Zielonka v. Town of Sardinia

• Decision Date: 08 August 2014
• Citation: 2014 N.Y. Slip Op. 05719,991 N.Y.S.2d 491,120 A.D.3d 925
• Parties: Marvin ZIELONKA, Plaintiff–Respondent, v. TOWN OF SARDINIA, Town Council of Town of Sardinia and Town of Sardinia Town Supervisor, Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

120 A.D.3d 925
991 N.Y.S.2d 491
2014 N.Y. Slip Op. 05719

Marvin ZIELONKA, Plaintiff–Respondent,
v.
TOWN OF SARDINIA, Town Council of Town of Sardinia and Town of Sardinia Town Supervisor, Defendants–Appellants.

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

Aug. 8, 2014.

[991 N.Y.S.2d 492]

Webster Szanyi LLP, Buffalo (Jeremy A. Colby of Counsel), for Defendants–Appellants.

Hodgson Russ LLP, Buffalo (Patrick J. Hines of Counsel), for Plaintiff–Respondent.

PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS AND WHALEN, JJ.

MEMORANDUM:

Plaintiff was employed as code enforcement officer for defendant Town of Sardinia (Town) until his termination by defendant Town Council of Town of Sardinia (Council). Following his termination, plaintiff commenced this action against the Town, the Council, and defendant Town of Sardinia Town Supervisor (Supervisor) under Civil Service Law § 75–b, the public employees' whistleblower statute, alleging, inter alia, that his “termination was in retaliation for his refusal to perform” unauthorized functions and for his “act [ing] as a whistle-blower in reporting” those unauthorized directives “to the Town's outside attorney and others.” Supreme Court denied defendants' pre-answer “motion to dismiss and/or for summary judgment,” and defendants appeal.

We agree with defendants that the court erred in denying their motion insofar as it sought dismissal of the complaint

[991 N.Y.S.2d 493]

against the Council and the Supervisor, and we therefore modify the order accordingly. Civil Service Law § 75–b protects a “public employee” from discharge or discipline by a “public employer” (§ 75–b [2][a] ). The statute applies only to governmental entities that actually employ the plaintiff ( see§ 75–b [1][a]; Frank v. State of N.Y., Off. of Mental Retardation & Dev. Disabilities, 86 A.D.3d 183, 188, 924 N.Y.S.2d 634; Moore v. County of Rockland, 192 A.D.2d 1021, 1024, 596 N.Y.S.2d 908). Furthermore, the Town cannot be held liable for punitive damages absent an express provision in the statute ( see Krohn v. New York City Police Dept., 2 N.Y.3d 329, 335–336, 778 N.Y.S.2d 746, 811 N.E.2d 8; Drisdom v. Niagara Falls Mem. Med. Ctr., 53 A.D.3d 1142, 1142, 861 N.Y.S.2d 919). We therefore further modify the order by granting that part of the motion seeking dismissal of the second cause of action against the Town.

We reject defendants' contention, however, that the court erred insofar as it denied their motion to dismiss the first cause of action against the Town for failure to state a cause of action. The public employees' whistleblower statute prevents a public employer from, inter alia, terminating a public employee “because the employee discloses to a governmental body information ... which the employee reasonably believes to be true and...