| Klein v Metropolitan Child Servs., Inc. |
| 2012 NY Slip Op 07636 [100 AD3d 708] |
| November 14, 2012 |
| Appellate Division, Second Department |
| Lisa Klein et al., Respondents, v Metropolitan ChildServices, Inc., et al., Appellants. |
—[*1] Andrew J. Schatkin, Jericho, N.Y., for respondents.
In an action, inter alia, to recover damages for violation of Labor Law § 740 andintentional infliction of emotional distress, the defendants appeal, as limited by their brief, fromso much of an order of the Supreme Court, Kings County (Vaughan, J.), dated March 23, 2011,as denied their motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to statea cause of action.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thedefendants' motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint is granted.
The plaintiff Lisa Klein (hereinafter the plaintiff), who was formerly employed as theDirector of the defendant Metropolitan Child Services, Inc./Vernon Avenue Children's School,LLC (hereinafter Metropolitan), commenced this action, inter alia, to recover damages forviolation of Labor Law § 740, alleging that she was unlawfully terminated from herposition in retaliation for "reporting illegal and incorrect activities on the part of [the defendantsMichael Koffler and Kevin McCarthy]," who are, respectively, the Chief Executive Officer andChief Financial Officer of Metropolitan. The plaintiff also asserted a cause of action allegingintentional infliction of emotional distress based upon her allegation that she "suffered extremeand grievous mental distress [as a result of] the extreme and outrageous behavior of" Koffler andMcCarthy. The plaintiff Menachem Klein asserted a derivative cause of action seeking damagesfor the alleged loss of companionship and services of his wife. The defendants' motion pursuantto CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action was denied bythe Supreme Court without explanation.
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]).There must be an actual violation of a law, rule, or regulation. An employee's "good faith,reasonable belief that a violation occurred is insufficient" to satisfy the statute (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 [*2]Science Ctr. at Brooklyn, 288AD2d 350 [2001]). Additionally, the protection afforded by Labor Law § 740 (2) "istriggered only by a violation of a law, rule or regulation that creates and presents a substantialand specific danger to the public health and safety" (Remba v Federation Empl. & GuidanceServ., 76 NY2d 801, 802 [1990]; see Pipia v Nassau County, 34 AD3d 664, 665 [2006];Nadkarni v North Shore-Long Is. Jewish Health Sys., 21 AD3d at 355; Khan v StateUniv. 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, although the complaint must be given the benefit of all favorable inferences at thisstage in the proceedings (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Morales v Copy Right, Inc., 28 AD3d440 [2006]), it nevertheless fails to state a cause of action. Other than the conclusoryallegation that "[by] Head Start Law, Mr. Koffler is not allowed to engage in nepotism," thecomplaint does not cite to any law, rule, or regulation which allegedly was actually violated bythe defendants. Moreover, the complaint makes no allegation that the defendants' conductconstituted a substantial and specific danger to the public health or safety (see Hughes vGibson Courier Servs. Corp., 218 AD2d 684, 684-685 [1995]; Lamagna v New YorkState Assn. for Help of Retarded Children, 158 AD2d 588, 589 [1990]). Indeed, inasmuch asthe complained of conduct related mainly to alleged financial improprieties, it does not "satisfythe element of a threat to public health and safety and, thus, cannot sustain a cause of actionalleging a violation of Labor Law § 740" (Tomo v Episcopal Health Servs., Inc., 85 AD3d 766, 768 [2011];see Remba v Federation Empl. & Guidance Serv., 76 NY2d at 802; Pipia v NassauCounty, 34 AD3d at 666; Smith v Angel Guardian Home, 263 AD2d 476 [1999];Kaganowicz v Booth Mem. Med. Ctr., 215 AD2d 530, 531 [1995]; Lamagna v NewYork State Assn. for Help of Retarded Children, 158 AD2d at 589).
Similarly, the complaint does not state a cause of action to recover damages for intentionalinfliction of emotional distress. The elements of intentional infliction of emotional distress are(1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantiallikelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress(see Howell v New York Post Co., 81 NY2d 115, 121 [1993]; Andrews v Bruk,220 AD2d 376, 376 [1995]). The subject conduct must be " 'so outrageous in character, and soextreme in degree, as to go beyond all possible bounds of decency, and to be regarded asatrocious, and utterly intolerable in a civilized community' " (Murphy v American HomeProds. Corp., 58 NY2d 293, 303 [1983], quoting Restatement [Second] of Torts § 46,Comment d; see Andrews v Bruk, 220 AD2d at 376-377). Furthermore,conclusory assertions are insufficient to set forth a cause of action sounding in the intentionalinfliction of emotional distress (seeWelsh v Haven Manor Health Care Ctr., 15 AD3d 572 [2005]).
Here, the cause of action alleging intentional infliction of emotional distress states little morethan the conclusion that "[plaintiff] suffered extreme and grievous mental distress [as a result of]the extreme and outrageous behavior of the defendants." Moreover, even accepting as true theallegations in the complaint regarding the defendants' conduct (see Leon v Martinez, 84NY2d at 87-88; McGuire v SterlingDoubleday Enters., L.P., 19 AD3d 660, 661 [2005]), such conduct was not "sooutrageous in character, and so extreme in degree" as to qualify as intentional infliction ofemotional distress (see Murphy v American Home Prods. Corp., 58 NY2d at 303;Andrews v Bruk, 220 AD2d at 376-377; see also Welsh v Haven Manor Health CareCtr., 15 AD3d at 572).
With respect to the derivative cause of action asserted on behalf of the plaintiff's husband,Menachem Klein, we note that a spouse's cause of action to recover for loss of services orconsortium does not exist independent of the injured spouse's right to maintain an action forinjuries sustained (see Liff v Schildkrout, 49 NY2d 622, 632 [1980]). Consequently, thederivative cause of action cannot survive the dismissal of the main claims for damages (seee.g. Cruz v City of New York, 302 AD2d 553, 554 [2003]; Belanoff v Grayson, 98AD2d 353, 358 [1984]). Accordingly, the Supreme Court should have granted the defendants'motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint. Eng, P.J., Rivera, Hall andSgroi, JJ., concur.