclaims and the affirmative defense based on liquidated damages, and in its favor on its cause of action for <mask> of contract, and granted defendant's motion for summary judgment dismissing the complaint and in its favor on its counterclaim for liquidated damages, unanimously modified, on the law, to deny defendant's motion for summary judgment in its entirety, and otherwise affirmed, without costs.


*497“two claims for wrongful discharge, to wit, for <mask> of plaintiffs employment as a stockbroker with Morgan Stanley Dean Witter, on account of his ‘informing’ to management of one of its stockbrokers, George Repper, for his flagrant violation of 10-b of the Securities Act of 1934, * * * and on account of age discrimination * * * [Defendants chose to discharge plaintiff, from [sic] bringing unlawful conduct to their attention. Section 10-b of the Securities Act of 1934 would be stripped of its purpose, were the Courts to allow ‘informing/ whistle blowing’ employees to be fired without consequence.” Defendants’ Motion


The fourth cause of action alleges a wrongful discharge. The defendants assert that the solicitation of advertising was actually at an end. Furthermore, they contend that the plaintiff’s attitude and conduct in intercepting checks and returning them to the advertisers was wrongful and would warrant the termination of the contract. If in breach of the contract, this would be a good defense to the charge of <mask>. These facts create an issue to be determined at a trial.


The same is largely true of statements by plaintiff or her attorney that she could not have "made her complaint" without relying on facts she learned *605from her work in preparing the tax returns. That is the essence of her causes of action - that in connection with her work in preparing and submitting sales and use tax returns she learned that not all use tax that was due was being reported, and she was terminated when and because she brought the matter to light. The implied taxpayer privilege precludes the forced disclosure of tax returns and of the information contained in those returns. (See, e.g., Schnabel v. Superior Court (1993) 5 Cal.4th 704, 719-721, 21 Cal.Rptr.2d 200, 854 P.2d 1117 ; Sav-On Drugs, Inc. v. Superior Court (1975) 15 Cal.3d 1, 6-7, 123 Cal.Rptr. 283, 538 P.2d 739 ; Brown v. Superior Court (1977) 71 Cal.App.3d 141, 139 Cal.Rptr. 327.) But neither case law nor reason suggests that this implied privilege precludes an employee from speaking up when it discovers that the employer is filing incorrect or even fraudulent returns, or precludes a <mask> claim if the employee is discharged for doing so. Prosecution of plaintiff's claim does not require *756the forced production of defendant's returns or of the content of its returns. Plaintiff's right to recover turns only on whether she was discharged for communicating her reasonable belief that defendant was not properly reporting its use tax obligation. ( Haney v. Aramark Uniform Services, Inc. (2004) 121 Cal.App.4th 623, 641, 17 Cal.Rptr.3d 336.) The elements of her causes of action were alleged and can be proved without violating the implied taxpayer privilege.


O'Gara Coach's May 16, 2018 request for judicial notice, which includes the three documents filed with the Secretary of State identified in this paragraph, as well as O'Gara Coach's complaint against Richie for misappropriation of trade secrets and breach of contract, is granted. The court also grants Ra's June 15, 2018 request for judicial notice of Richie's cross-complaint against O'Gara Coach in LASC no. BC683608 for <mask>, breach of contract and fraud. O'Gara Coach's supplemental request for judicial notice, filed December 11, 2018, is denied as unnecessary.


See Counterclaim ¶ 135 (“Counterclaimant’s termination was in bad faith and was in retaliation for voicing his concerns about Investor Defendants’ wrongful actions.”); Counterclaim ¶ 82 (“It is evident that Investor Defendants attempted to use this contrived harassment claim to push their own agenda through whatever means possible and gain control of the Company even asking the Company’s counsel in the beginning of the investigation whether they can fire Eksin.”); Counterclaim ¶¶ 76–77 (“Upon information and belief, this employee [who brought the harassment claim] collaborated with Investor Defendants and Directors of Lidya appointed by the Investor Defendants to create the means for Investor Defendants to gain control over the Company. In fact, Accion and other Investor Defendants used this disagreement to push Eksin out of the Company . . . .”); Counterclaim ¶¶ 72–73 (“Investor Defendants’ improper ‘freeze-out’ actions have been undertaken as part of the improper investigation, done contrary to the rights of Eksin, in dealing with the situation that arose involving claimed harassment by a former employee connected to one of the Investor Defendants and one of [sic] board directors of Lidya—all of which were found to be unfounded as to Eksin. These actions were untaken after Eksin voiced his concerns about the Investor Defendants’ questionable actions during the failed Series B fundraising process.”) (emphasis added); Counterclaim ¶ 80 (“Instead of engaging with Eksin and performing a complete and thorough investigation, Counter-Defendants engaged in secret negotiations without Eksin’s involvement or input, all to his severe detriment, as part of what appears to have been a larger plan to cut Eksin out of the Company.”). In my view, Eksin has done enough to satisfy notice pleading under Rule 8 with respect to the factual bases of his <mask> claim, especially considering his pro se status. See, e.g., Johnson v. State, 442 A.2d 1362, 1364 (Del. 1982) (“[W]e adopt the view that a pro se pleading is judged by a less stringent standard than a pleading or document filed by an attorney.”) (internal quotation marks omitted); Thornton v. Bernard Techs., Inc., 2009 WL 426179, at *1 (Del. Ch. Feb. 20, 2009) (“Because this is a pro se pleading, it may be judged by a ‘less stringent standard’ than one filed by an attorney. However, proceeding pro se will not Lidya Holdings Inc., et al. v. Ercin Eksin C.A. No. 2021-0110-JRS January 31, 2022


