Bordan v. North Shore University Hospital

• Decision Date: 14 August 2000
• Citation: 275 A.D.2d 335,712 N.Y.S.2d 155
• Court: New York Supreme Court — Appellate Division
• Parties: DENNIS L. BORDAN, Appellant,<BR>v.<BR>NORTH SHORE UNIVERSITY HOSPITAL et al., Respondents.

275 A.D.2d 335

712 N.Y.S.2d 155

DENNIS L. BORDAN, Appellant,

v.NORTH SHORE UNIVERSITY HOSPITAL et al., Respondents.

Decided August 14, 2000.

Bracken, J.P., Ritter and S. Miller, JJ., concur.

Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the motion which were to dismiss the fifth cause of action to recover damages pursuant to Labor Law § 740 and the sixth cause of action to recover damages for tortious interference with contract and substituting therefor provisions denying those branches of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The plaintiff alleges that he suffered retaliatory personnel action after he raised concerns with an officer of the defendant North Shore University Hospital (hereinafter the hospital) about the quality of medical care provided to two surgical patients by a colleague, the defendant Nadji Abumrad. The plaintiff commenced this action alleging that such retaliatory personnel action by the hospital constituted a breach of contract, and violated Labor Law § 740 (the so-called whistleblower's law). Further, he alleged that Dr. Abumrad tortiously interfered with his contract with the hospital. After issue was joined, the defendants moved, inter alia, to dismiss the complaint. In the order appealed from, the Supreme Court granted that relief. We modify.

In opposition to that branch of the defendants' motion which was to dismiss his cause of action to recover damages pursuant to Labor Law § 740 on the ground that he failed to adequately plead the law, rule, or regulation allegedly violated (see, Labor Law § 740 [2]), the plaintiff demonstrated that "facts essential to justify opposition to [the] motion" may exist but could not be stated without disclosure of information concerning the two surgical patients at issue. Prior to such disclosure, the dismissal of the plaintiff's Labor Law § 740 claim was premature (CPLR 3211 [d]; see, Amigo Foods Corp. v Marine Midland Bank-NY, 39 NY2d 391; Halmar Corp. & Defoe Corp. v Hudson Founds., 212 AD2d 505; Cantor v Levine, 115 AD2d 453). However, the plaintiff is not entitled to disclosure concerning a prior disciplinary proceeding before the Department of Health involving Dr. Abumrad. The plaintiff did not allege that the retaliatory personnel action at issue resulted from the disclosure or threatened disclosure of such a proceeding, or of the charges underlying it.

The plaintiff's cause of action against the hospital to recover damages for breach of contract arose from the Labor Law § 740 cause of action, and, therefore, was properly dismissed pursuant to Labor Law § 740 (7) (see, Pipas v Syracuse Home Assn., 226 AD2d 1097; Kraus v Brandstetter, 185 AD2d 302). However, the cause of action to recover damages for tortious interference with contract asserted against Dr. Abumrad was separate and independent from the Labor Law § 740 claim, and should not have been similarly dismissed (see, Kraus v Brandstetter, supra).

The plaintiff's remaining contentions lack merit.

Santucci, J., concurs in part and dissents in part and votes to modify the order by deleting the provision thereof granting that branch of the motion which was to dismiss the sixth cause of action to recover damages for tortious interference with contract, and substituting therefor a provision denying that branch of the motion and otherwise affirming the order, with the following memorandum:

I agree with...