Upon the foregoing papers, defendant Wyckoff Heights Medical Center moves, pursuant to CPLR 3211(a) (1), (5), and (7), to dismiss the complaint of plaintiff Dorota Von Maack (plaintiff) on the grounds that plaintiff's claim is barred by a prior arbitration award and that the allegations in the complaint fail to state a cause of action upon which relief can be granted. Defendant further moves to strike plaintiff's jury demand on the ground that Labor Law § 741 does not provide a right to a trial by jury.

This is a retaliatory personnel action commenced by plaintiff, a pharmacist [*2]formerly employed by defendant Wyckoff Heights Medical Center (defendant or Wyckoff), who seeks to recover damages because she was allegedly discharged for complaining about unsafe conditions in Wyckoff's pharmacy, in violation of Labor Law § 741, New York's Health Care Whistleblower Law.

Wyckoff is a non-profit hospital located in Brooklyn, New York.^[FN1] On November 15, 2004, plaintiff began working as a "Staff Registered Pharmacist" at Wyckoff, responsible for "compounding medications, compounding chemotherapy and consulting with physicians, nurses, and patients." At all relevant times, plaintiff's supervisor was Joseph Rumore, Director of Pharmacy.

In 2005, plaintiff first complained to Mr. Rumore about unsafe conditions in the pharmacy. Specifically, plaintiff informed Mr. Rumore "that the chemotherapy and IV station should not be in the same room because of the hazardous effects;" advised him "about the dangerous effects of exposing chemotherapy to high temperature;" "explained that the ventilation in the room often exceeded 100 degrees and that chemotherapy medications should not be subjected to such extreme temperatures;" and complained about the lack of protection while employees changed their protective gear after compounding chemotherapy in an area with positive air pressure." According to plaintiff, "[t]here were no screens or shields in the pharmacy and the pharmacists were exposed to hazardous vapors from the chemotherapy [], [s]pecifically, the two (2) IV stations did not have protective shields." The complaint further alleges that "[b]ecause the pharmacy was so busy, [plaintiff], and other pharmacists, often had to stop creating the IV drugs to check on the chemotherapy," which "resulted in cross contamination between the two (2) drugs, which could be harmful to patients." Plaintiff "also informed Mr. Rumore that she observed pharmacists working without gloves." "In response, Mr. Rumore told [plaintiff], If you don't like it, quit.'"

"[Plaintiff] informed Mr. Rumore that she would notify OSHA if the situation within the pharmacy did not change, but Mr. Rumore did not respond." She also notified Frances Heaney, the Vice President of Professional Services, on three separate occasions about "the exposure to chemotherapy and unsafe working conditions."

The complaint further alleges that in 2009, "after [plaintiff] had repeatedly complained during staff meetings about the unsterile conditions, Mr. Rumore told [plaintiff] that she no longer needed to attend staff meetings."Plaintiff alleges that she was an active union member, and that "[t]hroughout her employment, she repeatedly expressed her concern about the unsterile and hazardous conditions in the pharmacy at departmental and union meetings."

The complaint further avers that in 2010, as a result of exposure to harmful toxins and a lack of proper ventilation, plaintiff "developed chronic obstructive pulmonary disease ("COPD")," which she did not have before her employment at Wyckoff, and also [*3]suffered from multiple colds and pneumonia. She alleges that "due to the lack of proper ventilation, the chemotherapy toxins cross contaminated adjacent areas of the pharmacy," namely "[t]he chemotherapy vials with toxic residue were placed under the IV station and were directly exposed to unobstructed air flow that spread the toxins around the room where employees worked."

Because Mr. Rumore failed to respond to her complaints, plaintiff organized a meeting with several co-workers and the Vice President of Union 1199 SEIU, during which plaintiff and her co-workers discussed, among other matters, health hazards and the unsterile working conditions in the pharmacy. According to the complaint, "[t]hroughout her employment at Wyckoff, [plaintiff] was [an] active member of the Union who regularly expressed her concerns and opinions to supervisors, including Mr. Rumore."

On August 5, 2011, plaintiff made an online complaint to the Occupational Safety and Health Administration (OSHA), alleging unsafe and unsanitary working conditions. Plaintiff informed the union vice president that she had filed the complaint and provided her with a copy of the complaint. According to plaintiff, "[a] couple of days later, [she] noticed that a document from OSHA was posted in a glass cabinet within the pharmacy. . . The document set forth that employees working in the pharmacy may be exposed to: 1) harmful chemicals because the chemotherapy compounding station and intravenous medication preparation station were located in the same room; 2) respiratory problems due to an old ventilator and 3) slips due to leaks in the ceiling."^[FN2]