“after considering the pleadings, the testimony and evidence presented at the hearing, and post hearing submissions, decided that “(1) Respondents are jointly and severally liable for and shall pay to claimant compensatory damages in the amount of $182,500.00[.] “(2) Claimant’s claim for monetary damages for defamation is denied. “(3) Recommended expungement of the termination comment in section 3 of claimant’s form U5, and recommended that the termination comment be replaced with ‘Due to personal reasons’ and recommended expungement of the ‘yes’ answer to question 7C (3) and recommended the ‘yes’ answer be changed to ‘no’ and the criminal disclosure reporting page be deleted in its entirety ‘based on the defamatory nature of the information.’ “(4) claimant is liable for and shall pay Kaufman Brothers compensatory damages in the amount of $15,000.00. “(5) any and all relief not specifically addressed herein, including punitive damages, is denied.” Petitioner now moves to confirm the arbitrators’ award. Respondents oppose the petition and cross-move to vacate the arbitrators’ award against respondents and modify the award against petitioner. Respondents allege that the arbitrators awarded petitioner $182,500 on a claim for <mask>, when petitioner did not bring a claim for wrongful termination, and a wrongful termination cause of action does not exist in the State of New York. Respondents further allege that the arbitrators ignored the evidence and rendered an irrational decision by awarding KBRO $15,000 for unrecovered commissions draws rather than the correct amount clearly due of $30,232.91, and ignored KBRO’s claim for $10,000 for the stolen tickets and damage inflicted by petitioner.


As a result of this holding, plaintiff commenced a legal malpractice action against Bello in August 2007, alleging causes of action for both negligence and breach of contract arising out of his representation in the <mask> action against SIUH. According to plaintiff, Bello’s negligence included, inter alia, the failure to timely assert a Labor Law § 740 cause of action, and the failure to recognize the effect upon her remaining causes of action of asserting the time-barred action under Labor Law § 740 in the complaint. According to plaintiff, this combination of errors ultimately resulted in the dismissal of her complaint, thereby barring her from recovering any damages against SIUH for her alleged wrongful termination. She also alleges that “but for” Bello’s negligence she would have been successful in her action against the hospital. However, this complaint was subsequently dismissed for pleading deficiencies pursuant to CPLR 3211 (a) (7).


Appellants filed a complaint against Bold on July 15, 2015, alleging three separate counts: (1) breach of contract, (2) <mask>, and (3) right to accounting and production of records. Appellees filed an answer on August 10, 2015, denying the essential elements of appellants' complaint. On August 13, 2015, appellees filed a motion to compel arbitration and stay judicial proceedings. According to the motion, the parties entered into a "Joinder Agreement" in which appellants agreed to become a party/member to the "Amended and Restated Operating Agreement" of Bold and to be fully, legally bound by, and subject to, all of the covenants, terms, and conditions of the "Operating Agreement." Article XV of the "Amended and Restated Operating Agreement" provided:


Specifically, the record contains a copy of the relevant JAMS Fee Agreement & Cancelation Policy, setting forth the details *673of the mediation and each party's agreement to pay JAMS half the mediation fee 14 days in advance of the scheduled mediation. Quiles's attorney, Bryan J. Schwartz, filed a declaration in support of Quiles's motion for attorney fees, in which he explained the circumstances of the parties' mediation as follows: "My firm attempted in good faith t[o] settle the <mask> claims with Defendants shortly after adding the wrongful termination claims to the complaint. In February 2011, I flew down to Orange County to meet with Defendants' counsel Steve Madoni about discussing settlement of the case, at his invitation, and to attend the initial case management conference in person, though I would have attended by CourtCall. Mr. Madoni did not show up at our scheduled meeting, nor did he appear for the case management conference, resulting in court sanctions. [Citation.] Later, the Parties each paid half of the fees for a mediation as to Plaintiff's wrongful termination claims with the Honorable Luis A. Cardenas (Ret.), which was set for November 25, 2015 in Orange County. The mediation was confirmed by Defendants through Mr. Madoni on October 28, 2015, after the parties began discussing a mediation some time earlier. However, after Ms. Quiles and I traveled to Orange County the Wednesday prior to Thanksgiving, Defendant Parent did not even show up to the event. Of particular significance, and without disclosing confidential settlement demands and offers, after Defendants' acceptable initial offer at the mediation, Judge Cardenas informed that Defendants' counsel had no further room to negotiate, that Defendant Parent was unavailable (or unwilling) to speak with Judge Cardenas even via telephone, and that Defendants' counsel would be leaving the mediation by 10:30 a.m. Needless to say, no settlement was reached. Attached hereto as Exhibit C is a true and correct copy of the email response from Judge Cardenas when I emailed him to request a partial refund from JAMS based upon the extraordinarily fruitless event."


As to the third cause of action, which seeks reimbursement for wages payable under an employment contract following plaintiff’s alleged <mask> as president of the corporation, the claim cannot be said to involve mismanagement of corporate assets within the purview of section 720 of the Business Corporation Law. The action is clearly one for breach of contract against the corporate employer, since directors possess broad discretion to terminate employment with or without cause (Avien, Inc. v Weiss, 50 Misc 2d 127; Matter of Paramount Publix Corp., 90d 441; 111 ALR 889). Plaintiff, however, asserts that all actions taken by the individual defendants were ultra vires because defendant Samsung America failed to make full payment for its shares pursuant to the subscription agreement. Therefore, plaintiff asserts, Samsung America had no authority to appoint the individual defendants as directors of Charisma, and the individual defendants had no power to terminate his employment.


