Rose v.

• Decision Date: 28 August 2014
• Court: New York Supreme Court — Appellate Division
• Parties: William C. ROSE, Plaintiff–Appellant, v. NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant–Respondent.

122 A.D.3d 76

991 N.Y.S.2d 602

2014 N.Y. Slip Op. 06013

William C. ROSE, Plaintiff–Appellant,

v.NEW YORK CITY HEALTH AND HOSPITALS CORPORATION, Defendant–Respondent.

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

Aug. 28, 2014.

Arnold E. DiJoseph, P.C., New York (Arnold E. DiJoseph and Arnold E. DiJoseph III of counsel), for appellant.

Michael A. Cardozo, Corporation Counsel, New York (Janet L. Zaleon and Kristin M. Helmers of counsel), for respondent.

ROLANDO T. ACOSTA, J.P., DIANNE T. RENWICK, KARLA MOSKOWITZ, HELEN E. FREEDMAN, PAUL G. FEINMAN, JJ.

FEINMAN, J.

Following his termination by defendant, plaintiff commenced this whistleblower action (Civil Service Law § 75–b), without first serving a notice of claim. The complaint seeks back pay, reinstatement, costs and attorney's fees. The motion court, characterizing the complaint as one seeking to vindicate a private injury, rather than a public right, granted defendant's motion to dismiss for failure to comply with the notice of claim provision of General Municipal Law § 50–e(1)(a). On appeal, plaintiff argues that, at a minimum, he should be allowed to sever and retain his claim for reinstatement because it is an equitable remedy that does not require a notice of claim. We agree, and now modify the motion court's order accordingly.

I

The following factual allegations are gleaned from the complaint. From approximately August 4, 2008 through May 13, 2011, plaintiff was employed as an administrative manager of the engineering department of Harlem Hospital (the hospital), which is managed by defendant New York City Health and Hospitals Corporation (NYCHHC). Throughout the course of his employment plaintiff received satisfactory job evaluations, and his annual performance reviews for 2009 and 2010 rated him “fully competent.” In October 2010, NYCHHC undertook a multi-million dollar acquisition of new “chillers” for the hospital.Plaintiff further alleges that in March 2011, around the same time Eric Morales became plaintiff's direct supervisor, temporary chillers, part of the air conditioning units that regulate temperature, were rented for use while the new, permanent chillers were being installed. The goal was for the new chillers to be operational by March 15, 2011. Plaintiff became aware that although the new chillers were not working properly, Dr. John Palmer, the hospital's Executive Director, and Dr. Stephen Lawrence, the hospital's Deputy Executive Director, were pressuring the contractor to remove the temporary chillers by April 17, 2011.

Plaintiff believed there was the potential for significant and serious violations of state and federal health standards to occur if the hospital proceeded to rely on the new, not-yet-fully-operational chillers. Because he thought his concerns were not being heard by Morales, plaintiff emailed Palmer and Lawrence directly on April 13, 2011. The next day he was summoned to Palmer's officer for a meeting with Palmer, Lawrence and Morales. At the meeting, he was allegedly berated as an “idiot” for sending the email. Two weeks later, on April 29, 2011, he was presented with a negative written job evaluation, and a termination letter from human resources. Although plaintiff submitted a written rebuttal, his termination was confirmed by defendant on May 26, 2011.

II

At the outset, it should be noted that the motion court did not reach the branch of the motion to dismiss that challenged whether the allegations in the complaint, if true, state a viable whistleblower claim, and nor do we, as that issue is not before us on this appeal. Rather, the focus of this appeal is whether plaintiff's claim is completely barred based on his conceded failure to serve a timely notice of claim.

The Whistleblower Law forbids retaliatory personnel action by public employers against their employees who disclose to a governmental body information regarding violations of regulations that would present a specific danger to public health or safety, or about what the employee believes to be an improper governmental action (Civil Service Law § 75–b[1][d]; [2][a] ). A whistleblower claim, by definition, seeks both equitable and monetary damages. An employee may seek relief for such wrongdoing including an injunction to restrain continued violation of the law, reinstatement to the same or equivalent position as before, with full fringe benefits and seniority rights, compensation for lost wages, benefits and other remuneration, and reasonable costs, disbursements and attorney's fees (Civil Service Law § 75–b[3][c], referencing Labor Law § 740[5] ).