The complaint further details the events preceding plaintiff's termination. It alleges that "[o]n July 30, 2011, a shipment of medication was delivered to the pharmacy," that "[i]t [was] the responsibility of the Pharmacy Technician to accept deliveries," and that "[t]he Pharmacy Technician was working in the pharmacy [that day, who] informed [plaintiff] that she did not have access to the storage room." According to [*4]the complaint, plaintiff "used her magnetic key to open the door for the Pharmacy Technician and returned to her work, preparing medications for patients on a busy Saturday morning . . . Without notice of her alleged actions on July 30, 2011, on August 11, 2011, [plaintiff] was terminated for failing to accept a delivery." Plaintiff alleges that "[a]lthough the Pharmacy Technician is responsible for accepting deliveries, and was working on July 30, 2011, [she] was terminated," and that "[u]nlike [her], the Pharmacy Technician and the other pharmacist on duty were not disciplined or terminated."

On April 11, 2012, a hearing was held at the American Arbitration Association, between Wyckoff and plaintiff's union, at which plaintiff was represented by union counsel, the purpose of which was to determine: "Was there just cause for the discharge of Dorota Von Maack? If not, what shall be the remedy?" As noted by the arbitrator, "[b]oth parties attended this hearing, were represented by counsel, and were afforded a full and equal opportunity to offer testimony under oath, to cross-examine witnesses, and to present evidence and arguments."

The arbitrator issued his decision in May, 2012, finding that Wyckoff had just cause for terminating plaintiff. In his decision, the arbitrator made various factual findings, first providing background with respect to plaintiff's employment and the reason for her termination. Specifically, he stated:

"The Grievant [plaintiff] was employed by Wyckoff Heights Medical Center as a full-time Registered Licensed Pharmacist since November 15, 2004. In this position, the Grievant was assigned to work every other weekend. Her employment was terminated following an incident that occurred on Saturday, July 30, 2011, when she allegedly refused to perform an assignment that fell within the scope of her duties - signing for a weekend delivery of medications. The Grievant was also disciplined for permitting the delivery person to enter into the Hospital's Pharmacy Department and to wander thereafter unaccompanied into areas of the Pharmacy Department where expensive drugs were stored. The Grievant denied having permitted the delivery person to roam about the Pharmacy Department, and contended that at no time did she adamantly refused to accept the disputed delivery" (Arbitrator's Decision, p. 3) (emphasis added).

"Credible testimony offered by the Hospital established persuasively that the other Pharmacist, S.K., an employee with thirty-five years of service at the Hospital, saw the [*5]delivery person through the window of the IV Room as he was preparing to create IV solutions. Pharmacist S.K. testified that he was responsible for preparing such IV solutions, as this duty was customarily performed by the Pharmacist who came on duty at 7 a.m. The Grievant, as the Pharmacist beginning her duties commencing at 7:30 a.m., first attended to orders in the main pharmacy dispensing area.

Pharmacist S.K. testified credibly that the delivery driver approached him and said that no one working up front would sign for his delivery. He recounted telling the driver to return to the front of the pharmacy and have somebody sign for the shipment. This witness further testified that the driver returned again shortly thereafter and said that the employees up front still refused to sign for his order.

None of the driver's hearsay testimony was admitted for the truth of the matter. However, Pharmacist S.K.'s testimony describing his actions credibly supported his assertion that he removed his gown and gloves, and exited the IV prep area to approach the front of the Pharmacy Department because he believed that the Grievant and the Pharmacy Tech refused to accept and verify the delivery. Pharmacist S.K. testified that he walked the driver back to the front of the Pharmacy Department, and asked the Grievant why she wouldn't sign for the order. [Pharmacist S.K.] further testified credibly that the Grievant said, It's not my responsibility'" (id. at 6-7).

The arbitrator further stated that the Hospital's determination that it was plaintiff who permitted the delivery driver to wander through the pharmacy had not been persuasively determined. In this regard, the arbitrator noted that plaintiff had denied permitting the delivery driver to leave the area immediately adjacent to the hallway, that Pharmacist S.K. did not observe this interaction, and that the Pharmacy Technician did not testify.

The arbitrator also stated that plaintiff had submitted a written statement on July 30, 2011 averring that the Pharmacy Clerk had asked her to open the door for the driver [*6]and that she "let the driver in and it was so busy I did not have time to count because there was no time . . . [The Pharmacy clerk] walked into [Pharmacist] S.K. in the back of the Pharmacy;" that plaintiff testified that she had left the receiving area after opening the Pharmacy door at the request of the Pharmacy Technician, who had no key; that she returned to her duties immediately after letting the delivery driver into the Pharmacy, as there were nurses waiting at the Pharmacy window for prescriptions; that she left the Pharmacy Technician and the delivery driver together in the receiving area; that she assumed that the Pharmacy Technician was accepting the delivery; and that no one had asked her to sign for the order" (id. at 7-8).

