SMITH v. ANGEL GUARDIAN HOME (1999)

In a action to recover damages pursuant to Labor Law § 740 and for breach of contract, the plaintiff appeals from an order of the Supreme Court, Kings County (G. Aronin, J.), dated May 20, 1998, which granted the defendants' motion for partial summary judgment dismissing the first cause of action and denied her cross motion for partial summary judgment on the second cause of action.

ORDERED that the order is affirmed, with costs.

The court properly granted the defendants' motion for partial summary judgment dismissing the first cause of action to recover damages pursuant to Labor Law § 740.   The defendants proffered sufficient evidence to establish their entitlement to summary judgment as a matter of law, and the plaintiff's papers in opposition were insufficient to raise a triable issue of material fact (see, Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Zuckerman v. City of New York, 49 N.Y.2d 557, 427 N.Y.S.2d 595, 404 N.E.2d 718).   The plaintiff failed to demonstrate that the allegedly unlawful billing practices of the defendants “create[d] and present[ed] a substantial and specific danger to the public health or safety” (Labor Law § 740[2][a];  see, Remba v. Federation Empl. & Guidance Serv., 76 N.Y.2d 801, 559 N.Y.S.2d 961, 559 N.E.2d 655;  Kaganowicz v. Booth Mem. Med. Ctr., 215 A.D.2d 530, 627 N.Y.S.2d 948;  Lamagna v. New York State Assn. for Help of Retarded Children, 158 A.D.2d 588, 551 N.Y.S.2d 556;  Easterson v. Long Is. Jewish Med. Ctr., 156 A.D.2d 636, 549 N.Y.S.2d 135).

The plaintiff failed to make a prima facie showing of entitlement to judgment as a matter of law on her second cause of action alleging breach of contract.   Accordingly, the court properly denied the plaintiff's cross motion for partial summary judgment (see, Alvarez v. Prospect Hosp., supra;  Zuckerman v. City of New York, supra).

MEMORANDUM BY THE COURT.