Lore v. New York Racing Assn. Inc., 2006 NY Slip Op 50968(U) (N.Y. Sup. Ct. 5/23/2006)
| Decision Date | 23 May 2006 |
| Docket Number | 007686-04. |
| Parties | STEVEN LORE and REGINA LORE, Plaintiffs, v. NEW YORK RACING ASSOCIATION INC., Defendants. |
| Court | New York Supreme Court |
Plaintiffs, Steven and Regina Lore, commenced this action on June 4, 2004 alleging retaliatory personnel action by a public employer, intentional infliction of emotional distress, breach of contract, defamation of character harassment and loss of consortium. Plaintiffs have moved this court, pursuant to CPLR § 3025, for Leave to Amend their complaint to assert as an alternative claim, a violation under New York Labor Law § 740. Further, plaintiff seeks to amend the first and fifth causes of action to further clarify their allegations as to all claims and specifically as to harassment, to include a claim under Executive Law § 290. Defendants have cross-moved for an order, pursuant to CPLR § 3211(a)(7), dismissing the plaintiff's complaint on the grounds that they have failed to state a cause of action. Each party has filed an Affirmations in Opposition to the respective motions.
Plaintiffs seek leave to amend their complaint dated June 3, 2004. Defendants filed an Answer on July 23, 2004. Plaintiffs filed this motion for leave to amend their complaint to add a claim under New York Labor Law § 740, commonly referred to as the Whistleblowers' Statue, which applies to private employers, alleging that based upon information that was revealed at depositions, "Defendant claimed that NYRA is not a public employer." Plaintiffs also seeks to amend the fifth cause of action to included a claim under New York's Human Rights Law, Executive Law Section § 290, et. seq. Plaintiffs assert that such amendments are meritorious, will cause no prejudice to the plaintiff since discovery is not yet complete, and will cause no surprise to the defendant since the amendments are based upon facts already in the original pleadings.
Defendant opposes the motion alleging that the proposed amendments are devoid of merit and plaintiff has failed to set forth a reasonable excuse for the delay in moving to amend seventeen months since the filing of the original complaint.
Labor Law § 740 was enacted "to protect only the reporting of a specific kind of illegal activity, namely, one that creates and presents a substantial and specific danger to the public health or safety'" (Leibowitz v. Bank Leumi Trust Company of New York, 152 AD2d 169). Section 740 was intended to deal and prevent situations "such as those involving the pesticide plant at Bhopal, the accident at Three Mile Island, manufacture and distribution of Thalidomide, failure of the Challenger space shuttle and the like ..." (Id. citing Givens, Practice Commentaries, McKinney's Cons. Laws of NY, Book 30, Labor Law § 740, at 546). "[T]he protection offered by the language of Labor Law § 740 ... is still limited to violations which constitute a danger to the public health or safety" (Id.). Although highly criticized in both court decisions and legal commentaries, the New York Whistleblower Statute only provides protection when a violation of a law, rule, or regulation creates and presents a substantial and specific danger to the public health or safety (Id. citations omitted). Plaintiff alleges that here, horses that have sustained previous injuries may become hostile and present a danger to the public and, the presence of an individual named Paone, with an alleged past history of violence, creates an environment of danger wherein threats to the public health and welfare are imminent (Plaintiff's Memorandum of Law in Opposition to Defendant's Motion, pg. 5). Plaintiff's own uncorroborated and unsubstantiated opinion speculating about conduct which may occur in the future "amounts to no more than a reasonable belief of a possible violation', which, without proof, will not support a cause of action to recover damages under Labor Law § 740" (Khan v. State University of New York Health Science Center at Brooklyn, 288 AD2d 350 citing Bordell v. General Elec. Co., 88 NY2d 869; cf., Rodgers v. Lenox Hill Hosp., 211 AD2d 248; see also Leibowitz v. Bank Leumi Trust Company of New York, supra). Furthermore, plaintiff's allegations regarding jockeys who cheat on their weight and allegations regarding race fixing may constitute violations of specific statutes, however the alleged acts do not create a "substantial and specific" damage to the public health (see Leibowitz v. Bank Leumi Trust Company of New York, supra, citing Vella v. United Cerebral Palsy of NY City, 141 Misc 2d 976). Plaintiff's application to replead his complaint to assert a cause of action based on Labor Law § 740 is denied.