Based upon the foregoing, the arbitrator stated that:

"The undisputed presence of the Pharmacy Clerk on Saturday, July 30, 2011 precludes a finding that the Grievant was primarily responsible for allowing the delivery driver to roam freely throughout the Pharmacy, as the Pharmacy Clerk also had the responsibility of overseeing the whereabouts of the delivery driver and checking in the shipment. There is no negligence attributable to the Grievant for having opened the door to permit the delivery driver to bring his cartons into the Pharmacy from the hallway.

The Grievant testified that she didn't see the driver walk back to the IV room door, that she did not know this driver, and that she didn't see the driver return to the front area of the Pharmacy. Consequently, the evidentiary record does not establish persuasively the Grievant's culpability regarding this element of the offense for which she was terminated (id. at 8-9).

"The Grievant is, nevertheless, culpable for her failure to direct the Pharmacy Clerk to accept the shipment, or in the alternative, for not accepting the shipment herself without disturbing Pharmacist S.K., who was already engaged in his assigned duties in the sterile IV preparation area. Although the evidentiary record does not demonstrate whether the Grievant or the Pharmacy Technician told the driver to find someone else to accept the delivery, as the Licensed Pharmacist on duty for the front area of the Pharmacy at the time in question, the Grievant was professionally responsible [*7]to handle the matter. As the Pharmacist on duty closest to the receiving door, the Grievant was responsible to assure that the delivery was effectuated so that patients would have all the necessary medications throughout the weekend and on the following Monday morning. Clearly, she failed to discharge this responsibility either by directing the Pharmacy Technician to receive the delivery, or by directing the driver to wait until she could take care of it herself" (id. at 9) (emphasis added).

***

"By her own admission, the Grievant is culpable for misconduct as, even if the Grievant perceived receiving the Saturday truck delivery not to fall within the normal scope of her duties, the Grievant should have either directed the Pharmacy Technician to receive the shipment or accepted the shipment herself as the licensed professional with a higher level of training and responsibility than the Pharmacy Technician. If the Grievant was occupied with urgent demands from nurses that she claims were waiting for her help in the Pharmacy or on the telephone, she should have instructed the delivery person to wait for a moment. Having failed to take charge of the situation, she bears responsibility for refusing to perform a component of her overall professional duties, whether or not she is also culpable for permitting the delivery driver to wander unescorted back toward the area of the sterile IV room" (id. at 10).

Subsequently, plaintiff commenced the instant personnel action alleging that Wyckoff retaliated against her for reporting the above-described alleged unsafe working conditions (improper storage of chemicals, use of an "old ventilator," etc.) at Wyckoff in [*8]violation of Labor Law § 741. Specifically, the complaint alleges that Wyckoff violated (i) 10 NYCRR § 405.17; (ii) Education Law § 6808 (2) (c); and Wyckoff's Collective Bargaining Agreement with 1199 SEIU and Wyckoff's own policies and procedures, and that plaintiff "repeatedly disclosed to her supervisors . . . that she reasonably believed the activities, policies and practices of [Wyckoff] constituted improper quality of patient care;" that "she believed in good faith that the improper quality of patient care which she reported to her supervisors presented a threat to public health or safety and/or to the health of [Wyckoff's] patients;" that Wyckoff "had a reasonable opportunity to correct the dangerous activities, policies and practices, but failed to do so;" and that as a result of Wyckoff's retaliatory actions, she suffered financial damages and emotional distress.

Thereafter, Wyckoff made the instant motion to dismiss the complaint on the grounds that plaintiff's claim was barred by the arbitration award which determined that plaintiff was terminated for just cause and that the complaint fails to state a viable claim as a matter of law. Wyckoff also moved to strike plaintiff's jury demand on the ground that Labor Law § 741 does not provide a right to a trial by jury.

"On a motion to dismiss pursuant to CPLR 3211(a) (7), the court must liberally construe the complaint, accept all facts as alleged in the pleading to be true, accord the plaintiff the benefit of every favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory" (Gershner v Eljamal, 111 AD3d 664, 665 [2013], citing Leon v Martinez, 84 NY2d 83, 87-88 [1994] Rabos v R & R Bagels & Bakery, Inc., 100 AD3d 849, 851 [2012]). However, " bare legal conclusions and factual claims which are flatly contradicted by the record are not presumed to be true'" (id., quoting Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 1021-1022 [2007], see also Daub v Future Tech Enter., Inc., 65 AD3d 1004, 1005 [2009]). "A motion to dismiss a complaint pursuant to CPLR 3211 (a) (1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint, conclusively establishing a defense as a matter of law'" (Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d 587, 587 [2014], quoting Goshen v Mutual Life Ins. Co. of NY, 98 NY2d 314, 326 [2002]). Stated otherwise, "[t]o succeed on a motion to dismiss pursuant to CPLR 3211 (a) (1), the documentary evidence that forms the basis of the defense must be such that it resolves all factual issues as a matter of law, and conclusively disposes of the plaintiff's claim" (Trade Source, Inc. v Westchester Wood Works, Inc., 290 AD2d 437, 438 [2002]). Finally, under CPLR 3211 (a) (5), a complaint may be dismissed based on a prior arbitration award (Martin v Geico Direct Ins., 31 AD3d 505, 506 [2006]).

