| Tomo v Episcopal Health Servs., Inc. |
| 2011 NY Slip Op 05047 [85 AD3d 766] |
| June 7, 2011 |
| Appellate Division, Second Department |
| Ronald Tomo, Respondent, v Episcopal Health Services,Inc., et al., Appellants. |
—[*1] Leeds Morelli & Brown, P.C., Carle Place, N.Y. (Thomas Ricotta of counsel), forrespondent.
In an action to recover damages for retaliatory personnel action in violation of Labor Law§§ 740 and 741, the defendants appeal from so much of an order of the SupremeCourt, Nassau County (Mahon, J.), dated May 18, 2009, as denied those branches of their motionwhich were pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging a violation ofLabor Law § 740 and for an award of an attorney's fee and costs associated with litigatingthe causes of action alleging violations of Labor Law §§ 740 and 741.
Ordered that the order is modified, on the law, on the facts, and in the exercise of discretion,by (1) deleting the provision thereof denying that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging a violation of Labor Law§ 740, and substituting therefor a provision granting that branch of the motion, and (2)deleting the provision thereof denying that branch of the motion which was for an award of anattorney's fee and costs associated with litigating the cause of action alleging a violation of LaborLaw § 741, and substituting therefor a provision granting that branch of the motion; as somodified, the order is affirmed insofar as appealed from, with costs to the defendants, and thematter is remitted to the Supreme Court, Nassau County, for calculation of the award of anattorney's fee and costs associated with litigating the cause of action alleging a violation of LaborLaw § 741.
The plaintiff, the defendant hospital's chief information officer and chief security officer,complained to other members of the hospital's administration about the planned installation of anelectronic whiteboard and the failure to keep secure patient records that were awaiting shredding.The electronic whiteboard ultimately was not installed. The plaintiff commenced this actionasserting causes of action alleging violations of Labor Law §§ 740 and 741 againstthe hospital and Kirron Shares of America, Inc., a health care management and consulting firm,claiming retaliation in connection with his complaints about these practices. The defendantsmoved to dismiss the cause of action alleging a violation of Labor Law § 740 pursuant toCPLR 3211 (a) (7) and the cause of action alleging a violation of Labor Law § 741pursuant to CPLR 3211 (a) (1) and (7), and for an award of an attorney's fee and costs inconnection with [*2]litigating both causes of action. The SupremeCourt granted that branch of the motion which was to dismiss the cause of action alleging aviolation of Labor Law § 741 pursuant to CPLR 3211 (a) (7), and denied those branches ofthe defendants' motion which were to dismiss the cause of action alleging a violation of LaborLaw § 740 and for an award of an attorney's fee and costs. We modify.
Labor Law § 740 prohibits an employer from taking "any retaliatory personnel actionagainst an employee" who discloses to a supervisor or public body "an activity, policy or practiceof the employer that is in violation of law, rule or regulation which violation creates and presentsa substantial and specific danger to the public health or safety" (Labor Law § 740 [2] [a]).An employee's "good faith, reasonable belief that a violation occurred is insufficient" to satisfythe statute—instead, there must be an actual violation of a law, rule, or regulation (Nadkarni v North Shore-Long Is. JewishHealth Sys., 21 AD3d 354, 355 [2005]; see Bordell v General Elec. Co., 88NY2d 869, 871 [1996]; Berde v NorthShore-Long Is. Jewish Health Sys., Inc., 50 AD3d 834, 835 [2008]; Khan v StateUniv. of N.Y. Health Science Ctr. at Brooklyn, 288 AD2d 350 [2001]). Moreover, theprotection afforded by Labor Law § 740 (2) "is triggered only by a violation of a law, ruleor regulation that creates and presents a substantial and specific danger to the public health andsafety" (Remba v Federation Empl. & Guidance Serv., 76 NY2d 801, 802 [1990]; see Pipia v Nassau County, 34 AD3d664, 665 [2006]; Nadkarni v North Shore-Long Is. Jewish Health Sys., 21 AD3d at355; Khan v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 288 AD2d at 350;Easterson v Long Is. Jewish Med. Ctr., 156 AD2d 636, 637 [1989]).
