FREESE v. WILLA (2011)

In an action, inter alia, to recover damages for retaliation and wrongful termination of employment, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Suffolk County (Rebolini, J.), dated July 8, 2010, as granted those branches of the motion of the defendants Ronald Willa, Warren Wartell, Eunice Ro, Thomas Edwards, Joseph Antonelli, Kevin Kelly, Christine Oster, Faculty–Student Association of the State University of New York at Stony Brook, Inc., and Undergraduate Student Government, and the separate motion of the defendant Peter M. Baigent, which were pursuant to CPLR 3211(a)(7) to dismiss the first and third causes of action insofar as asserted against each of them.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable to the respondents appearing separately and filing separate briefs.

The plaintiff maintains that her first cause of action adequately alleges a cause of action under Labor Law § 740 in that the complaint alleges that she was retaliated against and discharged by her employer, the defendant Faculty–Student Association of the State University of New York at Stony Brook, Inc., for, among other things, complaining to her supervisor and others about the misappropriation of funds by certain employees and inappropriate comments made by one employee to another about a female student, and for filing grievances relating to a deprivation of vacation pay and a reduction of work hours. 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’ “ (Pipia v. Nassau County, 34 AD3d 664, 665, quoting Lamagna v. New York State Assn. for Help of Retarded Children, 158 A.D.2d 588, 589; see Labor Law § 740[2][a], [c] ). Contrary to the plaintiff's contention, she failed to plead 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 Blumenreich v. North Shore Health Sys., 287 A.D.2d 529, 530). Moreover, the complaint does not allege a violation which would threaten the health or safety of the public at large (see Remba v. Federation Empl. & Guidance Serv., 76 N.Y.2d 801, 802; Pipia v. Nassau County, 34 AD3d at 666; Smith v. Angel Guardian Home, 263 A.D.2d 476; Kaganowicz v. Booth Mem. Med. Ctr., 215 A.D.2d 530, 531; Lamagna v. New York State Assn. for Help of Retarded Children, 158 A.D.2d at 589). In addition, the Supreme Court properly held that the defendants Undergraduate Student Government, Eunice Ro, Joseph Antonelli, and Peter M. Baigent were entitled to dismissal of the first cause of action insofar as asserted against them because the plaintiff had no employee-employer relationship with any of these defendants (see Salimi v. New York Methodist Hosp., 45 AD3d 559; Edward M. Stephens, M.D., F.A.A.P. v. Prudential Ins. Co. of Am., 278 A.D.2d 16). Since the plaintiff does not advance any other legal theory upon which her first cause of action is based, the Supreme Court properly granted those branches of the respondents' separate motions which were pursuant to CPLR 3211(a)(7) to dismiss that cause of action insofar as asserted against them.

Since the plaintiff asserted a cause of action pursuant to Labor Law § 740, “[she] waived other causes of action relating to the alleged retaliatory [action]” (Deshpande v. TJH Med. Servs., P.C., 52 AD3d 648, 651). Accordingly, those branches of the respondents' separate motions which were to dismiss the third cause of action alleging wrongful termination insofar asserted against them were properly granted, as they arose out of or related to the same underlying claim of retaliation.