Applying these principles to Labor Law § 741, it is settled that "[t]he specialized protection offered by Labor Law § 741 extends only to those health care employees who "perform[] health care services" (Reddington v Staten Is. Univ. Hosp., 11 NY3d 80, 89 [2008], citing Labor Law § 741 [1] [a]). Labor Law § 741 (2) (a) provides, in relevant [*9]part, that:

"(2) Retaliatory action prohibited. No employer shall take retaliatory action against any employee because the employee does any of the following:

(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 . . ."

"with respect to patient care, any practice, procedure, action or failure to act of an employer which violates 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."

In order to state a cause of action under Labor Law § 741, a plaintiff must plead that: 1) she is a covered employee within the meaning of the statute; 2) that she disclosed or threatened to disclose an activity, policy, or practice of the employer to a supervisor or a public body; 3) that she, in good faith, reasonably believed that the activity, policy, or practice constituted a violation of a law, rule, regulation, or declaratory ruling adopted pursuant to law; and 4) that the violation presented either a substantial and specific danger to public health or safety or a significant threat to the health of a specific patient (Labor Law § 741; Minogue v Good Samaritan Hosp., 100 AD3d 64, 69 [2012] Webb-Weber v Community Action for Human Servs., Inc., 98 AD3d 923, 924 [2012], 1v granted 20 NY3d 855 [2013] Pipia v Nassau County, 34 AD3d 664, 666 [2006] Blashka v New York Hotel Trades Council, 2013 NY Slip Op 32679 [U], *5-6 [Sup Ct, NY County 2013] Phillips v Ralph Lauren Ctr. for Cancer Care & Prevention, 22 Misc 3d 1128 [A], *3 [Sup Ct, NY County 2009]). "The statute, however, also provides that it shall be a defense that the personnel action was predicated upon grounds other than the employee's exercise of any rights protected by this section'" (Luiso v Northern Westchester Hosp. Ctr., 65 AD3d 1296, 1298 [2009], quoting Labor Law § 741 [5] Galbraith v Westchester County Health Care Corp., 113 AD3d 649 [2014]). The term "personnel action" refers to the action taken by the employer against the employee, such as a demotion or termination (see Galbriath, 113 AD3d at 649; Luiso, 65 AD3d at 1298; Blashka v New York Hotel Trades Council, 2013 NY Slip Op 4949 [U], *7-8 [Sup Ct, NY County 2013]). [*10]

In support of its motion to dismiss, Wyckoff first argues that plaintiff's claim under Labor Law § 741 should be dismissed because it has already been determined at the parties' arbitration proceeding that plaintiff was discharged for just cause based on her own misconduct. Wyckoff next asserts that even if the arbitration award did not settle the issue of why plaintiff was discharged, the complaint fails to state a claim under Labor Law § 741 because: (1) plaintiff was not a covered "employee" as that term is narrowly defined by the statute; (2) the complaint fails to identify or sufficiently plead facts of a specific law, rule or regulation that plaintiff in good faith believed was violated by Wyckoff; and (3) that plaintiff fails to plead facts which would demonstrate that there was any substantial danger to the public health or safety or any danger to a particular patient occasioned by such violation, as required by the statute. Lastly, to the extent the complaint is not dismissed, Wyckoff moves to strike some of plaintiff's requested relief (emotional distress and mental anguish) and to strike plaintiff's demand for a jury trial, because such relief is not provided by the statute.

In opposition, plaintiff argues that she is not barred from pursuing her Labor Law claim in state court because she was not a direct party to the arbitration and because the arbitration did not address the Labor Law § 741 violations she reported to Wyckoff during her employment. With respect to the sufficiency of the complaint, plaintiff asserts that she is in fact an "employee" as that term is defined by the statute because as a Staff Pharmacist working under the control and direction of Wyckoff, who was primarily responsible for compounding medications and chemotherapy treatments, she was qualified "to make knowledgeable judgments as to the quality of patient care." Plaintiff also claims that she met her burden of pleading a good faith, reasonable belief that Wyckoff violated a law by "pleading her specific complaints to management concerning the laws and hospital standards that Wyckoff violated." Plaintiff also argues that the conduct complained of presents a substantial or significant danger to public health or safety or a significant threat to the health of a specific patient because her "complaints of, inter alia, contaminated medication and fluid from the ceiling leaking into the pharmacy, create a significant threat to the health of any specific patient as required by [the statute]," that "[a]ny patient who thereafter ingests or is injected with contaminated chemotherapy and IV compounds has been placed at risk due to Wyckoff's failure to maintain a safe and clean pharmacy," and that the "complaint specifically alleges that the hazardous conditions created a threat to [her], her co-workers and patients of the hospital."