Defendant contends that plaintiff's complaint was properly dismissed pursuant to this Court's decision in Yan Ping Xu v. New York City Dept. of Health, 77 A.D.3d 40, 906 N.Y.S.2d 222 (1st Dept.2010). In Xu, the self-represented petitioner brought a whistleblower claim, seeking reinstatement, back pay, and removal of an unsatisfactory rating; she had not filed a timely notice of claim. The petitioner argued, inter alia, that a retaliatory firing suit is akin to an employment discrimination claim brought under the Human Rights Law (Executive Law § 296), the latter of which does not fall under the categories of claims requiring that notice be served as set forth in General Municipal Law § 50–i ( see e.g. Sebastian v. New York City Health & Hosps. Corp., 221 A.D.2d 294, 294, 634 N.Y.S.2d 114 [1st Dept.1995] [because General Municipal Law § 50–i “define[s] the torts for which a notice of claim is required only as personal injury, wrongful death, or damage to property and not torts generally,” discrimination claimants do not need to file notices of claim when subject only to this notice provision]; see also Picciano v. Nassau County Civ. Serv. Commn., 290 A.D.2d 164, 170, 736 N.Y.S.2d 55 [2d Dept.2001] [explaining that because the Human Rights Law is not a cause of action subject to the General Municipal Law notice requirement, there is no need to serve a notice of claim as a condition precedent to commencing an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50–e and 50–i provide the sole notice of claim criteria] ).¹ The Xu Court declined to consider the Whistleblower Law as similar to the Human Rights Law, pointing out that “[j]urisprudence has made clear that a notice of claim is required as a condition precedent in cases similar to petitioner's” ( Xu at 48, 906 N.Y.S.2d 222). Xu also applied Mills v. County of Monroe, 59 N.Y.2d 307, 464 N.Y.S.2d 709, 451 N.E.2d 456 (1983), cert. denied464 U.S. 1018, 104 S.Ct. 551, 78 L.Ed.2d 725 (1983) [holding that a claim brought under the Human Rights Law against a county must be preceded by a notice of claim, unless the plaintiff seeks to vindicate a public right] ), to find that the plaintiff in Xu also did not fall under the Mills exception, as Xu's claim sought only private remedies ( see Xu, 77 A.D.3d at 48, 906 N.Y.S.2d 222, citing Mills, 59 N.Y.2d at 311–312, 464 N.Y.S.2d 709, 451 N.E.2d 456).

We need not comment on whether Xu's reliance on Mills was well placed or not, except to note that because the defendant in Mills was a county, any claim against it was governed by the notice requirement of County Law § 52. County Law § 52(1) applies to a much broader scope of cases than does the General Municipal Law, as it requires a notice of claim for, inter alia, “any [ ] claim for damages arising at law or in equity, alleged to have been caused ... because of any misfeasance, ... or wrongful act on the part of the county.” ² Thus, in Mills, if the petitioner had sought to vindicate a public right, no notice of claim would have been needed, despite the notice requirement of County Law § 52. This exception is an important protection for civil rights claims from dismissal based on a procedural ground.³ However, where no notice of claim is required based on the governing notice statute, the issue of whether a claimant seeks only individual relief or public rights, seemingly has no real applicability. Unlike in Mills, in jurisdictions where no notice of claim is required prior to commencing an action, the issue of whether a claimant seeks private relief or not is simply not a question that comes into play. ⁴

Nonetheless, we are constrained by Xu to hold that a party bringing a whistleblower claim, and seeking the full range of remedies, must file a notice of claim pursuant to General Municipal Law §§ 50–e, 50–i, even though the Whistleblower Statute is not a tort statute and technically does not fall within the categories described in General Municipal Law § 50–i.⁵ As Xu acknowledged, there is a body of case law holding that a notice of claim is required when seeking to commence a whistleblower suit. These cases all cite Mills or case law following Mills, and most of them also consider whether the claim sought private or public vindication ( see e.g. Roens v. New York City Tr. Auth., 202 A.D.2d 274, 609 N.Y.S.2d 6 [1st Dept.1994] [notice of claim was required pursuant to broad notice provision of Public Authorities Law § 1212; individual rights]; Matter of McGovern v. Mount Pleasant Cent. Sch. Dist., 114 A.D.3d 795, 980 N.Y.S.2d 522 [2d Dept.2014], lv. granted23 N.Y.3d 903, 2014 N.Y. Slip Op. 71973, 2014 WL 1887294 [May 13, 2014] [notice of claim was required pursuant to broad notice provision of Education Law § 3813(1); individual rights]; Thomas v. City of Oneonta, 90 A.D.3d 1135, 934 N.Y.S.2d 249 [3d Dept.2011] [action was time-barred, but no notice of claim had been filed pursuant to General Municipal Law § 50–e]; Rigle v. County of Onondaga, 267 A.D.2d 1088, 701 N.Y.S.2d 222 [4th Dept.1999], lv. denied94 N.Y.2d 764, 708 N.Y.S.2d 53, 729 N.E.2d 710 [2000] [notice of claim was required pursuant to County Law § 52] ).

Plaintiff argues in essence that if the money damages included in the relief sought in a whistleblower case are the “reason” a notice of claim is required, then he should be allowed to...