| Carillo v Stony Brook Univ. |
| 2014 NY Slip Op 04889 [119 AD3d 508] |
| July 2, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Diane Carillo, Appellant, v Stony BrookUniversity et al., Respondents. |
Scott Michael Mishkin, P.C., Islandia, N.Y., for appellant.
Eric T. Schneiderman, Attorney General, New York, N.Y. (Richard P. Dearing andDavid Lawrence III of counsel), for respondents.
In an action to recover damages for violation of Labor Law § 740, theplaintiff appeals from an order of the Supreme Court, Suffolk County (Martin J.), datedMarch 18, 2013, which granted that branch of the defendants' motion which waspursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause ofaction.
Ordered that the order is reversed, on the law, with costs, and that branch of thedefendants' motion which was pursuant to CPLR 3211 (a) (7) to dismiss the complaintfor failure to state a cause of action is denied.
On a motion to dismiss pursuant to CPLR 3211 (a) (7) for failure to state a cause ofaction, the complaint must be construed liberally, the factual allegations deemed to betrue, and the nonmoving party must be given the benefit of all favorable inferences(see Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Hense v Baxter, 79 AD3d814 [2010]; Castaldi v 39Winfield Assoc., 30 AD3d 458 [2006]). A cause of action based upon LaborLaw § 740, commonly known as the "whistleblower statute," is available" 'to an employee who discloses or threatens to disclose an employer activity orpractice which (1) is in violation of a law, rule or regulation, and (2) creates a substantialand specific danger to the public health' " (Pipia v Nassau County, 34 AD3d 664, 665 [2006], quotingLamagna v New York State Assn. for Help of Retarded Children, 158 AD2d 588,589 [1990]; see Labor Law § 740 [2] [a]; Bordell v GeneralElec. Co., 88 NY2d 869 [1996]). "However, for pleading purposes, the complaintneed not specify the actual law, rule or regulation violated, although it must identify theparticular activities, policies or practices in which the employer allegedly engaged, sothat the complaint provides the employer with notice of the alleged complained-ofconduct" (Webb-Weber v Community Action for Human Servs., 23 NY3d 448, 453 [2014]).
Here, the complaint alleged, inter alia, that the plaintiff was terminated from herposition at Stony Brook University Medical Center after she complained to her superiorsabout certain conduct which the defendants engaged in or tolerated. It further alleged thatsuch conduct violated various laws or rules or regulations, and threatened public health(see Labor Law § 740 [2] [a]). Although the complaint did notspecify any particular law, rule or regulation which the [*2]defendants allegedly violated, it sufficiently identified thecomplained-of conduct by the defendants and provided them with notice thereof.Therefore, the failure to specify in the complaint any law, rule, or regulation was not fatalto pleading a viable cause of action pursuant to Labor Law § 740 (seeid.). Accordingly, that branch of the defendants' motion which was pursuant toCPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action shouldhave been denied. Rivera, J.P., Sgroi, Hinds-Radix and Maltese, JJ., concur.