Thus, in the administrative hearing, Wassmann could have raised her claims of racial discrimination, age discrimination, and harassment as grounds for a finding of lack of cause to dismiss her. ( Busick v. Workmen's Comp. Appeals Bd., supra , 7 Cal.3d at p. 975, 104 Cal.Rptr. 42, 500 P.2d 1386.) She did not do so. She testified at her deposition that she did raise racial discrimination in the *848administrative proceedings, but, if that were true, she failed to exhaust her judicial remedy because she did not raise racial discrimination in her petition for writ of mandate. The administrative law judge's findings are, therefore binding against Wassmann on her claims under FEHA for <mask> based on race and age, and harassment.


Framing the venue issue, the Brown court stated that there was no dispute that Alameda County was a proper venue for the FEHA claim. ( 37 Cal.3d at p. 482, 208 Cal.Rptr. 724, 691 P.2d 272.) However, the non-FEHA causes of action for emotional distress and <mask> "would normally be governed by [section 395(a) ], which controls venue in 'transitory' actions." ( Brown , at p. 482, 208 Cal.Rptr. 724, 691 P.2d 272, fns. omitted.) Thus, the court needed to decide which venue rule to apply, taking into account the fact that all three causes of action arose from the same basic set of facts. Importantly, the Brown court did not resolve this issue by classifying the FEHA claim as either local or transitory. Rather, the court examined the language of the FEHA statute to determine if it covered cases in which non-FEHA claims arising from the same facts as the FEHA claim were alleged in the *770same complaint. ( Id . at p. 484, 208 Cal.Rptr. 724, 691 P.2d 272.) The statutory language was ambiguous, but the court concluded that the purpose of the law and legislative intent supported a broad construction of the venue provision, covering cases in which FEHA claims were joined with non-FEHA claims in the same complaint. ( Id. at pp. 487-489, 208 Cal.Rptr. 724, 691 P.2d 272.) Accordingly, the court held that "the special provisions of the FEHA venue statute control in cases involving *1081FEHA claims joined with non-FEHA claims arising from the same facts. Thus, the FEHA venue statute governs the entire action and section 395 does not apply." ( Brown , at p. 487, 208 Cal.Rptr. 724, 691 P.2d 272 fn. omitted.)7


In General Dynamics Corp. v. Superior Court (1994) 7 Cal.4th 1164, 1190, 32 Cal.Rptr.2d 1, 876 P.2d 487, the Supreme Court held an in-house counsel could sue a former employer for <mask> as long as confidential information was not publicly disclosed. In Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304, 310, 106 Cal.Rptr.2d 906, this court held, based on the principles articulated in General Dynamics , that a former in-house counsel may disclose employer-client confidences to his or her own attorneys to the extent they may be relevant and necessary to the preparation and prosecution of the former counsel's wrongful termination action against the former client-employer. Client confidences in such circumstances can be protected from unwarranted public disclosure by use of protective orders, limiting the admission of evidence, in camera proceedings and the use of sealed records. (See, e.g., General Dynamics , at p. 1191, 32 Cal.Rptr.2d 1, 876 P.2d 487 ; Neal v. Health Net, Inc. , supra , 100 Cal.App.4th at p. 844, 123 Cal.Rptr.2d 202 ; see also Fox Searchlight , at pp. 309-310, 106 Cal.Rptr.2d 906.)


The purpose of CPLR 304 was to generate revenue and not to set a trap for the unwary. It is not inappropriate to require that the courts generate reasonable revenue to help fund their existence. It is quite another thing to elevate the funding of justice over its pursuit. The argument made by respondents would require dismissal of this proceeding despite the fact that the revenue collection purpose of the statute has been satisfied. A system of dispute resolution which permitted the <mask> of a career to go unchallenged based upon an inadvertent and nonprejudicial misfiling would ill deserve and not long collect the revenue which this statute was crafted to secure. A construction which defeats the statute’s basic purpose is to be avoided where possible. A construction which compels a determination that is substantively suspect should similarly be rejected.


Garcia's remaining causes of action do not arise under the wage order. The wage order's overtime regulations do not apply to taxicab drivers. ( Cal. Code Regs., tit. 8, § 11090, subd. 3(M).) Likewise, the wage order does not encompass claims for <mask> in violation of public policy or waiting time penalties. Accordingly, Garcia's claims for overtime, wrongful termination, waiting time penalties, and UCL claims resting on the foregoing are governed by the common law test articulated in Borello .


. Plaintiff does not challenge the parts of defendants’ motion seeking summary judgment regarding the Labor Law § 240 (1) with respect to Industrial Code § 23-1.7 (f) (vertical passage); § 23-1.22 (b) (1) (runways and ramps constructed for use by motor vehicles) and (4) (runways and ramps *1097constructed for use by persons and which extend to a height of over four feet); § 23-1.22 (c) (platforms used as a work area); § 23-1.30 (illumination); and § 23-1.33 (persons passing by construction, demolition or excavation operations). Therefore, plaintiffs Labor Law § 241 (6) claim, as predicated on those regulations, is deemed abandoned (see Keane v Chelsea Piers, L.P., 16 Misc 3d 1116[A], 2007 NY Slip Op 51443[U], *7 [2007], citing Genovese v Gambino, 309 AD2d 832, 833 [2003] [where plaintiff did not oppose that branch of defendant’s summary judgment motion dismissing the <mask> cause of action, his claim that he was wrongfully terminated was deemed abandoned]).


