| Berde v North Shore-Long Is. Jewish Health Sys., Inc. |
| 2008 NY Slip Op 03409 [50 AD3d 834] |
| April 15, 2008 |
| Appellate Division, Second Department |
| Virginia Phylis Berde, Appellant, v North Shore-LongIsland Jewish Health System, Inc., Also Known as North Shore University Hospital at Plainview,Respondent. |
—[*1] Epstein Becker & Green, P.C., New York, N.Y. (Barbara A. Gross, Kevin R. Brady, andSteven Swirsky of counsel), for respondent.
In an action, inter alia, to recover damages for unlawful termination of employment inviolation of Labor Law § 740, the plaintiff appeals from an order of the Supreme Court,Nassau County (Phelan, J.), entered June 26, 2006, which denied her motion, inter alia, forsummary judgment on the issue of liability and granted the defendant's cross motion for summaryjudgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting thedefendant's cross motion for summary judgment dismissing the complaint and substitutingtherefor a provision denying the cross motion; as so modified, the order is affirmed, without costsor disbursements.
The plaintiff, a nurse manager formerly employed by the defendant, commenced this"whistleblower" action pursuant to Labor Law § 740, alleging that her employment wasunlawfully terminated in retaliation for her report to a member of the administrative staff thatsurgical instruments were not being sterilized properly and that nurses in the operating room hadbeen discouraged from reporting such instances. Subsequent to the termination, the State of NewYork [*2]Department of Health (hereinafter the DOH) conductedan investigation and determined that the defendant had not violated any applicable regulation.After extensive discovery, the parties each moved for summary judgment. The Supreme Courtdenied the plaintiff's motion and granted the defendant's cross motion. We modify.
Labor Law § 740 prohibits an employer from taking "any retaliatory personnel actionagainst an employee" who discloses to a supervisor "an activity, policy or practice of theemployer that is in violation of law, rule or regulation which violation creates and presents asubstantial and specific danger to the public health or safety." Commonly referred to as the"whistleblower's statute" (Mazzacone vCorlies Assoc., 21 AD3d 1066 [2005]), this section requires "proof of an actualviolation of law to sustain a cause of action" (Bordell v General Elec. Co., 88 NY2d 869,871 [1996]; see Nadkarni v NorthShore-Long Is. Jewish Health Sys., 21 AD3d 354, 355 [2005]). The plaintiff's"reasonable belief of a possible violation" is not sufficient (Bordell v General Elec. Co.,88 NY2d at 871; see Khan v State Univ. of N.Y. Health Science Ctr. at Brooklyn,288 AD2d 350, 351 [2001]).
Here, the plaintiff failed to adduce sufficient evidence that the defendant's activitiesconstituted a violation of law or regulation, and thus, the Supreme Court correctly denied hersummary judgment motion for failure to demonstrate her prima facie entitlement to judgment asa matter of law (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985];Mazzacone v Corlies Assoc., 21 AD3d at 1067). However, the defendant also failed toestablish its prima facie entitlement to summary judgment dismissing the complaint with respectto this issue.
Additionally, while the defendant established, prima facie, its statutory defense that theplaintiff's termination was "predicated upon grounds other than the employee's exercise of anyrights protected by [section 740]" (Labor Law § 740 [4] [c]), in opposition, the plaintiffraised a triable issue of fact. Accordingly, summary judgment in favor of the defendant on thisalternative ground was not warranted.
The plaintiff's remaining contentions are either improperly raised for the first time on appealor without merit. Rivera, J.P., Spolzino, Dillon and Balkin, JJ., concur. [See 12 Misc 3d1171(A), 2006 NY Slip Op 51143(U).]