MIR v. Nassau Health Care Corporation, appellant.

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

Rabia MIR, respondent, v. COUNTY OF NASSAU, defendant, Nassau Health Care Corporation, appellant.

Decided: August 16, 2004

GABRIEL M. KRAUSMAN, J.P., DANIEL F. LUCIANO, BARRY A. COZIER, and ROBERT A. SPOLZINO, JJ. Nixon Peabody, LLP, Garden City, N.Y. (Amy L. Ventry and Tara Eyer Daub of counsel), for appellant. Louis D. Stober, Jr., LLC, Garden City, N.Y., for respondent.

In an action, inter alia, to recover damages for wrongful termination of employment, the defendant Nassau Health Care Corporation appeals from an order of the Supreme Court, Nassau County (Peck, J.), dated April 8, 2003, which denied its motion for summary judgment dismissing the complaint insofar as asserted against it and for the imposition of a sanction pursuant to 22 NYCRR 130-1.1(a) on the plaintiff.

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the appellant's motion which was for summary judgment dismissing the complaint insofar as asserted against it and substituting therefor a provision granting that branch of the motion;  as so modified, the order is affirmed, with costs to the appellant, and the complaint is dismissed insofar as asserted against the appellant.

 Contrary to the plaintiff's contention, there is no private right of action by employees to enforce Public Authorities Law § 3403(1)(d) (see Ahmad v. Nassau Health Care Corp., 8 A.D.3d 512, 779 N.Y.S.2d 520).

 The appellant made a prima facie showing of entitlement to judgment as a matter of law (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).   In opposition, the plaintiff failed to raise a triable issue of fact.   The plaintiff submitted no evidence that her termination was a “layoff” within the meaning of the statute or was a “direct consequence” of the enabling legislation (Public Authorities Law § 3403[1][d] ).

However, the Supreme Court properly denied that branch of the appellant's motion which was for the imposition of a sanction pursuant to 22 NYCRR 130-1.1(a) on the plaintiff (see Matter of Gavilanes v. Dilan, 281 A.D.2d 546, 721 N.Y.S.2d 818).

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