Opinion
No. 27666/11.
2012-08-1
Dorota BORAWSKI, M.D., Plaintiff, v. Ovadia ABULAFIA, M.D. and Suny Downstate Medical Center, Defendants.
Eric T. Schneiderman, Esq., for Defendants. Dean T. Cho, Esq., for Plaintiff.
Eric T. Schneiderman, Esq., for Defendants. Dean T. Cho, Esq., for Plaintiff.
AUGUSTUS C. AGATE, J.
The following papers numbered 1 to 6 read on this motion by defendants to dismiss the complaint.
+---------------------------------------------+ ¦PAPERS ¦NUMBERED¦ +------------------------------------+--------¦ ¦Notice of Motion–Affidavits–Exhibits¦1–3 ¦ +------------------------------------+--------¦ ¦Affirmation in Opposition–Exhibits ¦4–6 ¦ +------------------------------------+--------¦ ¦Defendants' Memorandum of Law ¦ ¦ +------------------------------------+--------¦ ¦Plaintiff's Memorandum of Law ¦ ¦ +------------------------------------+--------¦ ¦Defendants' Reply Memorandum of Law ¦ ¦ +---------------------------------------------+
Upon the foregoing papers it is ordered that this motion by defendants to dismiss the complaint is decided as follows:
This action arises out of the termination of plaintiff's employment and fellowship at defendant SUNY Downstate Medical Center (“Downstate”) in January 2011. Plaintiff was a medical resident at defendant Downstate in the Department of Obstetrics and Gynecology from 2005–2009. After completing her residency, in August 2009, plaintiff accepted a position as a trainee in the Department's Fellowship program. Simultaneously, plaintiff was appointed a Clinical Assistant Professor/part time OB–GYN attending physician. Defendant Ovadia Abulafia, M.D. was the chairman of the Obstetrics and Gynecology Department at Downstate.
Plaintiff alleges that beginning in August 2010, her on-call hours were increased from three calls per month to four. Plaintiff asserts that subsequently, in December 2010, her on-call hours were increased again, to five calls per month, consisting of two 24 hour weekend on-call shifts and three 16 hour weekday on-call shifts, for a total of 96 on-call hours per month. On January 4, 2011, plaintiff wrote to defendant Abulafia, complaining of the increase in her on-call hours. She specifically stated in her letter that she works more than the 80 hours permitted by any training program. In the letter, plaintiff questioned whether this was a safe practice for patient care as well as her own personal safety and requested a written letter absolving her of any legal responsibility as a result of the “lack of rest.” On January 5, 2011, upon his request, plaintiff met with defendant Abulafia. At this meeting, which plaintiff tape-recorded, defendant Abulafia informed her that she would no longer be taking any calls. He further informed her that he did not know what was going to happen with her fellowship. Plaintiff thereafter wrote to various persons employed by Downstate regarding the termination of her on-call duties. Plaintiff met with defendant Abulafia to discuss her fellowship program, and pursuant to a letter dated January 25, 2011, defendant Abulafia advised plaintiff that her Fellowship program was terminated due to “programmatic issues.” Plaintiff asserts, though, that the termination was really an “unlawful retaliation” for her complaint regarding her hours. Plaintiff thereafter filed a complaint against Downstate with the New York State Division of Human Rights and New York City Commission on Human Rights.
On December 9, 2011, plaintiff commenced the instant action against defendants Downstate and Abulafia. The complaint contains causes of action sounding in breach of contract, wrongful termination, defamation per se, intentional infliction of emotional distress, violation of the New York City Human Rights Law, violation of the New York State Human Rights Law and promissory estoppel. Plaintiff asserts, inter alia, that her on-call hours constituted a violation of the American Board of Obstetrics and Gynecology Rules, which limit duty hours to 80 hours per week, inclusive of all in-house call activities. Plaintiff also asserts that her on-call hours constituted a violation of section 405 of the New York State Department of Health Code, commonly referred to as the “Libby Zion Law.” Defendants now move to dismiss the complaint on the grounds of lack of subject matter jurisdiction pursuant to CPLR 3211(a)(2) and the failure to state a cause of action pursuant to CPLR 3211(a)(7).
It is well settled that the Court of Claims has exclusive jurisdiction over claims for money damages against the State and its agencies, departments and employees acting in their official capacity in the exercise of governmental functions. (N.Y. Const, art. VI, § 9; Court of Claims Act §§ 8, 9[2]; Morell v. Balasubramanian, 70 N.Y.2d 297, 300 [1987];Peterson v. New York City Dept. of Envtl. Protection, 66 AD3d 1027, 1028–1029 [2009].)
