Opinion
Index No. 157184/2023 Motion Seq. No. 001
03-01-2024
MONIFAH LANDELL, Plaintiff, v. LIFE BRIDGE DENTAL PLLC, DOE CORPORATIONS 1-5 Defendant.
Unpublished Opinion
PART 34M
MOTION DATE 10/16/2023
DECISION + ORDER ON MOTION
HON. DAKOTA D. RAMSEUR. JUDGE
The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18 were read on this motion to/for DISMISS.
In July 2023, plaintiff Monifah Landell commenced this action against her former employer, defendant Life Bridge Dental PLLC (hereinafter, "Life Bridge"), for unlawful retaliation under New York Labor Law §§ 740 and 741, alleging that Life Bridge first transferred her, then constructively discharged her after she complained to Human Resources about unsanitary, health-related practices that possibly endangered patients. In mot. seq. 001, Life Bridge moves to dismiss the complaint pursuant to CPLR 3211 (a) (4), (a) (5), and (a) (7). Plaintiff opposes the motion in its entirety. For the following reasons, Life Bridge's motion to dismiss pursuant to CPLR 3211 (a) (7) is granted.
BACKGROUND
In or around October/November 2021, Life Bridge hired plaintiff as a Dental Assistant and assigned her to work at its newly opened Park Slope office. (NYSCEF doc. no. 2 at ¶ 15, 22, complaint.) Plaintiff alleges that Life Bridge opened this office without proper sanitation and sterilization inventory to properly protect patients, which led management to instruct its staff "to reuse sanitation pouches and unsterile and not sanitary wrapping paper on dental instruments that were supposed to be sanitized and sterile before use on patients." (Id. at ¶ 24.) Further, plaintiff alleges that Life Bridge staffed the Park Slope office with employees who did not have the requisite experience, meaning she took on additional assignments that made her a target for disdain from these other assistants. (Id. at ¶ 23.) Thereafter, plaintiff complained to Life Bridge management about hostility in the workplace and requested a transfer to either its Cobble Hill, Upper West Side, or Rockefeller Center office. (Id. at ¶¶ 25.) Though Life Bridge initially denied her request (id. at ¶26), on December 10, 2021, plaintiff complained about the use of unsanitary and unsterile instruments and again about the hostility from coworkers. (Id. at ¶ 27.) After this second complaint, Life Bridge approved plaintiffs transfer, assigning her to its Grand Central Station office. (Id. at 34-35.)
When she reported to this location, its Assistant Manager Tyra Reyes told her the office "did not want drama" and that she "worked very hard not to have drama" (Id. at ¶ 36.) Christina Dewan, the office's General Manager, reiterated the point that "1 don't want any issues here" in a staff meeting while directing her attention at plaintiff. (Id. at ¶ 37.) According to plaintiff, management treated her worse than other employees by (1) not scheduling her for additional shifts, (2) "encourag[ing] staff at Grand Central to ignore her and make her feel isolated," (3) marking her up "late" when the employee handbook indicated that staff should be given a warning, and (4) marking her requested sick day as an unexcused absence. (Id. at ¶¶ 38-40.) Lastly, Dewan allegedly yelled at plaintiff toward the end of January for taking a phone call, telling her "I can't even look at [plaintiff s] face right now" and "you [plaintiff] disgust me." (Id. at¶4L)
In July 2022, plaintiff brought a similar action against Life Bridge ("Landell I"), asserting causes of action under New York Labor Law §§741 and 215. By Decision and Order dated March 9, 2023, this court [Rosado, J ] granted Life Bridge's motion to dismiss pursuant to CPLR 3211 (a) (7). The court explained that § 741 (1) (a)'s definition of "Employee" includes those healthcare employees who are qualified, and required, to make quality-of-patient care judgments. (NYSCEF doc. no. 17 at 5-6, 3/9/223 Decision and Order, NYSCEF index no, 155865/2022.) Since plaintiff only alleged that she performed "routine" healthcare services alongside dentists, the court found that she did not establish that she was an "employee" covered by § 741. (Id.) (NYSCEF doc. no. 17, notice of appeal.) Thus, the court dismissed plaintiffs complaint without prejudice and without reaching whether she had sufficiently pled that she engaged in protected activity or that defendant retaliated against her. Plaintiff filed a Notice of Appeal on March 17, 2023.