Based upon a review of the record and the submissions of the parties, the complaint must be dismissed. First, the prior arbitration between plaintiff's union and Wyckoff determined that plaintiff's termination was for just cause, and not based upon her "exercise of any rights" under Labor Law § 741 (Labor Law § 741 [5]). In this regard, the complaint alleges that after plaintiff's termination from Wyckoff, an arbitration hearing was held on April 11, 2012, wherein the arbitrator determined that plaintiff was properly terminated for cause. Plaintiff was represented by Union counsel and was given [*11]a full and equal opportunity to offer testimony under oath, to cross examine witnesses, and to present evidence and arguments. After a full hearing, the arbitrator found that plaintiff was culpable for misconduct on July 30, 2011, and concluded that "when evaluated as an additional incident in a sequence of uncooperative behavior justifying progressively severe discipline for recalcitrance and other unprofessional conduct, [] [Wyckoff] was justified in imposing increasing levels of substantial discipline, up to and including termination." Thus, as Wyckoff argues, its decision to terminate plaintiff was predicated upon a legitimate, independent and non-retaliatory reason, namely plaintiff's culpable misconduct on July 30, 2011 and her past uncooperative behavior, rather than on any complaints plaintiff may have made about safety in the pharmacy (see e.g. Luiso, 65 AD3d at 1298; Blashka v New York Hotel Trades Council, 2013 NY Slip Op 4949 [U], *7-8 [Sup Ct, NY County 2013] DuBois, 6 Misc 3d 1023 [A], 2004 NY Slip Op 51819 [U], *9 [Sup Ct, Kings County 2004], affd 29 AD3d 731[2006] compare Galbriath, 113 AD3d at 649). Further, Wyckoff correctly argues that plaintiff is barred from relitigating the propriety of her termination, i.e. she may not relitigate any matter previously litigated in the prior arbitration hearing (DuBois, 6 Misc 3d 1023 [A], 2004 NY Slip Op 51819 [U], *9 [Sup Ct, Kings County 2004], citing Cooks v New York City Tr. Auth., 289 AD2d 278, 279 [2001] [plaintiff was precluded from relitigating any matter litigated in the prior arbitration proceeding, including whether the misconduct actually occurred where a prior arbitration award, which was confirmed by the court, determined that plaintiff was guilty of misconduct justifying his discharge from employment]). Stated otherwise, plaintiff is bound by the arbitration award to the extent that the issues resolved during the arbitration proceeding are relevant to the instant proceeding (id., citing QDR Consultants & Dev. v Colonia Ins. Co., 251 AD2d 641[1998], lv denied 92 NY2d 814 [1998] accord Azevedo & Boyle Contr. v Greaney Constr., 285 AD2d 571, 572 [2001] [it is well settled that the doctrine of collateral estoppel is applicable to issues resolved in an earlier arbitration proceeding] see also Chiara v Town of New Castle, 61 AD3d 915, 916 [2009] DiLauria v Town of Harrison, 32 AD3d 490, 491 [2006]).

Plaintiff argues that she is not barred from pursuing her Labor Law claim because she was not a direct party to the arbitration and should not be bound by its terms, and because the arbitration hearing did not address her Labor Law claim. As to former claim, when a union arbitrates on behalf of a grievant, the union acts as the agent of that grievant, and the grievant is bound by all claims decided at the arbitration (In re Claim of Ranni, 58 NY2d 715, 717 [1982] Schweizer Aircraft Corp. v Local 1752, Int'l Union, United Auto., Aerospace & Agric. Implement Workers, 29 F3d 83, 87 [2d Cir 1994]). Here, it is undisputed that the Union represented plaintiff at the arbitration hearing, and that plaintiff testified and presented evidence on her own behalf. With respect to plaintiff's latter claim, the arbitration award finally determined the issue of whether plaintiff was properly terminated for cause. As noted above, after a full hearing, the arbitrator determined that plaintiff's termination was based upon her misconduct on her [*12]job, not because she made complaints about the allegedly unsafe conditions in the pharmacy (see Labor Law § 741[5]). Moreover, Wyckoff properly contends that plaintiff chose not to raise her allegations of unsafe conditions in the pharmacy during the arbitration hearing and cannot now relitigate the issue of her termination (Shekhman v New York City Transit Authority, 237 AD2d 592, 593 [1997]). Based upon the foregoing, the complaint must be dismissed (CPLR 3211 [a] [5]).

