| Fough v August Aichhorn Ctr. for Adolescent Residential Care,Inc. |
| 2016 NY Slip Op 03469 [139 AD3d 665] |
| May 4, 2016 |
| Appellate Division, Second Department |
[*1]
| Leonie Fough, Appellant, v August AichhornCenter for Adolescent Residential Care, Inc., et al.,Respondents. |
Maduegbuna Cooper, LLP, New York, NY (Samuel O. Maduegbuna and WilliamCowles of counsel), for appellant.
Jackson Lewis P.C., New York, NY (Clifford R. Atlas and Suzanne E. Peters ofcounsel), for respondents.
In an action, inter alia, to recover damages for retaliatory personnel action inviolation of Labor Law § 740, the plaintiff appeals from an order of theSupreme Court, Kings County (Bayne, J.), dated April 23, 2014, which granted thedefendants' motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint and deniedher cross motion pursuant to CPLR 3025 (b) for leave to amend the complaint.
Ordered that the order is reversed, on the law and in the exercise of discretion, withcosts, the defendants' motion pursuant to CPLR 3211 (a) (7) to dismiss the complaint isdenied, and the plaintiff's cross motion pursuant to CPLR 3025 (b) for leave to amendthe complaint is granted.
In July 2013, the plaintiff, a registered nurse, allegedly was discharged from herposition as Head of Nursing at the Brooklyn facility of the defendant August AichhornCenter for Adolescent Residential Care, Inc. (hereinafter AAC). She commenced thisaction about three months later against AAC, its owner, and various other individuals,asserting a cause of action alleging unlawful termination in violation of Labor Law§ 740. The defendants moved, pre-answer, to dismiss the complaintpursuant to CPLR 3211 (a) (7), and the plaintiff cross-moved pursuant to CPLR 3025 (b)for leave to amend the complaint, inter alia, by adding a cause of action alleging aviolation of Labor Law § 741. The Supreme Court granted the defendants'motion and denied the plaintiff's cross motion. The plaintiff appeals.
Labor Law § 740 creates a cause of action in favor of an employee whohas suffered a "retaliatory personnel action" as a consequence of, inter alia, "disclos[ing],or threaten[ing] to disclose to a supervisor or to a public body an activity, policy orpractice of the employer that is in violation of law, rule or regulation which violationcreates and presents a substantial and specific danger to the public health or safety," or asa consequence of "object[ing] to, or refus[ing] to participate in any such activity, policyor practice in violation of a law, rule or regulation" (Labor [*2]Law § 740 [2] [a], [c]; see Minogue v Good SamaritanHosp., 100 AD3d 64, 69 [2012], citing Lamagna v New York State Assn. forHelp of Retarded Children, 158 AD2d 588, 589 [1990]; Pipia v Nassau County, 34AD3d 664, 665 [2006]; Mazzacone v Corlies Assoc., 21 AD3d 1066, 1066-1067[2005]).
In deciding a motion to dismiss a complaint pursuant to CPLR 3211 (a) (7) forfailure to state a cause of action, the court must accept the facts alleged in the complaintas true, accord the plaintiff the benefit of every possible favorable inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory (see East Hampton Union FreeSchool Dist. v Sandpebble Bldrs., Inc., 66 AD3d 122, 125 [2009], affd16 NY3d 775 [2011]). Here, evaluating the complaint under that standard, we find that itstated a cause of action under Labor Law § 740. The complaint alleged,among other things, that the plaintiff was offered a promotion at AAC's Brooklynfacility. The complaint also alleged that the terms of the promotion would have placedthe plaintiff under the supervision of the defendant Tonya Parker, who was not amongthe class of persons authorized by law or regulation to supervise a registered nurse inclinical activities. The complaint also alleged that the plaintiff pointed out that Parkerwas not authorized to supervise her, but the terms of the promotion were not changed.The complaint further alleged that after the plaintiff declined to accept the promotion,she was discharged from her position as Head of Nursing, and another nurse was giventhe position that plaintiff had turned down, under Parker's supervision. The complaintsufficiently alleged activities covered by Labor Law § 740 (see Webb-Weber v CommunityAction for Human Servs., Inc., 23 NY3d 448, 453-454 [2014]), including thatsupervision of a nurse in clinical activities by an unauthorized person would, under thecircumstances alleged, cause a substantial and specific danger to public health (see id.at 454). The defendants' remaining contentions with respect to their motion todismiss are without merit. Accordingly, the Supreme Court erred in granting thedefendants' motion to dismiss the complaint pursuant to CPLR 3211 (a) (7).
The Supreme Court also should have granted the plaintiff's cross motion for leave toamend the complaint pursuant to CPLR 3025 (b). The Legislature has provided thatparties may amend pleadings with leave of the court, and that such "[l]eave shall befreely given" (CPLR 3025 [b]). Courts have interpreted that provision to mean that, inthe absence of prejudice or surprise to the opposing party "resulting directly from thedelay in seeking leave," courts should grant leave to amend "unless the proposedamendment is palpably insufficient or patently devoid of merit" (Lucido v Mancuso, 49 AD3d220, 222, 227 [2008]). Here, the plaintiff sought leave to amend her complaintbefore the defendants served their answer, and her proposed cause of action alleging aviolation of Labor Law § 741 is neither palpably insufficient nor patentlydevoid of merit (see id. at 227). Accordingly, the court should have granted theplaintiff's cross motion. Balkin, J.P., Roman, Maltese and Connolly, JJ., concur.