MAZZACONE v. Richard Strain, et al., respondents.

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Supreme Court, Appellate Division, Second Department, New York.

Lou MAZZACONE, appellant, v. CORLIES ASSOCIATES, et al., defendants, Richard Strain, et al., respondents.

Decided: September 26, 2005

HOWARD MILLER, J.P., BARRY A. COZIER, DAVID S. RITTER, and ROBERT A. SPOLZINO, JJ. Barry D. Haberman, New City, N.Y., for appellant. Rider, Weiner & Frankel, P.C., New Windsor, N.Y. (Moacyr R. Calhelha of counsel), for respondents.

In an action, inter alia, to recover damages for violation of Labor Law § 740, the plaintiff appeals, as limited by his brief, from so much of an order of the Supreme Court, Dutchess County (Sproat, J.), dated May 21, 2004, as granted that branch of the motion of the defendants Richard Strain and Charles J. Maneri, Jr., which was for summary judgment dismissing the complaint insofar as asserted against them, and denied his cross motion pursuant to CPLR 3212(f) for further discovery.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 To establish a cause of action under Labor Law § 740, commonly referred to as “the whistleblower's statute” (Lamagna v. New York State Assn. for Help of Retarded Children, 158 A.D.2d 588, 589, 551 N.Y.S.2d 556), a plaintiff must plead and prove that his or her employer engaged in an activity, policy, or practice which violated a law, rule, or regulation that presented a substantial and specific danger to the public health or safety (see Bordell v. General Elec. Co., 88 N.Y.2d 869, 871, 644 N.Y.S.2d 912, 667 N.E.2d 922;  Lamagna v. New York State Assn. for Help of Retarded Children, supra;  Leibowitz v. Bank Leumi Trust Co. of N.Y., 152 A.D.2d 169, 175-176, 548 N.Y.S.2d 513).

The plaintiff failed to raise a triable issue of fact to refute the prima facie showing by the respondents that they did not engage in any activity, policy, or practice which constituted an actual violation (see Bordell v. General Elec. Co., supra;  Khan v. State Univ. of N.Y. Health Science Ctr. at Brooklyn, 288 A.D.2d 350, 734 N.Y.S.2d 92).

 Similarly, the respondents established their prima facie entitlement to summary judgment dismissing the cause of action to recover damages for intentional infliction of emotional distress by demonstrating that their alleged conduct was not “ ‘so outrageous in character and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized community’ ” (Fischer v. Maloney, 43 N.Y.2d 553, 557, 402 N.Y.S.2d 991, 373 N.E.2d 1215, quoting Restatement [Second] of Torts § 46[1], comment d;  see Freihofer v. Hearst Corp., 65 N.Y.2d 135, 143, 490 N.Y.S.2d 735, 480 N.E.2d 349;  Murphy v. American Home Prods. Corp., 58 N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86;  Sarlo v. Fairchild Sons, 256 A.D.2d 322, 681 N.Y.S.2d 555).   The plaintiff failed to raise a triable issue of fact in opposition to the respondents' submissions on this issue (see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Therefore, the Supreme Court properly granted that branch of the respondents' motion which was for summary judgment dismissing the complaint insofar as asserted against them.

The plaintiff's remaining contention regarding the denial of his cross motion for further discovery has been rendered academic, and in any event, is without merit.

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