In any event, defendant argues that the complaint fails to plead a viable cause of action under Labor Law § 741. In this regard, defendant first contends that plaintiff has failed to properly allege that she is an "employee" within the meaning of the statute because none of the allegations of her complaint establish that her job at Wyckoff required her to make judgments about the quality of patient care. Labor Law § 741 (1) (a) defines "employee" as:

"any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration."

"The qualifications to become an endoscopy technician are a high school education and one year of experience in the [*13]medical field. No licensing is required. The primary tasks of an endoscopy technician are to maintain the endoscopy equipment, inventory supplies, assist the licensed practical nurse in the admitting, recovery and discharge process, to monitor vital signs during procedures, and to use a scope to remove polyps as requested by the physician who works the scope on a patient" (Phillips v Ralph Lauren Ctr. for Cancer Care & Prevention 22 Misc 3d 1128[A], 2009 NY Slip Op 50320[U],*1-2 [Sup Ct, NY County 2009]).

"plaintiff's duties included checking the equipment to make sure it was in proper working order, attaching EKG leads and oxygen tubes to patients, taking vital signs, attending "time out" periods with the anesthesiologist, gastroenterologist and patient to ensure that everyone was in agreement on the correct procedure, turning the patient on his or her side so that the anesthesia could be administered by the anesthesiologist, using a snare to remove polyps as directed by the physician who was working the scope, and bringing the patient to recovery" (Phillips v Ralph Lauren Ctr. for Cancer Care & Prevention, 22 Misc 3d 1128[A], 2009 NY Slip Op 50320[U], *6 [Sup Ct, NY County 2009]).

In Webb-Weber (98 AD3d 923 [2012], lv granted 20 NY3d 855 [2013]), the Appellate Division, First Department, relying upon Reddington (11 NY3d 80) and Phillips v Ralph Lauren Ctr. for Cancer Care & Prevention (22 Misc 3d 1128[A], 2009 NY Slip Op 50320[U] [Sup Ct, NY County 2009]), held that the plaintiff, a licensed clinical social worker and chief operating officer of defendant Community Action for Health Services, had failed to allege that she was an employee within the meaning of Labor Law § 741. The plaintiff's complaint alleged that she " secure[d] prescribed medications,' evaluate[d] the need for and arrange[d] for individual patients' appropriate staffing and treatment,' and was personally involved in ensuring that patients received protective and healthful grooming and other health-related treatment'" (id. at 924), but the court held that these allegations established that plaintiff " merely . . . coordinate[d] with those who [performed health care services]'" (id., quoting Reddinton, 11 NY3d at 91).

Here, plaintiff alleges in her complaint that she was working at Wyckoff as a Staff Register Pharmacist, and that "[h]er [main]^[FN3] job responsibilities included compounding medications, compounding chemotherapy and consulting with physicians, nurses and patients" (Complaint, ¶ 8). In plaintiff's attorney's affirmation, counsel avers that plaintiff "received extensive training and went through years of school in order to become a pharmacist;" that in 1992, she graduated Arnold and Marie Schwartz College of Pharmacy;" and that "[i]n 2008, [she] graduated from the University of Florida with a Doctorate of Pharmacy degree." Plaintiff argues that based upon the foregoing, she performed health care services, that the medications and treatments that she prepared daily were used to "directly" treat Wyckoff's patients, and that "[a]s a result of her training and over twenty (20) years of experience, [she] was qualified "to make knowledgeable judgments as to the quality of patient care'" (quoting Reddinton, 11 NY3d at 93).

Despite plaintiff's contentions, and in light of the case law interpreting the statute, the court concurs with Wyckoff, namely that filling prescriptions and compounding medications at the direction of others directly responsible for providing health care service to patients - albeit an important skill requiring professional training - did not require plaintiff to make judgments about the quality of care for the patients who were to receive the medications.Moreover, inasmuch as an employee who secured medications and evaluated patients' need for health care services (Webb-Weber, 98 AD3d 923 [2012]), and another who actually assisted during surgical procedures (Ralph Lauren Ctr. for [*15]Cancer Care & Prevention, 22 Misc 3d 1128[A], 2009 NY Slip Op 50320[U] [Sup Ct, NY County 2009]), were not protected under the statute, plaintiff, who did not directly care for patients, can also not claim such protection. In sum, even crediting the statements made by plaintiff's counsel in plaintiff's opposition, those averments, coupled with the allegations of the complaint, fail to demonstrate that plaintiff was required to make judgments about the quality of patient care to entitle her to the "exceptional and specialized whistleblower protection afforded by section 740" (Reddington, 11 NY3d at 93).

