Opinion
15320/04.
Decided June 20, 2006.
Pamela A. Elisofon, Esq., Brooklyn, NY, Attorney for Plaintiff.
Epstein Becker Green, P.C., Attn: Daniel C. Knauth, Esq., New York, NY, Attorneys for Defendant.
The motion [sequence #2] by plaintiff, Virginia Phyllis Berde ("Berde"), pursuant to CPLR 3212, for an order, inter alia: (1) granting summary judgment against defendant, North Shore — Long Island Jewish Health System, Inc. a/k/a North Shore University Hospital at Plainview ("Hospital") on the issue of liability; and (2) reinstating plaintiff, Berde, to her position with the attendant title, current salary and lost benefits and all emoluments therefore is denied.
The motion [sequence #3] by defendant Hospital pursuant to CPLR 3212, for an order awarding it summary judgment dismissing plaintiff's complaint is granted.
Plaintiff Berde, an employee of defendant North Shore University Hospital at Plainview, brings this "whistle-blower" action, pursuant to Sections 740 and 741 of the New York State Labor Law.
In her complaint, plaintiff alleges that defendant Hospital unlawfully terminated her employment as a Nurse Manager in the perioperative unit of the Hospital in July 2004, after 32 years of service. Specifically, plaintiff alleged that defendant retaliated against her because she repeatedly complained to her supervisors that "[t]here were problems with the sterility of the surgical instruments . . . that there were surgical trays that were unclean, and surgical instruments that were blocked with bio-burden (previous patient's tissue and blood)" ( Complaint, ¶ 29). Plaintiff further alleges that the use of unsanitary and unsterilized instruments in the operating room at the Hospital, endangered the health, safety and welfare of patients and the general public and violated 10 NYCRR §§ 405.12, 405.24, 415.9 [sic], 92-2.1 ( Id. ¶ 1). With the exception of § 415.9, which simply does not exist, each section allegedly violated by defendant sets forth the State's requirements regarding the minimum standards a hospital must maintain with respect to surgical services, environmental health and the required use of infection control practices by physicians.
Pursuant to the order of this Court, dated February 5, 2005 [Phelan, J.], plaintiff's Labor Law § 741 claim was previously dismissed. Thus, upon the within motion and cross-motion, this Court is left to entertain merely the viability and sufficiency of plaintiff's Labor Law § 740 cause of action.
It is well settled that the so-called "Whistle-blower Statute" (Labor Law § 740; see also, Labor Law § 741), is designed to protect employees from retaliatory personnel action ( see Bordell v. General Elec. Co., 88 NY2d 869; Remba v. Federation Employment and Guidance Serv., 149 AD2d 131 [1st Dept. 1989], aff'd 76 NY2d 801). To sustain a cause of action under Labor Law § 740 a plaintiff must establish the following: (1) that the activity, policy, or practice that she disclosed, or threatened to disclose was an activity, policy or practice of the employer; (2) that the activity, policy or practice constituted an actual violation of a law, rule or regulation (Labor Law § 740[c], [2][a]); and (3) that the violation was one that creates and presents a substantial and specific danger to the public health or safety (Labor Law § 740[a]; see Bordell v. General Elec. Co., supra; Remba v. Federation Employment and Guidance Serv., supra; Radice v. Elderplan, 217 AD2d 690, 691; Lamagna v. New York State Assn. for Help of Retarded Children, 158 AD2d 588, 589 [2nd Dept. 1990]).
The Whistle-blower Statute requires proof of an actual violation of a law, rule or regulation; an employee's good-faith reasonable belief that a violation may have occurred is insufficient ( see Bordell v. General Elec. Co., supra). Moreover, it is not sufficient that plaintiff merely allege in conclusory terms that defendant's activities pose a danger to the members of the public; the pleading must describe how the supposedly illegal activities in question imperil the health or safety of the public. If plaintiff fails to satisfy one or both of these prerequisites, plaintiff's Labor Law § 740 cause of action must be dismissed ( see e.g. Bordell v. General Electric Co., supra at 871; Remba v. Federation Employment and Guidance Serv., supra at 138).
On this record, although plaintiff's submissions in support of her motion for summary judgment satisfy prongs 1 and 3 of the elements necessary to sustain her cause of action ( see, generally, Finkelstein v. Cornell Univ. Medical Center, 269 AD2d 114, 116 [1st Dept., 2000], plaintiff fails to provide evidence, prima facie, that the activity, policy or practice complained of was, in fact, an actual violation of a law, rule or regulation.
Absent same, plaintiff's motion for summary judgment must be denied, without regard to the sufficiency of defendant's opposition papers ( see Winegrad v. New York Univ. Med. Center, 64 NY2d 851 at p. 853).
Defendant Hospital, by contrast, provides sufficient admissible evidence to sustain its burden on its motion for summary judgment. Defendant argues that as articulated in the New York State's Department of Health's January 2005 determination, plaintiff's Section 740 claim fails, because she has no "proof of an actual violation" of any NYS DOH regulations ( see Bordell v. General Elec. Co., supra at 871). This Court agrees.
The NYS DOH investigated each of plaintiff's allegations and expressly informed her that there was no "actual violation" of any applicable law or rule. Where, as here, the specific administrative agency charged with the responsibility for investigating claimed violations of its own regulations and imposing enforcement sanctions has investigated the very issues raised by plaintiff in this lawsuit, and unequivocally declared that "our investigation did not reveal any violations of the regulations," plaintiff's unsubstantiated belief that the agency was wrong is simply an insufficient basis to preclude summary judgment in defendant's favor ( see Khan v. State University of New York Health Sci. Ctr., 288 AD2d 350 [2nd Dept. 2001]; Dougherty v. Memorial Sloan-Kettering Cancer Ctr., 2002 U.S. Dist. LEXIS 13216, 2002 WL 1610916 [S.D.NY July 22, 2002]).
Moreover, defendant has submitted ample proof, in admissible form, including the deposition testimony of Marianna Vazquez, the Hospital's Nurse Executive, that plaintiff was properly terminated because she continually clashed with her supervisor, Donna McPartland, had sharp communication difficulties with numerous administrators, and other staff, and refused to alter her confrontational style despite repeated counseling and proffered assistance.
Defendant has demonstrated that plaintiff's termination was "predicated upon grounds other than [her] exercise of any rights protected by [Section 740]" which constitutes a statutory defense to plaintiff's whistle blower claim (Labor Law § 740[c]).
In opposition, plaintiff fails to make the requisite factual showing to defeat defendant's motion ( see Zuckerman v. City of New York, 49 NY2d 557, at 562). Again plaintiff does not establish an actual violation of any specific law, rule, or regulation in her papers submitted in opposition to defendant's motion for summary judgment.
Defendant's motion for summary judgment is, accordingly, granted. Plaintiff's complaint is dismissed without costs.
This decision constitutes the order and judgment of the court.