Skelly v. N.Y.C. Health & Hosps. Corp.

• Citation: 161 A.D.3d 476,75 N.Y.S.3d 178
• Decision Date: 08 May 2018
• Docket Number: 6491,Index 22361/16E
• Court: New York Supreme Court — Appellate Division
• Parties: Michael SKELLY, Plaintiff–Appellant, v. NEW YORK CITY HEALTH & HOSPITALS CORPORATION, et al., Defendants–Respondents.

161 A.D.3d 476

75 N.Y.S.3d 178

Michael SKELLY, Plaintiff–Appellant,

v.NEW YORK CITY HEALTH & HOSPITALS CORPORATION, et al., Defendants–Respondents.

6491

Index 22361/16E

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

ENTERED: MAY 8, 2018

Filosa Law Firm, PLLC, New York (Gregory N. Filosa of counsel), for appellant.

Zachary W. Carter, Corporation Counsel, New York (Jonathan A. Popolow of counsel), for respondents.

Sweeny, J.P., Renwick, Mazzarelli, Gesmer, Singh, JJ.

Order, Supreme Court, Bronx County (Mary Ann Brigantti, J.), entered December 19, 2016, which granted defendants' CPLR 3211(a)(7) motion to dismiss plaintiff's complaint alleging violation of Labor Law § 741, unanimously reversed, on the law, without costs, and the motion denied.

Plaintiff Michael Skelly, a former attending physician in Lincoln Hospital's Department of Infectious Diseases, alleges that he was terminated from his position in retaliation for his objection to or refusal to comply with defendants' alleged policy or practice of not testing the residential drinking water of patients diagnosed with Legionnaire's disease for the Legionella bacteria during an outbreak of the disease in the summer of 2015 ( Labor Law § 741[2][b] ). He disagrees with the public position taken by the New York City Department of Health and Mental Hygiene that the bacteria was found only in cooling towers and not in residential drinking water, and reasonably believes that the practice of not testing the residential drinking water of the patients constituted "improper quality of patient care."

Plaintiff has sufficiently pleaded the notice requirement set forth in Labor Law § 741(3). Under that provision, an employee may not bring an action "unless the employee has brought the improper quality of patient care to the attention of a supervisor and has afforded the employer a reasonable opportunity to correct such activity, policy or practice" ( Labor Law § 741[3] ). Although the statutory language expressly contemplates an affirmative act of objection to a policy or practice, strict compliance with the requirement here "would not serve the purpose of the statute" ( Tipaldo v. Lynn, 26 N.Y.3d 204, 212, 21 N.Y.S.3d 173, 42 N.E.3d 670 [2015] ). In view of the allegations that plaintiff's supervisors had directed him to stop testing residential drinking water of the patients, and to not associate himself with the hospital if he insisted on continuing to do so, any express objections to the practice or...