In the instant motion to dismiss, Life Bridge argues that dismissal is warranted under CPLR 3211 (a) (4) because Landell I represents another action pending between the same parties for the same cause of action; under CPLR 3211 (a) (5) because the doctrine of collateral estoppel prevents plaintiff from relitigating her Labor Law § 741 action; and under CPLR 3211 (a) (7) for failure to sufficiently plead that she engaged in protected activity and Life Bridge retaliated against her for doing so. Plaintiff opposes the motion in full.
DISCUSSION
Dismissal Under CPLR 3211 (a) (4) and (a) (5)
Dismissal under CPLR 3211 (a) (4) is warranted where "there is another action pending between the same parties for the same cause of action in a court of any state or the United States." (CPLR 3211 [a] [4].) Here, there is no other action pending: a search of NYSCEF reveals that the Landell I action has been marked as case disposed, and plaintiff, in opposition to this motion, submitted a "Withdrawal of Notice of Appeal" filed with the Appellate Division, First Department. (See NYSCEF doc. no. 15, withdrawal.) Contrary to Life Bridge's position in its reply memorandum of law, since plaintiff has voluntarily withdrawn her appeal, she is not required to execute a stipulation of discontinuance for Landell I. Accordingly, the Court finds dismissal under CPLR 3211 (a) (4) unwarranted.
As to CPLR 3211 (a) (5), Life Bridge argues the doctrine of collateral estoppel precludes plaintiff from asserting its § 741 claim since Justice Rosado already determined that "plaintiff does not have a claim under NYLL § 741." (See NYSCEF doc. no. 17 at 7.) This argument is unavailing. Collateral estoppel prevents a party from relitigating an issue decided in the prior proceeding that is identical and decisive in the second proceeding, so long as it had a full and fair opportunity to contest the issue at the prior proceeding. (See Rojas v Romanoff, 186 A.D.3d 103, 108 [1st Dept 2020].) Moreover, the issue previously litigated must have been necessary to support a valid and final judgment on the merits. (Steward Family LLC v Stewart, 184 A.D.3d 487, 491 [1st Dept 2020].) Pleading deficiencies, like the ones Justice Rosado found in Landell I, do not constitute valid and final judgments on the merits. (Komolov v Segal, 96 A.D.3d 513,513 [1st Dept 2012] ["the dismissal of the prior action should have been without prejudice since the claims in that action were dismissed for pleading deficiencies and not on the merits"], citing Avins v Federation Empl. &Guidance Serv., Inc., 67 A.D.3d 505, 506 [1st Dept 2009] ["Since the prior complaint was dismissed for failure to state a cause of action without any indication that the dismissal was intended to be with prejudice or on the merits, the doctrine of res judicata does not bar the timely commencement of this action"].) Here, notwithstanding the "plaintiff does not have a claim under NYLL § 741" quotation, Justice Rosado properly and explicitly dismissed plaintiffs complaint without prejudice. Accordingly, the doctrine of collateral estoppel does not bar plaintiff from asserting a § 741 claim herein.
Dismissal Under CPLR 3211 (a) (7)
On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and give the plaintiff the benefit of every possible favorable inference. (Leon v Martinez, 84 N.Y.2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 N.Y.3d 759, 764 [2015].) Nonetheless, conclusory allegations-claims consisting of bare legal conclusions with no factual specificity-are insufficient to survive a motion to dismiss.' (See Godfrey v Spano, 13 N.Y.3d 358, 373 [2009]; Barnes v Hodge, 118 A.D.3d 633, 633-634 [1st Dept 2014].) A court's inquiry is limited to assessing the legal sufficiency of the plaintiffs pleadings; accordingly, its only function is to determine whether, from facts alleged and inferences drawn therefrom, plaintiff has stated the elements of a cognizable cause of action. (JF Capital Advisors, 25 N.Y.3d at 764; Stall Games, LLC v Brody, 1 A.D.3d 247, 250 [1st Dept 2003].)