In the matter at hand, Downstate is a subdivision of the State University of New York (Education Law § 352[3] ) and, thus, all the causes of action pled in the complaint against defendant Downstate, except for the sixth cause of action for violation of the New York State Human Rights Law, must be brought in the Court of Claims. ( see Power Cooling Inc. v. State Univ. Of New York, 284 A.D.2d 317, 317 [2001];Automated Ticket Sys., Ltd. v. Quinn, 70 A.D.2d 726 [1979].) A cause of action to recover damages for violation of the New York States Human Rights Law may be maintained against the State or an agent thereof in the Supreme Court, as well as in the Court of Claims. (Koerner v. State of New York, 62 N.Y.2d 442, 448–449 [1984];Kolomick v. New York Air Natl. Guard, 219 A.D.2d 367, 371 [1996]. Thus, all the causes of action herein, except the sixth cause of action, are dismissed as against defendant Downstate. (CPLR 3211[a][2].)
Defendants also seek to dismiss the sixth cause of action on the ground of failure to state a cause of action pursuant to CPLR 3211(a)(7).
When a party moves to dismiss a complaint pursuant to CPLR 3211(a)(7), the standard is whether the pleading states a cause of action, not whether the proponent of the pleading has a cause of action. (Sokol v. Leader, 74 AD3d 1180, 1180–1181 [2010]; see Guggenheimer v. Ginzburg, 43 N.Y.2d 268, 275 [1977].) “In considering such a motion, the court must accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” (Sokol v. Leader, 74 AD3d at 1181; see Bokhour v. GTI Retail Holdings, Inc., 94 AD3d 682 [2012];Nonnon v. City of New York, 9 NY3d 825, 827 [2007];Leon v. Martinez, 84 N.Y.2d 83, 87–88 [1994.) “Whether a plaintiff can ultimately establish its allegations is not part of the calculus.” (Sokol v. Leader, 74 AD3d at 1181, quoting EBC I, Inc. v. Goldman Sachs & Co., 5 NY3d 11, 19 [2005] .)
In the sixth cause of action, plaintiff alleges that defendants violated Executive Law § 296, which, inter alia, forbids an employer from retaliating against any person who has opposed an unlawful employment practice or filed a complaint. In order to establish a claim for unlawful retaliation, a plaintiff must show that she has (i) engaged in protected activity, (ii) her employer was aware that she participated in such protected activity, (iii) she suffered an adverse employment action based upon the protected activity and (iv) there is a causal connection between the protected activity and the adverse action. (Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 313 [2004];Murphy v. Kirkland, 88 AD3d 795, 796 [2011].) In the case at bar, contrary to defendants' assertions, the complaint, when given the benefit of every favorable inference, pleads a cause of action for a violation of Executive Law § 296 as against defendant Downstate.
The court will now address the branch of the motion to dismiss the complaint as against defendant Abulafia.
Actions against state officers for conduct undertaken in an official capacity and in the exercise of an official governmental function are deemed to be claims against the State and, thus, can only be brought in the Court of Claims. (Morell v. Balasubramanian, 70 N.Y.2d 297, 300 [1987];Woodward v. State of New York, 23 AD3d 852, 856 [2005].) A suit against a state officer will be held to be one which is really against the State when it arises from actions or determinations of the officer made in his official role and involves rights asserted, not against the officer individually but against the state. (Morell v. Balasubramanian, 70 N.Y.2d at 301.) Where, however, an action against a state officer is in tort for damages arising from the breach of a duty owed individually by such officer directly to the injured party, the state is not the real party in interest, even though it could be held secondarily liable for the tortious acts under the doctrine of respondeat superior. (Morell v. Balasubramanian, 70 N.Y.2d at 301.)
In the case at bar, the allegations in the complaint do not arise from any duty owed individually by defendant Abulafia to the plaintiff. Rather, defendant's actions arose out of his official role as the chairperson of the Obstetrics and Gynecology Department at Downstate. (see Monreal v. New York State Dept. of Health, 38 AD3d 1118, 1119 [2007];Martin v. Lanigan, 150 A.D.2d 899, 901–902 [1989].) The complaint asserts that defendant Abulafia was responsible for Downstate's breach of duty. Thus, all causes of action as against defendant Abulafia, except the sixth cause of action, must be brought in the Court of Claims.
Accordingly, this motion by defendants to dismiss the complaint is granted to the extent that all causes of action of the complaint, except the sixth cause of action, are dismissed.