Hastie v. State Univ. of N.Y.

• Decision Date: 10 June 2010
• Citation: 902 N.Y.S.2d 239,74 A.D.3d 1547
• Parties: James HASTIE, Appellant, v. STATE UNIVERSITY OF NEW YORK (SUNY) College of Agriculture & Technology at Morrisville, Also Known as Morrisville State College, Respondent.
• Court: New York Supreme Court — Appellate Division

902 N.Y.S.2d 239

74 A.D.3d 1547

James HASTIE, Appellant,

v.STATE UNIVERSITY OF NEW YORK (SUNY) College of Agriculture & Technology at Morrisville, Also Known as Morrisville State College, Respondent.

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

June 10, 2010.

Satter & Andrews, L.L.P., Syracuse (Matthew E. Bergeron of counsel), for appellant.

Andrew M. Cuomo, Attorney General, Albany (Frank Brady of counsel), for respondent.

Before: MERCURE, J.P., SPAIN, LAHTINEN, MALONE JR. and KAVANAGH, JJ.

SPAIN, J.

Appeal from an order of the Supreme Court (Cerio Jr., J.), entered November 9, 2009 in Madison County, which granted defendant's motion to dismiss the complaint.

Plaintiff was employed by defendant and, as part of his job duties, oversaw defendant's development program and fundraising efforts. In the course of that work, plaintiff received an Internal Revenue Service tax form (IRS form 8283) prepared by a third party concerning property donated to defendant; the form required an acknowledgment from defendant that it had received the property. Plaintiff became concerned about the veracity of statements regarding the property's appraised value and took his concerns to defendant's president and its vice-president for administrative services, both of whom directed him to sign the form. He refused to do so and his employment was terminated shortly thereafter. Plaintiff then commenced this action and asserted-as his sole cause of action-a retaliatory discharge claim under Civil Service Law § 75-b (the whistleblower statute). Defendant successfully moved to dismiss the complaint, and plaintiff now appeals.

Accepting the allegations in the complaint as true, as we must on a motion to dismiss, we nevertheless affirm ( see Lazic v. Currier, 69 A.D.3d 1213, 1213-1214, 893 N.Y.S.2d 373 [2010] ). Adverse employment action may not be taken against a public employee based upon his or her disclosure of information to specified entities "which the employee reasonably believes to be true and reasonably believes constitutes an improper governmental action" (Civil Service Law § 75-b [2][a][ii]; see Civil Service Law § 75-b [2][b];Brohman v. New York Convention Ctr. Operating Corp., 293 A.D.2d 299, 299-300, 740 N.Y.S.2d 312 [2002] ). Improper governmental action consists of an illegal "action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent's official duties" (Civil Service Law § 75-b [2][a] ). As a result, the only potentially improper governmental action here is not the submission of the allegedly flawed tax form by a third party but, rather, the directives from the alleged wrongdoers, defendant's president and vice-president, that plaintiff sign the receipt section of...