[*1]
Doyle v Seton Health Sys., Inc.
2010 NY Slip Op 51424(U) [28 Misc 3d 1221(A)]
Decided on April 26, 2010
Supreme Court, Rensselaer County
Zwack, J.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on April 26, 2010
Supreme Court, Rensselaer County


K. Michelle Doyle, Plaintiff,

against

Seton Health System, Inc., Defendant.




231003



Gleason, Dunn, Walsh & O'Shea

Attorneys For Plaintiff

Lisa F. Joslin, Esq., of counsel

40 Beaver Street

Albany, New York 12207

Iseman, Cunningham, Riester & Hyde, LLP

Attorneys For Defendant

Brian M. Culnan, Esq., of counsel

9 Thurlow Terrace

Albany, New York 12203

Henry F. Zwack, J.



Defendant Seton Health System, Inc. moves pursuant to CPLR 3211 for an order dismissing plaintiff K. Michelle Doyle's three causes of action. Plaintiff cross-moves [*2]pursuant to CPLR 3025(b) for an order permitting her to amend her complaint to include further allegations in support of Labor Law § 741 Whistleblower cause of action.

CPLR 3025(b) declares that "A party may amend his pleading, or supplement it by setting forth additional or subsequent transactions or occurrences, at any time by leave of court or by stipulation of all parties. Leave shall be freely given upon such terms as may be just including the granting of costs and continuances." Leave to amend is freely given provided there is no prejudice to the nonmoving party and the amendment is not plainly lacking in merit, palpably improper, or insufficient as a matter of law (Leclaire v Fort Hudson Nursing Home, Inc., 52 AD3d 1101, 1102 [3d Dep't 2008]; Harrell v Champlain Enterprises, Inc., 222 AD2d 876 [3d Dep't 1995]). To answer the question, the Court turns to CPLR 3211(a)(7) and defendant's motion to dismiss for failure to state a cause of action to determine whether the proposed amended complaint states a cause of action.

CPLR 3211(a)(7) provides that "[a] party may move for judgment dismissing one or more causes of action asserted against him on the ground that:... the pleading fails to state a cause of action." Defendant urges that the complaint fails to state a cause of action. On a CPLR 3211(a)(7) motion, the Court's role is limited to deciding whether the facts as alleged in the complaint fit within a cognizable legal theory (Maas v Cornell University, 94 NY2d 87, 91 [1999]; Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]). When doing so, the Court must afford the complaint a liberal construction, accept as true the allegations contained therein, and accord the proponent of the cause of action the benefit of every favorable inference and cognizable legal theory (Skibinsky v State Farm Fire & Cas. Co., 6 AD3d 975, 976 [3d Dep't 2004]; 1455 Washington Ave. Assoc. v Rose & Kiernan, Inc., 260 AD2d 770, 771 [3d Dep't 1999]). Further, whatever can reasonably be implied from allegations in the pleadings and plaintiff's supporting affidavits must be deemed to be true (Cron v Hargro Fabrics, 91 NY2d 362, 366 [1998]; Korenman v Zaydelman, 237 AD2d 711, 713 [3d Dep't 1997]). Unlike motions for summary judgment, the Court's sole inquiry is whether the facts alleged in the complaint fit within a cognizable legal theory.

Labor Law § 741(2) prohibits health care employers from taking retaliatory action against an employee who:

"(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or

(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care."