Supreme Court properly denied both plaintiff's motion and defendant's cross motions for summary judgment on the cause of action for <mask> of contract. Plaintiff's default, which was presented to the dispute resolution officer, might have been a basis for defendant to terminate the contract. However, defendant acknowledged in internal emails that the notice of default letter forming the basis of the dispute was not a termination letter, and there had been "no official agency action regarding termination of the contract yet." Neither party was entitled to summary judgment because, on the record before us, it is unclear when and under what circumstances the contract was terminated, or indeed, whether it was terminated at all.


There's no question Barber suffered a loss to his net salary because of his <mask>. So, ordering a gross-up award to make up for that loss is necessary to return him to the position he would have been in had he not been wronged. Interpreting the statute as allowing such an award is therefore preferable because it advances the statute's make-whole purpose. ( Lee v. Hanley (2015) 61 Cal.4th 1225, 1233, 191 Cal.Rptr.3d 536, 354 P.3d 334 [" 'Ultimately we choose the construction that comports most closely with the apparent intent of the lawmakers, with a view to promoting rather than defeating the general purpose of the statute' "].) As the U.S. Court *529of Appeals for the Third Circuit explained in reaching the same conclusion under the federal employment discrimination statute, "Our conclusion is driven by the 'make whole' remedial purpose of the antidiscrimination statutes. Without this type of [tax gross-up] equitable relief in appropriate cases, it would not be possible 'to restore the employee to the economic status quo that would exist but for the employer's conduct.' " ( Eshelman v. Agere Sys., Inc. (3d Cir. 2009) 554 F.3d 426, 442.) While section 19854's award provision is different than the federal statute's provision, both provide ample room for the deciding agency or court to consider whether a tax liability gross-up award is appropriate under the facts of the cases before them. I believe Barber's is a case where a gross-up award is appropriate.


Seals and Dolinar argue these authorities have been undermined by the California Supreme Court's 2008 opinion in Miklosy, supra , 44 Cal.4th 876, 80 Cal.Rptr.3d 690, 188 P.3d 629. In Miklosy , the plaintiffs alleged causes of action for retaliation in violation of the California Whistleblower *688Protection Act (§ 8547 et seq.), <mask> and constructive wrongful termination in violation of public policy, and intentional infliction of emotional distress. ( Id. at p. 884, 80 Cal.Rptr.3d 690, 188 P.3d 629.) As to the last claim, "Plaintiffs allege[d] defendants engaged in 'outrageous conduct' that was intended to, and did, cause plaintiffs 'severe emotional distress,' giving rise to common law causes of action for intentional infliction of emotional distress." ( Id. at p. 902, 80 Cal.Rptr.3d 690, 188 P.3d 629.) Miklosy concluded, "The alleged wrongful *99conduct, however, occurred at the worksite, in the normal course of the employer-employee relationship, and therefore workers' compensation is plaintiffs' exclusive remedy for any injury that may have resulted." ( Ibid. )


"[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity. Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for *651which liability is asserted." ( Park, supra, 2 Cal.5th at p. 1060, 217 Cal.Rptr.3d 130, 393 P.3d 905.) *501In this case, unlike Park , The Times's decision not to publish plaintiff's work in the future is the "wrong" plaintiff complains of in his <mask> and related employment claims. It is equally clear that a newspaper's decision to publish or not to publish a contributor's work is protected by the First Amendment.


“In consideration of employment with Bear Stearns, all employees hereby agree [ ] to submit to final and binding arbitration of any and all claims, controversies of any nature whatsoever and disputes arising out of or related in any way to their employment at Bear Stearns, including by way of employment, cessation of employment.... Said arbitration shall be conducted only by a panel of the New York Stock Exchange, Inc., American Stock Exchange, or th[e] National Association of Securities Dealers, Inc., as Bear Stearns[ ] in its sole discretion shall elect. . ..” The underlying arbitration arises out of Bear Stearns’ allegedly <mask> of Fulco from his position as a relationship manager in Bear Stearns’ Global Clearing Services Department where he earned approximately $100,000 per year. *825In late 2003, various regulatory authorities began investigating Bear Stearns’ involvement with certain clients who were allegedly market-timing mutual funds and making trades after market hours. In February 2004, Fulco was fired for his asserted failure to follow “[f]irm policy” related to mutual fund trading.


In Armendariz , the California Supreme Court held mandatory employment contracts that require employees to waive their rights to bring statutory discrimination claims under FEHA and related claims for <mask> in violation of public policy are unlawful. ( Armendariz, supra, 24 Cal.4th at pp. 100-101, 99 Cal.Rptr.2d 745, 6 P.3d 669.) "[A]n arbitration agreement cannot be made to serve as a vehicle for the waiver of statutory rights created by the FEHA." ( Id. at p. 101, 99 Cal.Rptr.2d 745, 6 P.3d 669.)


This is an action for money damages arising out of the alleged <mask> of plaintiff Leticia C. Rojas’ employment as an associate at defendant Debevoise & Plimpton (Debevoise), a law partnership. The individual defendants are two current Debevoise partners, Barry Mills and Edward Schallert, and a former Debevoise partner, Mario Baeza. The complaint purports to state two causes of action: breach of employment relationship (first cause of action) and defamation (second cause of action).


