861 N.Y.S.2d 697 | N.Y. App. Div. | 2008
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 CFLR 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
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 nonGujurati 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
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” (Pipia v Nassau County, 34 AD3d at 666; 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 Pipia v Nassau County, 34 AD3d at 666). 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.
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 Rainer N. Mittl, Ophthalmologist, P.C. v New York State Div. of Human Rights, 100 NY2d 326, 330 [2003]; Ferrante v American Lung Assn., 90 NY2d 623, 629 [1997]). 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 Cruz v Coach Stores, Inc., 202 F3d 560, 565-566 [2000]; Lumhoo v Home Depot USA, Inc., 229 F Supp 2d 121, 145 [2002]).
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 Ballard v Community Home Care Referral Serv., 264 AD2d 747 [1999]), and the
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 People v Roth, 52 NY2d 440, 446-447 [1981]; Glen Cove Assoc. v North Shore Univ. Hosp., 240 AD2d 701 [1997]). Lifson, J.P, Florio, Garni and Belen, JJ., concur.