| Luiso v Northern Westchester Hosp. Ctr. |
| 2009 NY Slip Op 06810 [65 AD3d 1296] |
| September 29, 2009 |
| Appellate Division, Second Department |
| Christina Luiso, Appellant, v Northern WestchesterHospital Center, Respondent. |
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In an action, inter alia, to recover damages for violation of Labor Law § 741, theplaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court,Westchester County (Donovan, J.), entered February 21, 2008, as granted the defendant's motionfor summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff, a registered nurse, worked at the defendant Northern Westchester HospitalCenter for approximately 27 years, most of the last two as a comanager of the nursing staff in theoperating room. In February 2004 the plaintiff was informed that her performance as acomanager was not satisfactory. In June 2004 she was directed to find a position in the hospitalother than in the operating room. The plaintiff found a new position at the hospital with the samesalary and benefits, but resigned within a few months. She subsequently commenced this actionunder the health care employees' "whistleblower" statute (see Labor Law § 741),alleging that she was removed from her position as comanager of the nursing staff in theoperating room in retaliation for having complained about certain practices relating to quality ofpatient care. After discovery was completed, the defendant moved for summary judgmentdismissing the complaint, and the Supreme Court granted the motion. We affirm.
Labor Law § 741 (2) (a) prohibits retaliatory action against covered employees whodisclose or threaten to disclose a "policy or practice of the employer or agent that the employee,in good faith, reasonably believes constitutes improper quality of patient care" (seeLabor Law § 741 [1] [d]; see Reddington v Staten Is. Univ. Hosp., 11 NY3d 80,92 [2008]; Deshpande v TJH Med. Servs., P.C., 52 AD3d 648, 650 [2008]). " 'Improperquality of patient care' means, with respect to patient care, any practice, procedure, action orfailure to act of an employer which violates any law, rule, regulation or declaratory rulingadopted pursuant to law, where such violation relates to matters which may present a substantialand specific danger to public health or safety or a significant threat to the health of a specificpatient" (Labor Law § 741 [1] [d]). The statute, however, also provides that "it shall be adefense that the personnel action was predicated upon grounds other than the employee'sexercise of any rights protected by this section" (Labor Law § 741 [5]).
In support of its motion, the defendant established its prima facie entitlement to judgment asa matter of law. The defendant established prima facie that the violations alleged by the plaintiffwere not protected by the statute because she failed and was unable to cite any "law, rule,regulation or declaratory ruling adopted pursuant to law" (Labor Law § 741 [1] [d]) thatshe "in good faith, reasonably believe[d]" to have been violated (Labor Law § 741 [2] [a];see Pipia v Nassau County, 34 AD3d 664, 666 [2006]). In any event, the defendantdemonstrated that its decision to transfer the plaintiff out of her management position in theoperating room, without any diminution in pay or benefits, was predicated on her performance asa manager, rather than on any complaints she may have made about the quality of care (seeLabor Law § 741 [5]). In response, the plaintiff failed to raise a triable issue of fact.Her opposition papers, which contradicted her deposition testimony and handwritten notes,raised only feigned issues of fact and were properly disregarded by the Supreme Court (seeSherman-Schiffman v Costco Wholesale, Inc., 63 AD3d 1031, 1032 [2009]; Hunt vMeyers, 63 AD3d 685, 685-686 [2009]; Hughes-Berg v Mueller, 50 AD3d 856, 858[2008]). In any event, those submissions acknowledged the plaintiff's refusal to support certainmanagement policies and requests unrelated to the subject of the quality of patient care (seeLabor Law § 741 [5]). Fisher, J.P., Balkin, Hall and Austin, JJ., concur.