Doerr, J. (dissenting). I agree with the majority’s conclusion, implicit in the decision, that principles of res judicata do not bar plaintiff’s amended complaint. Plaintiff’s wrongful discharge claims were not dismissed on the merits but, rather, *1011were dismissed based upon their failure to state a valid cause of action under New York law. Consequently, the dismissal should not be given res judicata effect.
I disagree with the majority’s conclusion, however, that plaintiff’s amended complaint, alleging a violation of Labor Law § 740, the so-called "whistle-blower statute”, is time-barred. In my view, plaintiff’s Labor Law claim relates back to the original complaint for Statute of Limitations purposes. In fact, defendant admits in its brief that plaintiff’s Labor Law claim and wrongful discharge claim are based upon the same transaction and that the "same foundation facts serve as a predicate for both actions.” Plaintiff merely asserts a different theory of liability predicated essentially upon the same facts (see, Matter of Smith v Board of Educ., 104 AD2d 445, 447-448).
Defendant’s argument that the relation-back doctrine cannot apply here, because plaintiff’s wrongful discharge causes of action were dismissed, is without merit. The cause of action alleged in the amended complaint relates back to a cause of action alleged in the original pleading (see, CPLR 203 [e]) and, in my view, the subsequent dismissal of that cause of action is of no moment.
I further conclude that the allegations in the amended complaint that nursing home patients were not being kept clean, were not provided with adequate supervision on the night shift, and had their medications mishandled, sufficiently assert a danger to public health and safety (cf., Kern v DePaul Mental Health Servs., 152 AD2d 957, lv denied 74 NY2d 615 [alleged violations involved a single patient]). (Appeal from Order of Supreme Court, Erie County, Doyle, J. — Dismiss Complaint.) Present — Boomer, J. P., Pine, Lawton, Davis and Doerr, JJ.