In response to defendant's assertedly undisputed fact that "To make her complaint, plaintiff relied on information she received in connection with preparing [defendant's] tax returns and she could not have made her complaint without relying on that information," plaintiff admitted that she relied on unprivileged information she received in connection with preparing the tax returns, but responded further that her "<mask> case is not dependent upon introduction into evidence of privileged tax returns or privileged information that is an integral part of a tax return; rather it is dependent upon non-privileged communications with TFE management and the BOE."


The judgment in B261165 is reversed. On appeal, plaintiff has challenged the court's ruling on only four of his eight causes of action. The *206court shall enter an order granting DHE's motion for summary adjudication on the causes of action plaintiff has abandoned: (1) failure to provide reasonable accommodation, (2) failure to engage in good faith interactive process, (3) hostile work environment, and (4) failure to prevent harassment. The court's order shall deny summary adjudication on the remaining causes of action: (1) disability discrimination, (2) failure to prevent discrimination, (3) retaliation, and (4) <mask> in violation of public policy. The order denying the motion to tax costs in B262524 is reversed. Plaintiff shall recover his costs on appeal.


Based on these allegations, Saheli asserts nine causes of action against Defendants: (1) retaliation in violation of Health and Safety Code section 1278.5 ; (2) violation of the Ralph Act ( § 51.7 ); (3) violation of the Bane Act ( § 52.1 ); (4) sexual harassment (§ 51.9); (5) retaliatory <mask> ( Lab. Code, § 1102.5 ); (6) wrongful termination in violation of fundamental public policy; (7) gender discrimination and harassment under the Fair Employment and Housing Act (FEHA) ( Gov. Code, § 12900 et seq. ); (8) national origin discrimination and harassment under the FEHA; and (9) retaliation under the FEHA.


For over 20 years, plaintiff Orlando Nakai (Orlando1 ) was employed by Friendship House Association of American Indians, Inc. (Friendship House), a drug and alcohol rehabilitation program providing treatment services to Native Americans. His employment was terminated by the program's CEO, who also happened to be his mother-in-law, after his wife informed the CEO that Orlando had a gun and was angry at Friendship House employees and she had obtained a restraining order. Orlando then filed this action for <mask>, claiming discrimination on the basis of his marital status and that Friendship House had failed to conduct a reasonable investigation prior to discharging him. The trial court granted summary judgment in favor of defendants, ruling Orlando had failed to establish a prima facie case of marital status discrimination and failed to demonstrate his employer had a duty to investigate. We affirm.


Odebrecht has asserted that Mora's alleged cause of action for retaliatory discharge and <mask> has no basis in the law. See TEX. R. CIV. P. 91a.1. Mora has alleged that he was "wrongfully terminated" by Odebrecht and that he was "discriminated against" under Chapter 451 of the Texas Labor Code. On original submission, we concluded that Mora's own allegations, taken as true, triggered a "clear legal bar" to his claim because the at-will employment doctrine barred Mora's claims for retaliatory discharge. See In re Odebrecht Constr., Inc. , No. 13-17-00289-CV, 2017 WL 3484526, at *5. We concluded that, examined liberally, Mora's first amended petition did not allege any facts that would support a conclusion that Odebrecht's conduct regarding Mora fell within any of the exceptions to the employment-at-will doctrine contained in labor code section 451.001. See id.


Ramos filed her complaint asserting various causes of action against Winston for sex discrimination, retaliation, violation of California's Equal Pay Act ( Lab. Code, § 1197.5 ), and <mask> in violation of public policy. The following facts are taken from the allegations of the complaint and declarations filed in support of and opposition to Winston's motion to compel arbitration.


There was no obligation on the part of the defendant Kornella to keep either contract in force. This is particularly true as to the contract with the defendant Newton since plaintiff’s contract with the defendant Kornella, neither by its provisions nor by virtue of the complaint allegations, is made to rest on continuation of the contract with the defendant Newton, but rather upon sales of pile fabric made by the defendant Kornella, without regard to the source of manufacture. Plaintiff insists his claim rests in prima facie tort. The relief sought sounds in equity whereas the remedy pertains solely to temporal damage. It appears from the contract that it is one at will and not to be altered save in writing and that plaintiff’s damage is fully fixed at the date of its breach. Even if, as contended, plaintiff’s contract ran for a period beyond the alleged <mask>, he has failed to allege a sufficient cause in prima facie tort. It is his contention that his damage was cut off by virtue of the termination of the contract between the defendants. Yet, in prima facie tort the act which it is claimed was done to inflict injury must result from unmixed motive to inflict injury and without justification. Where there is also legitimate purpose there is no liability. Acts done in furtherance of its business from whatever motive will not subject the defendant Newton to liability for prima facie tort. (Beardsley v. Kilmer, 236 N. Y. 80.)


Plaintiff further argues that it is entitled to $148,533, plus interest from March 16, 2007, in lost profits due to its <mask> since the contract states that this amount would have been its profit had it been permitted to fully perform. In opposition, defendants argue that plaintiffs damages, if any, are limited to the work completed and approved by CPC’s engineer under the amended terms of the contract which provide:


Appellants also contend in their first point on appeal that the court erred by not correcting or modifying the award due to an evident mathematical miscalculation or an evident mistake. Goldtrap contends that the arbitrator erred by not granting him over $30,000 in unpaid salary. However, Goldtrap's right to any compensation by appellees was abandoned prior to the hearing due to appellants' withdrawal of the breach-of-contract claim in which unpaid salary for Goldtrap was sought. The only claim presented to the arbitrator was for <mask> and there was no evidence that Goldtrap sought any right to monetary damages under this complaint. Therefore, this issue is not properly before this court.


