Summary
In Radice, the plaintiff alleged that the defendant wrongfully terminated her employment as a nurse discharge planner because she reported the abuse of an elderly patient by a personal care worker/home aide employed by a third party.
Summary of this case from Berweger v. County of OrangeOpinion
July 31, 1995
Appeal from the Supreme Court, Kings County (Vaccaro, J.).
Ordered that the order is reversed, on the law, with costs, the motion is granted, and the complaint is dismissed.
The plaintiff's complaint alleges that the defendant wrongfully terminated her employment as a nurse discharge planner because she reported the abuse of an elderly patient by a personal care worker/home aide employed by a third party. The alleged abuse occurred in the home of the patient while the patient was in the care of her family and the personal care worker/home aide.
The defendant appeals from the denial of its motion to dismiss the complaint on the ground that it fails to state a cause of action. The Supreme Court erred in denying the motion and in finding that the complaint states a cause of action to recover damages for retaliatory discharge pursuant to Labor Law § 740.
In order to establish a violation of Labor Law § 740, a plaintiff must prove (a) that the activity, policy, or practice that she objected to, refused to participate in, disclosed, or threatened to disclose was an activity, policy, or practice of the employer, (b) that the activity, policy, or practice constituted an actual violation of a law, rule, or regulation (see, Bordell v. General Elec. Co., 208 A.D.2d 219; Connolly v Macklowe Real Estate Co., 161 A.D.2d 520; Remba v. Federation Empl. Guidance Serv., 149 A.D.2d 131, affd 76 N.Y.2d 801), and (c) that the violation was one that creates and presents a substantial and specific danger to the public health or safety (see, Remba v. Federation Empl. Guidance Serv., 76 N.Y.2d 636; Kern v. DePaul Mental Health Servs., 152 A.D.2d 957; Leibowitz v Bank Leumi Trust Co., 152 A.D.2d 169).
The activity that the plaintiff allegedly reported was not an activity of the defendant or of any of its employees. Rather, the alleged abuse was the act of a personal care worker/home aide employed by a third party who is not even a party to this action.
In view of our conclusion, we find it unnecessary to consider the parties' remaining contentions. Bracken, J.P., Balletta, Pizzuto and Krausman, JJ., concur.