Defendant also argues that even assuming that plaintiff was a covered "employee" within the meaning of the statute, the complaint nevertheless fails to state a cause of action because plaintiff failed to sufficiently allege that she disclosed an activity, policy, or practice that she, "in good faith, reasonably believe[d] constituted improper quality of patient care." " Improper quality of patient care' means, with respect to patient care, any practice, procedure, action or failure to act of an employer which violates 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" (Labor Law § 741 [1] [d]). In this regard, defendant asserts that plaintiff has not identified a specific law, rule, regulation or declaratory ruling she reasonably believed defendant violated, nor has she pled facts supporting any violation. Second, defendant contends that none of the purported compliance issues raised by plaintiff present a substantial danger to public health or safety, but instead only raise a potential concern with respect to the safety of plaintiff and her co-workers. Finally, defendant argues that plaintiff has not alleged a significant threat to the health of any specific patient, as required by the statute.

In opposition, plaintiff asserts that she was only required to allege "a good faith, reasonable belief that there has been a violation of the applicable standards" (Deshpande v TJH Med. Servs., P.C., 52 AD3d 648, 650 [2008], lv denied 12 NY3d 704 [2009]) which she did by "repeatedly pleading her specific complaints to management concerning the laws and hospital standards that Wyckoff violated."

Contrary to her claim, plaintiff has failed to identify the specific law, rule or regulation that she in good faith believed defendant violated. Here, plaintiff alleges that defendant violated Wyckoff's Collective Bargaining Agreement with 1199 SEIU and Wyckoff's own policies; New York Education Law § 6808 (2) (c) and 10 NYCRR § 405.17. As an initial matter, in her opposition, plaintiff has abandoned her claim with respect these rules and policies. In any event, the collective bargaining agreement is not a "law, rule, regulation or declaratory ruling adopted pursuant to law." Further, the complaint does not state any allegations regarding whether the pharmacy displayed its registration, as required by Education Law § 6808 (2) (c), nor does it allege any factual basis for a violation of the registration display requirements of that statute, or facts which support a "good faith, reasonable belief" of such a violation. In any event, as defendant [*16]argues, failing to display a registration would not pose any danger to the public health or safety or the safety of any individual patient. As for 10 NYCRR § 405.17, which sets forth a broad range of "minimum standards" for the provision of pharmaceutical services by covered city hospitals, plaintiff does not allege which standards defendant violated. Further, plaintiff has failed to plead that she complained to a supervisor or a public body and "in good faith, reasonably believed" that defendant violated any specific standard of section 405.17. Although plaintiff argues that she has met her pleading burden by alleging that she made complaints to management concerning the law and hospital standards that defendant violated, plaintiff was required to specifically plead in her complaint the law, rule or regulation that she believes was violated, not the complaints she made to management. Plaintiff failed to do so (see Freese v Willa, 89 AD3d 795, 795-796 [2011] Deshpande, 52 AD3d at 650; Forde v Long Island Jewish Medical Center, Sup Ct, Queens County, October 6, 2004, Kitzes, J., index No. 18005/03), and thus has failed to sufficiently plead this element of the statute.

Defendant argues that even assuming that plaintiff can show that she, in good faith, reasonably believed that the conditions of the pharmacy violated 10 NYCRR § 405.17, she has not alleged and cannot prove that these violations related 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" (Labor Law § 741 [d] [1]). In this regard, defendant contends that plaintiff has not alleged any facts tending to establish that the general public was exposed to any danger, let alone a substantial and specific danger to public health or safety, arising from defendant's allegedly violative conduct. Instead, defendant argues that plaintiff's allegations concern supposed dangers to defendant's employees for which the statute does not afford protection (i.e. pharmacists exposed to hazardous vapors and chemotherapy toxins; plaintiff developed a respiratory condition and a pulmonary disease (Complaint, ¶¶ 12, 21, and 20).

Defendant also asserts that plaintiff's conclusory allegations that the various conditions at the pharmacy "could be harmful to patients" and "created a threat to . . . patients of the hospital," fail to identify a specific patient harmed by Wyckoff's practices, which warrants dismissal of plaintiff's claim.

In opposition, plaintiff argues that her "complaints of, inter alia, contaminated medication and fluid from the ceiling leaking into the pharmacy, create a significant threat to the health of any specific patient as required by NYLL 741 [because] any patient who thereafter ingests or is injected with contaminated chemotherapy and IV compounds has been placed at risk due to Wyckoff's failure to maintain a safe and clean pharmacy."Plaintiff also points out that paragraph 30 of her complaint specifically alleges that "[t]he hazardous conditions created a threat to [her], her co-workers and patients of the hospital."