1. <mask> in violation of public policy. ( Lab. Code, §§ 923 [employees may organize], 6310 [retaliation for an OSHA complaint], 6400 [duty to provide a safe work environment], 1102.5 [whistleblower protection].) 2. Unpaid wages under the wage order. ( Cal. Code Regs, tit. 8, § 11090.) 3. Failure to pay minimum wage. ( Lab. Code, §§ 1182.12 [minimum wage], 1194 [right of action], 1194.2 [liquidated damages], 1197 [duty to pay minimum wage].) 4. Failure to pay overtime. ( Lab. Code, §§ 510 [overtime], 1194 [right of action].) *5645. Failure to provide meal and rest breaks. ( Lab. Code, §§ 226.7 [rest periods], 512 [meal breaks].) 6. Failure to furnish accurate wage statements. ( Lab. Code, §§ 226 [wage statements], 226.3 [civil penalties], 2699 [PAGA penalties].) 7. Waiting time penalties. ( Lab. Code, §§ 201 -202 [wages and leave due upon departure], 203 [penalties].) 8. Unfair competition (UCL), based on the foregoing violations. ( Bus. & Prof. Code, § 17200 et seq. ; Lab. Code, § 2699 [PAGA penalties].) Defendants moved for summary judgment. Relying on Borello, supra, 48 Cal.3d 341, 256 Cal.Rptr. 543, 769 P.2d 399, they argued all eight causes of action failed because Garcia was an independent contractor, *365not an employee. Erik's declaration established various ways in which BTG did not exercise control over drivers. Garcia and others remained free to set their hours, use the car for personal errands, decline the optional radio dispatch service, keep their collected fares, enter into sublease agreements, hold other jobs, advertise services in their own names, etc.


As Miller points out, this appeal centers on whether the ALJ's order denying Miller's request for TTD benefits satisfied the first element of collateral estoppel. Miller contends this "preliminary, non-binding and non-appealable ruling" did not "conclusively determine" the issue of why Miller was discharged. KVC says the dispositive issue in the <mask> case was the same issue the ALJ determined in the workers compensation case—whether Miller was terminated for cause—and thus Miller was prohibited from relitigating the issue.


Olinick v. BMG Entertainment (2006) 138 Cal.App.4th 1286, 42 Cal.Rptr.3d 268, illustrates the point. There, Olinick sued his New York-based employer in Los Angeles Superior Court for <mask> under FEHA. ( Id. at 1292, 42 Cal.Rptr.3d 268.) His employer moved to stay or dismiss the case on the ground of inconvenient forum. ( Ibid. ) The court expressly rejected Olinick's argument that a clause requiring him to litigate FEHA causes of action in New York was unenforceable and held that "[e]mployment discrimination claims have been held subject to forum selection clauses, provided the selected forum affords an adequate remedy." ( Id. at p. 1301, 42 Cal.Rptr.3d 268, italics omitted.) The court found no merit in Olinick's contention that the forum selection clause was unenforceable on public policy grounds, noting "FEHA has no express prohibition on parties selecting a forum ... other than California's." ( Id. at p. 1304, 42 Cal.Rptr.3d 268.)


B. The Opposition White opposed the motion. He argued that Smule’s summary judgment motion missed the point because he did not allege a claim for <mask>. “The gravamen of [White’s] Section 970 claim is that specific representations were made to him as to the nature, kind and character of the work he was being hired to perform, and the length of time the work would require.” White contended that a jury could reasonably find that Smule never intended to have Plaintiff perform the job functions represented to him during his recruitment, and, instead, Smule intended to transfer these functions to a Bulgaria office that it had opened. White did not dispute that he was an at-will employee, that Shang and Steinwedel had not represented otherwise, or that he read and understood his employment documents. White conceded that Shang and Steinwedel did not tell him that he could be terminated for cause only or promise him he would remain employed through a date when his stock options would vest. White disputed that Shang had not committed or represented that White’s employment would be long-term or for a specific duration. His response to Smule’s undisputed material fact on this point stated, “Disputed. The projects, work and goals Shang wanted Plaintiff to complete were by th[eir] nature long term. Shang emphasized to Plaintiff that the work he needed Plaintiff to perform was essential to the long-term growth of Defendant. Plaintiff was not interested in short term projects


BCB and UFT cite the same standard for a breach of the duty of fair representation. Based on that standard, BCB concluded that UFT’s actions regarding Morales’ appeal of his step II termination were arbitrary. BCB found that UFT’s conduct was arbitrary because UFT failed to provide any explanation for its failure to submit a timely appeal from the step II determination. BCB noted that UFT’s actions were also arbitrary, in part, because UFT ignored a <mask> claim that had potential merit. BCB suggests that Morales’ claim might be meritorious because Morales never faced criminal charges and the letter from DeGioia’s niece evidences a strong relationship between DeGioia and Morales. BCB concluded that it could not supply a reason for UFT’s inaction *823when no explanation was provided by UFT. BCB further found that UFT had an affirmative duty to inform Morales whether or not it would pursue a grievance on his behalf once UFT represented Morales during the first two stages of the grievance process.