Here, the plaintiff alleged that he complained about two policies or practices: the plannedinstallation of an electronic whiteboard and the failure to keep secure patient records that wereawaiting shredding. However, because the whiteboard was never installed, there was no actualviolation of any law, rule, or regulation arising from the installation, an element necessary tosustain a cause of action alleging a violation of Labor Law § 740 (see Nadkarni v NorthShore-Long Is. Jewish Health Sys., 21 AD3d at 355). Moreover, both practices about whichthe plaintiff complained related to the privacy of confidential information. Such allegationscannot satisfy the element of a threat to public health and safety and, thus, cannot sustain a causeof action alleging a violation of Labor Law § 740 (see Easterson v Long Is. JewishMed. Ctr., 156 AD2d at 637; compare Remba v Federation Empl. & Guidance Serv.,76 NY2d at 802; Cotrone vConsolidated Edison Co. of N.Y., Inc., 50 AD3d 354, 354-355 [2008]; Pipia vNassau County, 34 AD3d at 666; Peace v KRNH, Inc., 12 AD3d 914, 915 [2004]; Green vSaratoga A.R.C., 233 AD2d 821, 822-823 [1996]). Accordingly, the Supreme Court shouldhave granted that branch of the defendants' motion which was pursuant to CPLR 3211 (a) (7) todismiss the cause of action alleging a violation of Labor Law § 740.
Labor Law § 740 (6) provides that a court, in its discretion, may award an employer anattorney's fee and costs if it determines that the employee's action is "without basis in law or infact." Here, the Court of Appeals' opinion in Reddington v Staten Is. Univ. Hosp. (11 NY3d 80 [2008]), whichwas decided approximately five months before the plaintiff filed his complaint, made clear thatemployees such as the plaintiff who did not "actually supply health care services" did not qualifyfor the enhanced protections afforded by Labor Law § 741 (id. at 91).
Even if the plaintiff and his counsel were unaware of Reddington when the complaintwas filed, the plaintiff should have conceded that this cause of action was not viable in responseto the defendants' motion to dismiss, which cited this binding precedent, and which clearlydefeated his claim. Instead, in his opposition to the motion, the plaintiff continued to argue thathe was entitled to the protection of Labor Law § 741 despite the clear import ofReddington. In light of this recalcitrant refusal to bow to binding precedent, the SupremeCourt should have exercised its discretionary power under Labor Law § 740 (6) to awardthe defendants an attorney's fee and costs associated with litigating the cause of action alleging aviolation of Labor Law § 741 (compare Matter of Fenstermaker v Edgemont Union Free School Dist.,48 AD3d 564, 565 [2008]; Curcio v Hogan Coring & Sawing Corp., 303 AD2d 357,359 [2003]; see also Reddington v Staten Is. Univ. Hosp., 543 F3d 91, 94 [2008]). Incontrast, the plaintiff's argument in support of the cause of action alleging a violation of LaborLaw § 740, while ultimately unpersuasive, cannot be said to be so devoid of merit or to beunsupported by "a reasonable argument for an extension, modification, or reversal of existinglaw" so as to warrant the imposition of fees and costs (Dank v Sears Holding Mgt. Corp., 69 AD3d 557, 558 [2010]), norcan it reasonably be characterized as have been undertaken[*3]"primarily to delay or prolong the resolution of the litigation, or toharass or maliciously injure another" (id. at 558), or as having been "commenced orcontinued in bad faith" (Broich vNabisco, Inc., 2 AD3d 474, 475 [2003]). Accordingly, the defendants are not entitled toan award of an attorney's fee or statutory "court costs and disbursements" (Labor Law §740 [6]) associated with litigating the cause of action alleging a violation of Labor Law §740 (Dank v Sears Holding Mgt. Corp., 69 AD3d at 558; Glenn v Annunziata, 53 AD3d565, 566 [2008]; Broich v Nabisco, Inc., 2 AD3d at 475).
The defendants' remaining contention is without merit. Angiolillo, J.P., Florio, Belen andMiller, JJ., concur. [Prior Case History: 2009 NY Slip Op 31188(U).]