"[A] complaint asserting a violation of Labor Law § 741 (2) (a) must . . . allege conduct that constitutes improper quality of patient care as defined in Labor Law § 741 [*17](1) (d)" (Mokrue v Comprehensive Care Management Corp., 2013 NY Slip Op 31086 [U], *12 [Sup Ct, New York County 2013]). Specifically, Labor Law § 741 only affords protection where the acts of an employer endanger the health or safety of the general public or a specific patient, not where the danger may potentially threaten the health or safety to an employer's employees or to the plaintiff herself (see e.g. Vail-Ballou Press, Inc. v Tomasky, 266 AD2d 662, 663-664 [1999], quoting Labor Law § 740 (a) (2)] ["the alleged wrongdoing, while perhaps presenting a danger to the health of plaintiff's employees, did not pose a substantial and specific danger to the public health or safety,'" under Labor Law § 740 (a) (2)]^[FN4] Green v Saratoga A.R.C., 233 AD2d 821, 822-823 [1996] ["While the alleged misconduct may have posed a danger to certain individual residents of the facility, plaintiff has completely failed to show that it posed a danger to the public," under Labor Law § 740]). Here, many of the allegations of the complaint concern purported dangers to defendant's employees and plaintiff herself. As defendant correctly argues, section 741 was not meant to protect an employee like plaintiff or employees such as plaintiff's co-workers (Vail-Ballou Press, Inc., 266 AD2d at 663; Green, 233 AD2d at 822-823).

Further, plaintiff's complaints that "contaminated medicine and fluid from the ceiling leaking into the pharmacy, create a significant threat to the health of any specific patient" and that these "hazardous conditions created a threat to . . . patients of the hospital" simply do not allege what the law requires, namely a "significant threat to the health of a specific patient" (Mokrue v Comprehensive Care Management Corp., 2013 NY Slip Op 31086 [U], *12-13 [Sup Ct, New York County 2013], quoting Labor Law § 741 (1) (d)] [Labor Law § 741 claim dismissed because "the alleged misdirection of two prescriptions cannot cause a substantial' danger to the public health or safety" and "[i]t is also uncontroverted that no specific patient lacked for medicine due to [the plaintiff's] [*18]alleged wrongdoing"] compare Doyle v Seton Health Sys., Inc., 28 Misc 3d 1221 [A], 2010 NY Slip Op 51424 [U], *4 [Sup Ct, Rensselaer County 2010] [motion to dismiss Labor Law § 741 claim denied where plaintiff alleged that infants in the hospital nursery were left without any staff supervision, but also that "[a]s a result . . . 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"] Lloyd v Cardiology & Internal Med. of Long Is., PLCC, 16 Misc 3d 1129 [A], 2007 NY Slip Op 51631 [U], *11-12 [Sup Ct, Nassau County 2007], quoting Labor Law § 741 (1) (d), (2)] [denying motion to dismiss Labor Law § 741 claim where pleading established that plaintiff had "a good-faith basis for believing that violations of the Public Health Law had occurred with regard to an illegal prescription of controlled substances . . . which violations would threaten to cause a significant threat to the health of a specific patient' (i.e., the individual alleged to be sexually involved with [defendant physician]) and thus constituted an improper quality of patient care' [] [under] Labor Law § 741 (1) (d), (2)"]). As defendant argues, plaintiff has not pleaded or argued that any specific patient was exposed to the alleged contaminated medication, and thus she has failed to sufficiently plead this element of her Labor Law § 741 claim. In sum, based on the foregoing, the complaint must be dismissed.

Even were the complaint not dismissed, plaintiff's request for compensatory damages and for damages based upon emotional distress and mental anguish would be dismissed.As an initial matter, plaintiff does not dispute that she is limited to statutory remedies. In any event, Labor Law § 741 is enforceable through a civil suit brought pursuant to Labor Law § 740 (4) (d) (Reddington, 11 AD3d at 89). In this regard, the statute states that:

"In any action brought pursuant to [740 (4) (d)], the court may order relief as follows: (a) an injunction to restrain continued violation of this section; (b) the reinstatement of the employee to the same position held before the retaliatory personnel action, or to an equivalent position; (c) the reinstatement of full fringe benefits and seniority rights; (d) the compensation for lost wages, benefits and other remuneration; and (e) the payment by the employer of reasonable costs, disbursements, and attorney's fees."

Finally, plaintiff does not dispute that a jury trial is not available for a section 741 claim (id.). As noted above, Section 740 (5) provides that "the court may order relief as follows . . ." (id., see also Pal v New York Univ., 2010 US Dist LEXIS 5360, *3-4 [ND NY Jan. 25, 2010]).

Based upon the foregoing, the motion of defendant to dismiss the complaint with prejudice is granted.

This constitutes the decision and order of the court.

March 13, 2014E N T E R,

J. S.C.