On November 6, 2013 Patrice Honeycutt filed this action against her former employer, JP Morgan Chase Bank, alleging causes of action for discrimination, retaliation, <mask>, and related *258claims. On March 7, 2014 the trial court granted Chase's petition to compel arbitration of Honeycutt's complaint. *916On July 17, 2014 the American Arbitration Association (AAA), a dispute resolution provider organization,1 notified the parties the AAA had appointed a retired judge to serve as the arbitrator. The notice of appointment included a copy of the AAA's disclosure worksheet, completed by the arbitrator, which instructed the arbitrator: "It is most important that the parties have complete confidence in the arbitrator's impartiality. Therefore, please disclose any past or present relationship with the parties, their counsel, or potential witnesses, direct or indirect, whether financial, professional, and social or of any other kind. This is a continuing obligation throughout your service on the case and should any additional direct or indirect contact arise during the course of the arbitration ... it must also be disclosed. Any doubts should be resolved in favor of disclosure. If you are aware of direct or indirect contact with such individuals, please describe it below. Failure to make timely disclosures may forfeit your ability to collect compensation. The AAA will call the disclosure to the attention of the parties."


[t]he general rule in Texas is that absent a specific agreement to the contrary, employment may be terminated by either the employer or the employee at will, for good cause, bad cause, or no cause at all. In Sabine Pilot Service, Inc. v. Hauck , the Texas Supreme Court recognized a "narrow exception" to the employment-at-will doctrine covering "only the discharge of an employee for the sole reason that the employee refused to perform an illegal act." However, Sabine Pilot involved only non-governmental employees, and Texas courts have declined to extend the Sabine Pilot exception to governmental employees. Instead, courts have held that a governmental entity retains its sovereign immunity when an employee raises a common law Sabine Pilot cause of action. Id. (internal citations omitted). We then noted that the governmental employee had "not directed us to any authority establishing that governmental immunity is waived for a <mask> claim under Sabine Pilot ," and we concluded that the government employee failed to plead facts affirmatively showing the trial court's jurisdiction for his claim of wrongful termination for refusal to perform an illegal act. Id.


Plaintiff Shawn Terris appeals a summary judgment in favor of her former employer, defendant County of Santa Barbara (County), in her <mask> action. We conclude, among other things, that: 1) Terris did not exhaust her administrative remedies on her claims that the County terminated her job to discriminate against her in violation of sections 1101, 1102, and 1102.5; [ [2) there are no triable issues of fact on Terris's claim that she was terminated because of her sexual orientation ( Gov. Code, § 12940, subd. (a), Fair Employment and Housing Act (FEHA) );] ] but 3) the trial court erred by awarding the County costs on the FEHA cause of action. We affirm in part and reverse in part.


Petitioner did not make a <mask> claim; his claims were for defamation and intentional infliction of emotional distress. Although the body of the award referred to the defamatory character of the U5 form, the claim for defamation was dismissed. On the other hand, the arbitrators made an award of $182,500 without explaining on which claim; this lack of explanation creates an ambiguity that must be explained by the arbitrators. They also made an award of $15,000 on the counterclaim without the benefit of explanation. In sum, the arbitrators failed to address and dispose of the issues raised by the parties or make specific findings of fact or credibility.


At the hearing before the ALJ, the Court submitted 11 exhibits and the testimony of one witness-Sheran Morton, the Assistant Court Executive Officer. Two of these exhibits-the Court's personnel manual and its table of contents-were submitted by the Court and the Union as joint exhibits. The Court's own exhibits *595were (1) the Court's mission statement; (2) materials from the "PJ/CEO Roundtable: Trial Court Leadership for Ethical Excellence," which included a copy of the Code of Ethics for the Court Employees of California; (3) floor plans for its 11 facilities; (4) job descriptions for its series of office assistants; (5) a list of <mask> and other employment cases filed from January 1, 2011, to March 2, 2011, and filed during the 2010 calendar year (24 and 140 cases, respectively); (6) a list of 146 case titles involving well-known entities as parties; (7) the floor plan and photographs depicting level five of the B.F. Sisk Building;8 (8) the floor plan and photographs depicting level four of the B.F. Sisk Building;9 and (9) the floor plan and photographs for the fourth floor of the main courthouse.


Indeed, compensation awards often depend on whether plaintiffs seek unpaid wages or back pay. For example, back pay *189awards “cover[ ] periods that [undocumented workers] were not working due to wrongful termination” (Oro, 10 Misc 3d at 84). Unpaid wages, on the other hand, involve “pay[ment] to undocumented aliens wages for work actually performed” (see id. at 86). “To condone dismissal of actions for wages earned but not paid, regardless of the legal theory employed, on the ground that such labor contracts are ‘illegal,’ would thus directly contravene the public policy of the State of New York and of the United States government.” (Garcia, 11 Misc 3d at 3; see also Gomez v Falco, 6 Misc 3d 5, 6 [App Term, 2d Dept 2004] [“While back pay awards to undocumented workers for periods of unemployment, e.g., <mask> for union activity, are barred by federal immigration law, the award in the present case properly represents payment due and owing for work actually performed” (citations omitted)].) In Ulloa v Al’s All Tree Serv., however, the court dismissed part of an action for unpaid wages but only because the undocumented worker sought compensation for overtime and because the court assumed that all contracts with undocumented workers, despite the absence of fraud, were “tainted with illegality.” (Ulloa v Al’s All Tree Serv., 2 Misc 3d 262, 264 [Nassau Dist Ct 2003].) The court did allow the worker’s claim for unpaid minimum wages. (Id.)


Wilmer J. Patlow, J. Defendant DePaul Mental Health Services, Inc. (hereinafter DePaul) moves for summary judgment pursuant to CPLR 3212 dismissing plaintiff Lois Kern’s remaining cause of action against it. By prior order dated June 26, 1986 and decision dated June 3, 1986 plaintiffs causes of action for abusive discharge and/or <mask> of employment and for libel and slander were dismissed pursuant to CPLR 3211 by the Honorable John Finnerty, Acting Supreme Court Justice. *971The remaining cause of action, to which the present motion is addressed, alleges a retaliatory discharge in violation of section 740 of the Labor Law.