Plaintiff moves to amend his complaint to clarify that the religiously biased comments created a hostile work environment in violation of New York's Human Rights Law, Executive Law § 290. Plaintiff alleges that he was regularly subjected to the terms, "Jew Boy" and "the Jewish guy," and he was told that the individual who took his place during his absence was not liked because of his religious beliefs. Plaintiff states that he suffered by having to endure comments about his replacement being an "Orthodox Jew" (see Plaintiff's Proposed Amended Complaint). Defendant opposes the amendment claiming that plaintiff cannot establish a prima facie case of a religious hostile work environment.
To establish a claim of a hostile work environment, plaintiff must show that the work environment was permeated with discriminatory intimidations, ridicule and insult which was so severe or pervasive as to alter the conditions of the victim's employment and create an abusive working environment (see Little v. National Broadcasting Company, 210 F.Supp 2d 330 [S.D.NY 2002]). The plaintiff must demonstrate more than a few isolated incidents of discriminatory conduct, occasional remarks, even when directed at plaintiff, do not suffice (see Forrest v. Jewish Guild for the Blind, 309 AD2d 546; Francis v. Chemical Banking Corp., 62 F Supp 2d 948; Brown v. Coach Stores, Inc., 163 F3d 706). Furthermore, plaintiff must allege how and in what manner the condition of his employment was altered based on the alleged discriminatory acts (see Forrest v. Jewish Guild for the Blind, 309 AD2d 546). Plaintiff has failed to make such a showing. Therefore, plaintiff's request to replead his complaint to add a claim pursuant to New York's Human Rights Law, Executive Law § 290 is denied.
"In assessing the legal sufficiency of a claim, the Court may consider those facts alleged in the complaint, documents attached as an exhibit therefor or incorporated by reference.... and documents that are integral' to the plaintiff's claims, even if not explicitly incorporated by reference." (Pisani v. Westchester County Health Care Corporation., ___ F. Supp2d ___, 2006 WL 851176 (S.D.NY); see also John v. N.Y.C. Dep't of Corrs., 183 F. Supp2d 619).
The first cause of action alleges retaliatory action by a public employer in wrongfully terminating the plaintiff, Steven Lore, after plaintiff reported alleged wrongdoing to the Attorney General. Defendants move to dismiss this cause of action brought pursuant to Civil Service Law § 75-b, alleging that the plaintiff has failed to set forth a cause of action in that defendant is not a public employer, that the plaintiff is preempted from bringing this complaint pursuant to a collective bargaining agreement between defendant and Teamsters Union Local 814 and that plaintiff has failed to allege that he provided notice to the defendant of any improper action by them before contacting the Attorney General.
Both parties argue that the issue of NYRA's status as a public or private entity has been litigated and decided. However, looking at the cases cited by both parties, this court notes that the Court of Appeals specifically states that "the interesting "state action" question need not be reached or decided" (Jacobson v. New York Racing Association Inc., 33 NY2d 144). It is clear that defendants are governed by certain government regulations although they may not be considered a public entity. The court finds that a determination of whether or not defendant is a public or private employer would be a question of fact to be determined by a jury.
As to defendant's assertion that plaintiff has failed to allege that he provided notice to the defendant of any improper action, plaintiff's affidavit does state, although vague as to date, time and place, that he reported that Mr. Paone was dangerous and that he was harassing plaintiff (see Plaintiff's Affidvit ¶ 5). As well, defendant itself provides documents regarding investigations undertaken by NYRA pursuant to complaints made by plaintiff (see Defendant's Amended Notice of Cross-Motion, Exhibit B).
Defendant states that plaintiff is preempted from bringing this claim pursuant to the collective bargaining agreement. Defendant has provided the collective bargaining agreement subject to dismissal under a final and binding arbitration provision contained in a collectively negotiated agreement, the employee must assert the protections afforded by § 75-b(2) (Id.). The provisions of § 75-b are inapplicable where a collective bargaining agreement containing grievance procedures exists (see Mottironi v. Axelrod, 133 AD2d 948). Defendant has met his burden of establishing a prima facie case entitling him to dismissal.
In opposition to defendant's motion, plainti...
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