Klein v. Metro. Child Servs., Inc.

• Decision Date: 14 November 2012
• Citation: 2012 N.Y. Slip Op. 07636,100 A.D.3d 708,954 N.Y.S.2d 559
• Parties: Lisa KLEIN, et al., respondents, v. METROPOLITAN CHILD SERVICES, INC., etc., et al., appellants.
• Court: New York Supreme Court — Appellate Division

100 A.D.3d 708

954 N.Y.S.2d 559

2012 N.Y. Slip Op. 07636

Lisa KLEIN, et al., respondents,

v.METROPOLITAN CHILD SERVICES, INC., etc., et al., appellants.

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

Nov. 14, 2012.

David Lenefsky, New York, N.Y. (Georgeanne O'Keefe of counsel), for appellants.

Andrew J. Schatkin, Jericho, N.Y., for respondents.

RANDALL T. ENG, P.J., REINALDO E. RIVERA, L. PRISCILLA HALL, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for violation of Labor Law § 740 and intentional infliction of emotional distress, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Vaughan, J.), dated March 23, 2011, as denied their motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and the defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint is granted.

The plaintiff Lisa Klein (hereinafter the plaintiff), who was formerly employed as the Director of the defendant Metropolitan Child Services, Inc./ Vernon Avenue Children's School, LLC (hereinafter Metropolitan), commenced this action, inter alia, to recover damages for violation of Labor Law § 740, alleging that she was unlawfully terminated from her position in retaliation for “reporting illegal and incorrect activities on the part of [the defendants Michael Koffler and Kevin McCarthy]”, who are, respectively, the Chief Executive Officer and Chief Financial Officer of Metropolitan. The plaintiff also asserted a cause of action alleging intentional infliction of emotional distress based upon her allegation that she “suffered extreme and grievous mental distress [as a result of] the extreme and outrageous behavior of” Koffler and McCarthy. The plaintiff Menachem Klein asserted a derivative cause of action seeking damages for the alleged loss of companionship and services of his wife. The defendants' motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action was denied by the Supreme Court without explanation.

Labor Law § 740 prohibits an employer from taking “any retaliatory personnel action against an employee” who discloses to a supervisor or public body “an activity, policy or practice of the employer that is in violation of law, rule or regulation which violation creates and presents a substantial and specific danger to the public health or safety” (Labor Law § 740[2][a] ). There must be an actual violation of a law, rule, or regulation. An employee's “good faith, reasonable belief that a violation occurred is insufficient” to satisfy the statute ( Nadkarni v. North Shore–Long Is. Jewish Health Sys., 21 A.D.3d 354, 355, 799 N.Y.S.2d 574;see Bordell v. General Elec. Co., 88 N.Y.2d 869, 871, 644 N.Y.S.2d 912, 667 N.E.2d 922;Berde v. North Shore–Long Is. Jewish Health Sys., Inc., 50 A.D.3d 834, 835, 855 N.Y.S.2d 656;Khan v. State Univ. of N.Y. Health Science Ctr. at Brooklyn, 288 A.D.2d 350, 734 N.Y.S.2d 92). Additionally, the protection afforded by Labor Law § 740(2) “is triggered only by a violation of a law, rule or regulation that creates and presents a substantial and specific danger to the public health and safety” ( Remba v. Federation Empl. & Guidance Serv., 76 N.Y.2d 801, 802, 559 N.Y.S.2d 961, 559 N.E.2d 655;see Pipia v. Nassau County, 34 A.D.3d 664, 665, 826 N.Y.S.2d 318;Nadkarni v. North Shore–Long Is. Jewish Health Sys., 21 A.D.3d at 355, 799 N.Y.S.2d 574;Khan v. State Univ. of N.Y. Health Science Ctr. at Brooklyn, 288 A.D.2d at 350, 734 N.Y.S.2d 92;Easterson v. Long Is. Jewish Med. Ctr., 156 A.D.2d 636, 637, 549 N.Y.S.2d 135).

Here, although the complaint must be given the benefit of all favorable inferences at this stage in the proceedings ( see Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511;Morales v. Copy Right Inc., 28 A.D.3d 440, 813 N.Y.S.2d 731), it nevertheless fails to state a cause of action. Other than the conclusory allegation that “[by] Head Start Law, Mr. Koffler is not allowed to engage in nepotism,” the complaint does not cite to any law, rule, or regulation which allegedly was actually violated by the defendants. Moreover, the complaint makes no allegation that the defendants' conduct constituted a substantial and specific danger to the public health or safety ( see Hughes v. Gibson Courier Servs. Corp., 218 A.D.2d 684, 684–85, 630 N.Y.S.2d 552;Lamagna v. New York State Assn. for the Help of Retarded Children, 158 A.D.2d 588, 589, 551 N.Y.S.2d 556). Indeed, inasmuch as the complained of conduct related mainly to alleged financial improprieties, it does not “satisfy the element of a threat to public health and safety and, thus, cannot sustain a cause of action alleging a violation of Labor Law § 740” ( Tomo v. Episcopal Health Servs. Inc., 85 A.D.3d 766, 768, 925 N.Y.S.2d 563;see Remba v. Federation Employment & Guidance Serv., 76 N.Y.2d at 802, 559 N.Y.S.2d 961, 559 N.E.2d 655;Pipia v. Nassau County, 34 A.D.3d at 666, 826 N.Y.S.2d 318;Smith v. Angel Guardian Home, 263 A.D.2d 476, 692 N.Y.S.2d 724;Kaganowicz v. Booth Mem. Med. Ctr., 215 A.D.2d 530, 531, 627 N.Y.S.2d 948;Lamagna v. New York State Assn. for the Help of Retarded Children, 158 A.D.2d at 589, 551 N.Y.S.2d 556).

Similarly, the complaint does not state a cause of action to recover damages for intentional infliction of emotional distress. The elements of intentional infliction of emotional distress are (1) extreme and outrageous conduct; (2) the intent to cause, or the disregard of a substantial likelihood of causing, severe emotional distress; (3) causation; and (4) severe emotional distress ( see Howell v. New York Post Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699;Andrews v. Bruk, 220 A.D.2d 376, 376, 631 N.Y.S.2d 771). The subject conduct must be “ ‘so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly intolerable in a civilized...