Gardner v. Continuing Developmental Services, Inc.

Majority

p. 838

Jo-Anne Gardner, Appellant, v Continuing Developmental Services, Inc., Respondent.

[739 NYS2d 302]

Appeal from an order of Supreme Court, Monroe County (Frazee, J.), entered July 25, 2001, which granted defendant’s motion to dismiss the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this action alleging that defendant violated Labor Law § 740 by terminating her employment in retaliation for her disclosure of neglect and abuse of developmentally disabled residents by other staff members at an intermediate care facility operated by defendant. Supreme Court properly granted defendant’s motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. “Under any reasonable reading of the statute and under any view of the facts of this case,

p. 839

defendant’s alleged violations of law, if any, did not create and present a substantial and specific danger to the public health and safety” (Kern v DePaul Mental Health Servs., 152 AD2d 957 , 957, lv denied 74 NY2d 615 ; see, Green v Saratoga A.R.C., 233 AD2d 821 , 822-823; Easterson v Long Is. Jewish Med. Ctr., 156 AD2d 636 , 637, lv denied 76 NY2d 704 , rearg denied 76 NY2d 889 ). Plaintiff’s challenge to the constitutionality of Labor Law § 740, raised for the first time on appeal, is not properly before us (see, Roberts v Gross, 100 AD2d 540 , 541). Present—Green, J.P., Hayes, Hurlbutt, Kehoe and Burns, JJ.

Cases cited

Kern v. DePaul Mental Health Services, Inc. 152 AD2d 957 N.Y. App. Div. 1989-07-12 at 957 p. 839
Green v. Saratoga A. R. C. 233 AD2d 821 N.Y. App. Div. 1996-11-27 at 822-823 p. 839
Easterson v. Long Island Jewish Medical Center 156 AD2d 636 N.Y. App. Div. 1989-12-26 at 637 p. 839
Roberts v. Gross 100 AD2d 540 N.Y. App. Div. 1984-03-12 at 541 p. 839

Statutes and regulations cited

Labor Law p. 838, p. 839