Deshpande v. TJH Medical Services, P.C.
861 N.Y.S.2d 697
N.Y. App. Div.
2008
Check Treatment

SATISH DESHPANDE, Respondent-Appellant, v TJH MEDICAL SERVICES, P.C., et al., Appellants-Respondents, et al., Defendant.

Supreme Court, Appellate Division, Second Department, New York

861 N.Y.S.2d 697

In an action, inter alia, to recover damages for violation of Labor Law § 740, the defendants, except William O‘Connell, appeal, as limited by their brief, from so much of an order of the Supreme Court, Queens County (Kitzes, J.), dated January 12, 2007, as denied those branches of their motion which were pursuant to CPLR 3211 (a) (7) to dismiss the first, second, and third causes of action insofar as asserted against them, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as granted that branch of the motion of the defendants, except William O‘Connell, which was pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action insofar as asserted against them.

Ordered that the order is reversed insofar as appealed from, on the law, and those branches of the motion of the defendants, except William O‘Connell, which were pursuant to CPLR 3211 (a) (7) to dismiss the first, second, and third causes of action insofar as asserted against them are granted; and it is further,

Ordered that the order is affirmed insofar as cross-appealed from; and it is further,

Ordered that one bill of costs is awarded to the appellants-respondents.

The plaintiff alleged that he was an attending physician at Jamaica Hospital Medical Center and was employed and/or supervised by the defendants. The defendants allegedly terminated his employment in retaliation for his repeated complaints about improper patient care and employment discrimination in favor of individuals from a specific region of India. These individuals were identified in the complaint as “Gujuratis.” The plaintiff commenced this action alleging, under the third cause of action, that he was terminated in violation of Labor Law §§ 740 and 741. Under the second cause of action, he claimed that the defendants violated Executive Law § 296 and the Administrative Code of the City of New York § 8-107 by denying him promotions because he was not a Gujurati and by terminating him in retaliation for his complaints about the favoritism shown towards Gujuratis at the expense of non-Gujurati employees. Further, the plaintiff alleged, under the first cause of action, that the defendants violated Labor Law § 190 et seq. by failing to afford him an overtime differential in pay and, under the fourth cause of action, that they violated General Business Law § 340 by preventing him from entering into professional relationships with other health care providers or institutions. The Supreme Court, inter alia, denied those branches of the motion of the defendants, except William O‘Connell (hereinafter the appellants), which were pursuant to CPLR 3211 (a) (7) to dismiss the first, second, and third causes of action insofar as asserted against them, but granted that branch of their motion which was pursuant to CPLR 3211 (a) (7) to dismiss the fourth cause of action insofar as asserted against them. We reverse the order insofar as appealed from, and affirm the order insofar as cross-appealed from.

The Supreme Court should have granted that branch of the appellants’ motion which was to dismiss the third cause of ac-tion, which sought recovery for violations of Labor Law §§ 740 and 741, insofar as asserted against them because the plaintiff failed to state a cause of action under those statutes (see generally ). ”Labor Law § 740 (4) creates a cause of action in favor of an employee who has been unlawfully discharged as a consequence of engaging in certain protected conduct” (). A cause of action based upon Labor Law § 740, known as the “whistleblower statute,” is available “to an employee who discloses or threatens to disclose an employer activity or practice which (1) is in violation of a law, rule or regulation, and (2) creates a substantial and specific danger to the public health” (, quoting ; see Labor Law § 740 [2] [a]). Labor Law § 740 requires a plaintiff to allege an actual violation of a law, rule, or regulation. A good faith, reasonable belief that a violation occurred is insufficient (see ; ). Here, the plaintiff failed to allege a violation of any law, rule, or regulation with the requisite particularity and specificity necessary to support a cause of action under Labor Law § 740 (see ; cf. ).

The plaintiff also failed to state a cause of action for violation of Labor Law § 741. “A cause of action alleging a violation of Labor Law § 741 . . . differs from a cause of action alleging a violation of Labor Law § 740 . . . in that such a complaint is required to allege only a good faith, reasonable belief that there has been a violation of the applicable standards, rather than an actual violation” (; see Labor Law § 741 [2] [a], [b]). A plaintiff claiming a violation of Labor Law § 741 (2) (a) must nonetheless allege conduct which constitutes “improper quality of patient care,” which is defined as “any practice, procedure, action or failure to act of an employer which violates any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient” (Labor Law § 741 [1] [d]; see ). Because the plaintiff did not allege even a good faith, reasonable belief that the appellants’ conduct violated any “law, rule, regulation or declaratory ruling adopted pursuant to law” (see Labor Law § 741 [1] [d]), he failed to state a cause of action pursuant to Labor Law § 741.

The Supreme Court should have granted that branch of the appellants’ motion which was to dismiss the second cause of action to recover damages for violations of Executive Law § 296 and the Administrative Code of the City of New York § 8-107 insofar as asserted against them. Initially, the plaintiff waived recovery under the second cause of action to the extent it arose from the alleged retaliatory discharge. “The mere commencement of an action under Labor Law § 740 (4) . . . acts as an election of remedies, waiving other causes of action relating to the alleged retaliatory discharge, irrespective of the disposition of such claims” (; see Labor Law § 740 [7]; ; ; ). Because the plaintiff asserted a claim for retaliatory discharge pursuant to Labor Law § 740 under the third cause of action, he waived other causes of action relating to the alleged retaliatory discharge (see ; ; ; ).

Moreover, the plaintiff failed to state a cause of action for failure to promote in violation of Executive Law § 296 or the Administrative Code of the City of New York § 8-107. The standards for establishing unlawful discrimination under Executive Law § 296 are the same as those governing Title VII cases under the Civil Rights Act of 1964 (see ; ). Here, the plaintiff failed to state a cause of action for failure to promote because he did not allege any specific instance where the appellants refused to promote him to a position for which he applied and for which he was qualified (see ; ).

The Supreme Court also should have granted that branch of the appellants’ motion which was to dismiss the first cause of action insofar as asserted against them for failure to state a cause of action. Under that cause of action, the plaintiff sought recovery for violation of Labor Law § 190 et seq. based on the appellants’ alleged failure to afford him an overtime differential in pay. However, the Labor Law does not contain any provisions governing overtime compensation (see ), and the plaintiff failed to identify any basis for his alleged entitlement to an overtime differential in pay.

Finally, the Supreme Court properly granted that branch of the appellants’ motion which was to dismiss the fourth cause of action insofar as asserted against them pursuant to CPLR 3211 (a) (7) (see ; ).

Lifson, J.P, Florio, Garni and Belen, JJ., concur.