Protected Activity
Labor Law § 741, known as the Health Care Whistleblower Law, offers special protection to healthcare employees who "perform health care services. (Minogue v Good Samaritan Hosp., 100 A.D.3d 64, 69 [2d Dept 2012].) The statute provides, "no employer shall take retaliatory action against any employee because the employee ... discloses or threatens to disclose to a supervisor, to a public body ... an activity, policy, or practice of the employer ... that the employee, in good faith, reasonably believes constitutes improper quality of patient care." (Labor Law § 741 [2] [a].) In turn, "Improper quality of patient care" is defined as any violation of law, rule, or regulation "where such violation relates to matters which may present a substantial and specific danger to public health or safety." (Labor Law § 741 [d].) Although a plaintiff does not need to specify the precise statute or regulation violated, they must identify the particular activities, policies or practices that their employer allegedly engaged in so as to provide the employer with notice of the complained-of conduct. (Koh Maack v Wyckoff Hgts. Med. Ctr., 140 A.D.3d 1055, 1057 [2d Dept 2016]) Moreover, they need not plead an actual statutory or regulatory violation-only that they held a good-faith, reasonable belief that their employer violated applicable healthcare standards. (See Minogue, 100 A.D.3d at 70, citing Pipia v Nassau County, 34 A.D.3d 644, 644 [2d Dept 2006].)
Here, Life Bridge relies on Bontempo v N. Shore LIJ-Huntington Hosp. (2019 NYLJ LEXIS 3816 at * 8 [Sup. Ct. Nassau County 2019]) for the proposition that plaintiffs allegations do not meet the statutory threshold for a violation of § 741 since "personality conflicts and a single instance of alleged recirculation of alleged unsterile dental instruments cannot form the basis" of such a claim. (See NYSCEF doc. no. 10 at 17-18, def, memo of law.) This is because "plaintiff makes no allegations that these purported safety issues occurred at any other time or in any other [Life Bridge] office." (Id.) The Court finds otherwise. Plaintiff alleges that (1) Life Bridge staff was "instructed" to reuse sanitation instruments, and (2) she sent an email to Human Resources explaining that "everyone in the office is upset that we don't have sterilization pouches, wrapping paper, and we have resorted to reusing the wrapping paper." (NYSCEF doc. no. 2 at ¶¶ 24-27.) In contrast to Bontempo, where the alleged protected activity consisted of a report the plaintiff made to her employer regarding a coworker's "horrible mistake," these allegations imply an ongoing policy or practice of using unsanitary dental instruments throughout plaintiffs employment in the Park Slope office-not, as Life Bridge would have it, a single isolated incident. Accordingly, the Court finds such allegations are sufficient to allege a good-faith, reasonable belief that Life Bridge violated a law, rale, or regulation and that such violation presented a substantial and specific danger to public health.
Retaliatory Conduct
Section 741 defines "retaliatory action" as "the discharge, suspension, demotion, penalization, or discrimination against an employee or other adverse employment action taken against an employee in the terms and conditions of employment." (Labor Law § 741 [g].) Here, as Life Bridge contends, plaintiffs lateral transfer to the Grand Central office (after she requested said transfer) cannot be considered retaliatory since plaintiff has not alleged that the terms or conditions of her employment changed. Nor is there is a suggestion that her transfer affected her title or pay grade, the hours she worked, her duties and responsibilities, the opportunity to work overtime, etc. (See Farad v New York State Off. Of Mental Health, 2013 NY Mise. LEXIS 4853 at * 15-16 [Sup. Ct. NY County 2013], citing Eugenio v Walder, 2009 U.S. Dist. LEXIS 56450 [SDNY 2009] [lateral transfer of plaintiff was not an adverse action for purposes of retaliation because it is not sufficient to deter a person of ordinary firmness]; Silvis v City of New York, 95 A.D.3d 665, 665 [1st Dept 2012] [holding that plaintiff did not suffer adverse employment action where plaintiff retained the terms and conditions of her employment and salary remained the same].) Plaintiffs reliance on Gruber v Glam (2020 NY Mise. LEXIS 9380 at *7-8 [Sup. Ct. NY County 2020]) is misplaced: while the plaintiff therein complained that defendant had "yelled at her or ignored her," the court noted that the retaliatory action that plaintiff sought redress for was her termination. As such, the case does not offer support for finding retaliation in plaintiffs transfer to the Grand Central office.
