mahmood

This opinion is uncorrected and subject to revision in the Official Reports. This opinion is not available for publication in any official or unofficial reports, except the New York Law Journal, without approval of the State Reporter or the Committee on Opinions (22 NYCRR 7300.1)

Short Form Order

NEW YORK SUPREME COURT - QUEENS COUNTY

Present: HONORABLE THOMAS V. POLIZZI IA Part 14
Justice

_________________________
                          x               Index
MAHMOOD KHAN,             :               Number 25571 1998
                          :
                          :               Motion
   - against -             :       Date April 18, 2000
                          :
                          :         Motion
STATE UNIVERSITY OF       :
NEW YORK HEALTH           :               Cal. Number 31
SCIENCE CENTER AT BROOKLYN:
__________________________x

The following papers numbered 1 to 17 read on this motion by defendant State University of New York Health Science Center at Brooklyn for summary judgment in its favor dismissing plaintiff's complaint against it.

Papers
Numbered

Notice of Motion - Affidavits - Exhibits .......1 - 10
Affirmation in Opposition - Exhibits............ 11 - 14
Other........................................... 15 - 17

Upon the foregoing papers it is ordered that the motion is granted in part and denied in part.

Plaintiff brings this action alleging that the decision of Defendant State University of New York Health Science Center at Brooklyn (SUNY-HSCB) not to renew his employment as a Research Assistant Professor was in fact a wrongful retaliation for his complaints to his superiors and to the Department of Health about the poor air quality in the labs at defendant's facility. Defendant SUNY-HSCB seeks summary judgment on numerous grounds including that plaintiff has not properly stated a cause of action under Labor Law ' 740, the "whistleblowers' statute," and further, that it had a separate and independent basis for its decision not to renew plaintiff's employment.

Defendant SUNY-HSCB's motion to dismiss must be denied in part inasmuch as a question of fact exists as to whether plaintiff has properly set forth a claim under Labor Law ' 740. Pursuant to the recent Court of Appeals ruling in Bordell v General Elec. Co. (88 NY2d 869) a plaintiff seeking to recover under Labor Law ' 740 must present "proof of an actual violation" of the law that the employer has violated. (88 NY2d, supra, at 871.) To sustain such a claim, a plaintiff must establish more than a "reasonable" or "good faith" belief that there has been a violation. (Bordell v General Elec. Co., supra; Finkelstein v Cornell Univ. Med. Coll., ___ AD2d ___, 702 NYS2d 285.) The law which plaintiff claims was violated, Labor Law ' 27-a (3), mandates that public employees be furnished with a place of employment that is "free from recognized hazards that are causing or likely to cause death or serious physical harm..." Plaintiff, a medical doctor, presents his own affidavit that "the combination of the heat, poor ventilation and the existence of Formaldehyde and Phenol substantially increase an individual's risk of cancer." Also, plaintiff asserts in his affidavit that three students became ill or fainted while working in the gross anatomy lab. Plaintiff's affidavit based upon his personal knowledge of the working conditions is sufficient to meet his burden of raising an issue of fact as to whether there has been an actual violation. (Granser v Box Tree S., 164 Misc 2d 191.) It is evident that plaintiff has presented more than a mere "belief" that the conditions in the lab constitute a violation of Labor Law ' 27-a (3). (Finkelstein v Cornell Univ. Med. Coll., supra; Granser v Box Tree S., supra.) Issues of fact are also presented as to whether defendant SUNY-HSCB may be able to show, pursuant to Labor Law ' 740 (4)(c), that the decision not to renew plaintiff's employment was based upon factors related to his job performance, and wholly independent of his reporting of the alleged violations. (Finkelstein v Cornell Univ. Med. Coll., supra.)

That branch of defendant's motion seeking to dismiss plaintiff's fourth cause of action for redress under 42 USC 1983 is granted inasmuch it is well-established that the "State" is not a "person" within the meaning of the Federal statute. (Brown v State, 88 NY2d 183, 184.) Insofar as plaintiff has elected to pursue his remedies under Labor Law ' 740, the claims for breach of contract as set forth in his first cause of action must also be dismissed. (Labor Law ' 740 [7]; Rotwein v Sunharbor Manor Residential Health Care Facility, 181 Misc 2d 847.) Moreover, inasmuch as plaintiff herein acknowledges that general monetary damages are not available under Labor Law ' 740, defendant's motion for judgment dismissing plaintiff's second cause of action is granted. To the extent that plaintiff, while not noticing a cross motion for the same, requests this court to grant summary judgment in his favor, the same is denied in light of the outstanding issues of fact discussed above.

Dated: June 20, 2000 ____________________________
J.S.C.