To state a cause of action alleging a violation of Labor Law § 741(2)(a) and (b) a plaintiff need only set forth a good faith, reasonable belief that there has been conduct that [*3]"constitutes improper quality of patient care," which Labor Law § 741(1)(d) defines as a "violation of any law, rule, regulation or declaratory ruling adopted pursuant to law, where such violation relates to matters which may present a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient" (Deshpande v TJH Med. Services, P.C., 52 AD3d 648, 650 [2d Dep't 2008]; Pipia v Nassau County, 34 AD3d 664, 666 [2d Dep't 2006]). Plaintiff's factual pleadings, which, for the purpose of this motion, are assumed to be true, are sufficient to state a Labor Law § 741 Whistleblower cause of action. For example, plaintiff alleges that she was aware of dangerous situations such as the infants in the hospital nursery being left without any staff supervision. As a result, plaintiff alleges at least one incident in which an unsupervised infant suffering from lack of oxygen did not receive timely attention and needed to be taken to another hospital for treatment. Plaintiff alleges that after her supervisors were notified about her concern that defendant's inadequate staffing levels were insufficient to meet its obligations to provide adequate care for its patients, the supervisors retaliated against her. The Court finds that plaintiff has stated a cause of action and accordingly plaintiff's motion to file her amended complaint should be granted and defendant's motion to dismiss plaintiff's amended Whistleblower cause of action must be denied.

Turning to the question of whether plaintiff's second cause of action for defamation states a cause of action, the Court agrees with defendant's argument that plaintiff has failed to set forth sufficient factual allegations in support of her claim. CPLR 3016(a) requires that a defamation claim set forth the particular words complained of. Plaintiff has failed to do this. Plaintiff has also failed to identify the individuals to whom the defendant allegedly published the allegedly defamatory statement. A defamation claim must be dismissed for failure to state a cause of action where the allegedly defamatory statements are not pleaded with specificity or the plaintiff's papers fail to specify to whom the statements were published (LaBarbera v Town of Woodstock, 29 AD3d 1054, 1056-1057 [3d Dep't 2006]; Bell v Slepakoff, 224 AD2d 567, 568-569 [2d Dep't 1996]; Ott v Automatic Connector, 193 AD2d 657, 658 [2d Dep't 1993]; Williams v Varig Brazilian Airlines, 169 AD2d 434, 437 [1st Dep't 1991]) and do not allege any special damages flowing from the alleged defamation (LaBarbera v Town of Woodstock, 29 AD3d 1054, 1056-1057 [3d Dep't 2006]; Wadsworth v Beaudet, 267 AD2d 727, 728 [1999]).

Regarding defendant's claim that plaintiff's commencement of a Whistleblower action waives her defamation action, the Court notes that is not necessarily true (Pipia v Nassau County, 34 AD3d 664, 667 [2d Dep't 2006]). However, as the defamation cause of action is being dismissed pursuant to CPLR 3211(a)(7), it is not necessary for the Court to address the question of whether or not an action for an alleged defamatory statement made following an allegedly retaliatory discharge would be barred by the waiver provisions of Labor Law § 740(7).

The Court grants defendant's motion to dismiss plaintiff's third cause of action for [*4]an alleged breach of contract. Labor Law § 740(7) governs Labor Law § 741 actions. Labor Law § 740(7) provides that "the institution of an action in accordance with this section shall be deemed a waiver of the rights and remedies available under any other contract, collective bargaining agreement, law, rule or regulation or under the common-law." Commencement of an action under Labor Law § 740(4) thus acts as an election of remedies, waiving other causes of action relating to the alleged retaliatory discharge, irrespective of the disposition of such claims. A claim alleging a violation of Labor Law § 741(2) is enforced pursuant to Labor Law § 740(4)(d)(see Labor Law § 741[4]). Thus, the same waiver is effected by the institution of a cause of action alleging a violation of Labor Law § 741(2)(Deshpande v TJH Med. Services, P.C., 52 AD3d 648, 666-667 [2d Dep't 2008]).

Accordingly, it is

ORDERED, defendant's motion to dismiss is granted only to the extent of dismissing plaintiff's second and third cause of action; and it is further

ORDERED, plaintiff's motion for leave to amend is granted and plaintiff is ordered to file her amended complaint with only the remaining first cause of action within fourteen days of this decision and order.

This constitutes the Decision and Order of the Court. This Decision and Order is returned to the attorneys for the plaintiff. All other papers are delivered to the Supreme Court Clerk for transmission to the County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

Dated:April 26, 2010

Troy, New York

________________________________________

Henry F. Zwack

Acting Supreme Court Justice