Galvan appeals, arguing there are triable issues of material fact as to each of her causes of action and her claims for declaratory relief (discrimination), injunctive relief, and punitive damages. We agree in part. We will reverse the judgment and direct the trial court to vacate its order granting summary judgment and enter a new order granting summary adjudication of Galvan's retaliation and negligent supervision causes of action and her claims for declaratory relief (retaliation) and punitive damages, but denying summary adjudication of her discrimination, harassment, and failure to take necessary steps to prevent discrimination and harassment, and <mask> in violation of public policy causes of action, and her claims for declaratory relief (discrimination *21) and injunctive relief.4


There was significant overlap between Salomone’s personal counterclaims in the WPP action and the counterclaims he made on behalf of the stockholders/sellers. There were seven counterclaims in all. The first counterclaim was Salomone’s claim for <mask> of his employment (termination claim). Part of the termination claim was based upon incorrect calculation of the OPAT shortfall. Movants contend that, over the objections of the other stockholders, Salomone chose to litigate a second lawsuit by the purchaser for a “Working Capital Shortfall,” under article II of the APA, which required the seller to pay the purchaser if working capital was less than $1,250,000. Movants say that Salomone employed this strategy because the working capital shortfall was based on the same accounting as the OPAT shortfall and would have resulted in dismissal of the termination claim. Six of the seven counterclaims involved the same allegations as the termination claim, i.e., miscalculation of OPAT, interfering with Salomone’s management of the business and not permitting Salomone to report to the CEO.3


The arbitration hearing took place on November 14, 2015.1 Prior to the commencement of the hearing, appellants withdrew from consideration all claims other than the claim for <mask>. In the arbitration award dated January 10, 2017, the arbitrator noted that appellants' withdrawal of the claims was the equivalent of a nonsuit in state court. The award stated in pertinent part:


Regarding Inspectronic’s claim for lost profits based on the change orders issued in connection with the remaining items on the subcontract, as noted Bidco completed not only the base items but also every change order. The court concludes, contrary to Gottlieb’s contentions, that Inspectronic may recover lost profits for the change order work, which it would have completed but for Gottlieb’s <mask> of the subcontract. The damages a party may recover for breach are those that ordinarily and naturally flow from the breach, are proximately caused by the breach, are certain or capable of ascertainment, and are not remote, speculative or contingent (see Fruition, Inc. v Rhoda Lee, Inc., 1 AD3d 124, 125 [1st Dept 2003]). In determining what was contemplated by the parties at the time the agreement was entered into, the court should consider the nature, purpose, and circumstances of the contract (see Bi-Economy Mkt., Inc. v Harleysville Ins. Co. of N.Y., 10 NY3d 187, 193 [2008]).


Even though an article 78 proceeding is technically permissible, Ms. Goldman’s claims are better resolved in a plenary action, where discovery is readily available and where full legal and equitable relief is available under the traditional rules of contract law and the sections of the Human Rights Law governing age discrimination. As the Court of Appeals recognized in Abiele Contr. v New York City School Constr. Auth. (91 NY2d 1, 7 [1997]), “there are circumstances in which the same [party’s] action may constitute a violation of contract and also be of a character that would support a claim for article 78 relief’ (quoting Matter of Goodstein Constr. Corp. v Gliedman, 117 AD2d 170, 176 [1986, Sandler, J.P., concurring], affd 69 NY2d 930 [1987]). In so stating, the Abiele court rejected the defense argument that only article 78 relief was available and declined to dismiss the contractor’s plenary action against the Construction Authority alleging <mask> of his contract. (See also Mitchell v Board of Educ. of City School Dist. of City of N.Y., 15 AD3d 279 [1st Dept 2005] [rejecting the claim that action for breach of stipulation settling disciplinary proceeding was barred by the four-month statute of limitations under article 78, finding that claim for lost pay could properly be resolved under the traditional rules of contract law].)


On October 27, 2015, appellant, an Hispanic man of Mexican heritage, filed a complaint for damages alleging causes of action against LACCD for (1) employment discrimination (failure to grant tenure-race) in violation of the FEHA; (2) employment discrimination (termination-race) in violation of the FEHA; and (3) discrimination [in] violation of public policy.2 On January 13, 2016, appellant filed a first amended complaint (FAC) alleging a single *447cause of action for employment discrimination (termination-race) in violation of the FEHA. In the cause of action for <mask>, the FAC alleged that "LACCD has engaged in endemic race based employment discrimination, affecting Plaintiff, and resulting in his denial of tenure." It further alleged that "LACCD has engaged in endemic race based employment discrimination, affecting Plaintiff, and resulting in his termination from employment."


*477Swimming fired Schubert in 2010, Foster refused to represent him in a <mask> lawsuit against USA Swimming because he did not want to have a negative relationship with USA Swimming in the future. Foster told Schubert at that time that he would have a conflict of interest in suing USA Swimming. Knutson testified that Foster never told her that he represented Schubert in 2006, or that he declined to represent Schubert against USA Swimming because he felt there was a conflict of interest due to his relationships with people within USA Swimming. For his part, Foster testified he told both Knutson and Morgenstein that if Knutson could not settle the dispute with USA Swimming, Foster would help her find another attorney to bring a lawsuit on her behalf.