Because plaintiffs transfer does not constitute a retaliatory action under § 741, her claim must be premised on her allegation that Life Bridge constructively discharged her. "An employee is constructively discharged when her employer, rather than discharging her directly, intentionally creates a work atmosphere so intolerable that she is forced to quit." (Morris v Schroder Capital Mgmt. Int'l, 7 N.Y.3d 616, 621 [2006] [internal quotations omitted]; Murphy v Department of Educ. of the City of N.Y., 155 A.D.3d 637, 640 [2d Dept 2017].) A plaintiff who advances a constructive discharge claim must plead facts that tend to show deliberate and intentional acts of the employer that created intolerable working conditions, which would compel a reasonable person to resign. (Polidori v Societe Generale Groupe, 39 A.D.3d 404, 405 [1st Dept 2007].) In Murphy, the plaintiff, a schoolteacher, alleged that her principal "required [her] to teach a class that she was not qualified to teach," that the principal left her name off an art fair newsletter, and that on two separate occasions she slammed her hand on the table and screamed at her (Murphy, 155 A.D.3d at 640-641.) To the Second Department, when viewed in their totality, the allegations were insufficient to support a constructive discharge claim based on a hostile work environment. (Id.) Here, the alleged acts that make up plaintiff s constructive discharge claim-that she had to ask for additional shifts, that she was told "we don't want drama" in various ways, that she was yelled at on one occasion, that management marked her late (when she was late) despite the guidelines in the employee handbook-are similar in kind and degree as those in Murphy. Consequently, the Court finds that plaintiff s allegations do not create issues of fact as to whether a reasonable person would be compelled to resign under her working conditions.
Although defendant cited Murphy in its memorandum of law in support of its motion, plaintiff failed to address it in opposition. Instead, she relied on two cases that are clearly in apposite. In Cascalenda v City of New York, the plaintiff complained about employer conduct that was, by orders of magnitude, significantly more "intolerable" than the conduct alleged herein. (Cascalenda, 2021 NY Slip Op 30936 [U] at * 2 [where, as a New York City police officer, the NYPD subjected him to random drug testing for marijuana use, surveilled his movements, took him into custody and detained him over night].) In DiMarco v Apple Fin. Holdings, the plaintiff objected to changes in the terms of her employment. She complained that one of her bosses refused to acknowledge her presence, assigned her menial tasks, overwhelmed her with work, passed her up for training for another supervisory role, and spoke to her in a hostile manner. (DiMarco, 2018 NY Mise. LEXIS 13119 at *1-2 [Sup. Ct. Queens County].) The Court specifically found that "an adverse employment action may be indicated by, among other things, significantly diminished material responsibilities or other indices." (Id. at *3 [internal quotations omitted].) As described above, plaintiff has not asserted these kinds of material changes to her responsibilities. Since she has failed to plead facts that suggest her transfer constitutes a retaliatory action or that she was constructively discharged, the Court finds dismissal under CPLR 3211 (a) (7) appropriate.
Accordingly, for the foregoing reasons, it is hereby
ORDERED that the branch of defendant Life Bridge Dental PLLC's motion to dismiss pursuant to CPLR 3211 (a) (7) is granted and plaintiff Monifah Landell's complaint is dismissed; and it is further
ORDERED that counsel for plaintiffs shall serve a copy of this order, along with notice of entry, on all parties within twenty (20) days of entry.
This constitutes the Decision and Order of the Court