Rose v. New York City Health & Hospitals Corp.

tions that would present a specific danger to public health or safety, or about what the employee believes to be an improper governmental action (Civil Service Law § 75-b ^[1] [d]; [2] [a]). A whistleblower claim, by definition, seeks both equitable and monetary damages. An employee may seek relief for such wrongdoing including an injunction to restrain continued violation of the law, reinstatement to the same or equivalent position as before, with full fringe benefits and seniority rights, compensation for lost wages, benefits and other remuneration, and reasonable costs, disbursements and attorney’s fees (Civil Service Law § 75-b [3] [c], referencing Labor Law § 740 [5]).

Defendant contends that plaintiffs complaint was properly dismissed pursuant to this Court’s decision in Yan Ping Xu v New York City Dept. of Health ( 77 AD3d 40 [1st Dept 2010]). In Xu, the self-represented petitioner brought a whistleblower claim, seeking reinstatement, back pay, and removal of an unsatisfactory rating; she had not filed a timely notice of claim. The petitioner argued, inter alia, that a retaliatory firing suit is akin to an employment discrimination claim brought under the Human Rights Law (Executive Law § 296), the latter of which does not fall under the categories of claims requiring that notice be served as set forth in General Municipal Law § 50-i (see e.g. Sebastian v New York City Health & Hosps. Corp., 221 AD2d 294 , 294 [1st Dept 1995] [because General Municipal Law § 50-i “define(s) the torts for which a notice of claim is required only as personal injury, wrongful death, or damage to property and not torts generally,” discrimination claimants do not need to file notices of claim when subject only to this notice provision]; see also Picciano v Nassau County Civ. Serv. Commn., 290 AD2d 164 , 170 [2d Dept 2001] [explaining that because the Human Rights Law is not a cause of action subject to the General Municipal Law notice requirement, there is no need to serve a notice of claim as a condition precedent to commencing an action based on the Human Rights Law in a jurisdiction where General Municipal Law §§ 50-e and 50-i provide the sole notice of claim criteria]).^[1] The Xu Court declined to consider the Whistle-blower Law as similar to the Human Rights Law, pointing out

that “^Jurisprudence has made clear that a notice of claim is required as a condition precedent in cases similar to petitioner’s” ( Xu at 48). Xu also applied Mills v County of Monroe ( 59 NY2d 307 [1983], cert denied 464 US 1018 [1983] [holding that a claim brought under the Human Rights Law against a county must be preceded by a notice of claim, unless the plaintiff seeks to vindicate a public right]), to find that the plaintiff in Xu also did not fall under the Mills exception, as Xu’s claim sought only private remedies (see Xu, 77 AD3d at 48 , citing Mills, 59 NY2d at 311-312 ).

We need not comment on whether Xu’s reliance on Mills was well placed or not, except to note that because the defendant in Mills was a county, any claim against it was governed by the notice requirement of County Law § 52. County Law § 52 (1) applies to a much broader scope of cases than does the General Municipal Law, as it requires a notice of claim for, inter alia, “any . . . claim for damages arising at law or in equity, alleged to have been caused . . . because of any misfeasance, ... or wrongful act on the part of the county.”^[2] Thus, in Mills, if the petitioner had sought to vindicate a public right, no notice of claim would have been needed, despite the notice requirement of County Law § 52. This exception is an important protection for civil rights claims from dismissal based on a procedural ground.^[3] However, where no notice of claim is required based on the governing notice statute, the issue of whether a claimant seeks only individual relief or public rights seemingly has no real applicability. Unlike in Mills, in jurisdictions where no no

tice of claim is required prior to commencing an action, the issue of whether a claimant seeks private relief or not is simply not a question that comes into play.^[4]

Nonetheless, we are constrained by Xu to hold that a party bringing a whistleblower claim, and seeking the full range of remedies, must file a notice of claim pursuant to General Municipal Law §§ 50-e and 50-i, even though the whistleblower statute is not a tort statute and technically does not fall within the categories described in General Municipal Law § 50-i.^[5] As Xu acknowledged, there is a body of case law holding that a notice of claim is required when seeking to commence a whistléblower suit. These cases all cite Mills or case law following Mills, and most of them also consider whether the claim sought private or public vindication (see e.g. Roens v New York City Tr. Auth., 202 AD2d 274 [1st Dept 1994] [notice of claim was required pursuant to broad notice provision of Public Authorities Law § 1212; individual rights]; Matter of McGovern v Mount Pleasant Cent. Sch. Dist., 114 AD3d 795 [2d Dept 2014], lv granted 23 NY3d 903 [2014] [notice of claim was required pursuant to broad notice provision of Education Law § 3813 (1); individual rights]; Thomas v City of Oneonta, 90 AD3d 1135 [3d

Dept 2011] [action was time-barred, but no notice of claim had been filed pursuant to General Municipal Law § 50-e]; Rigle v County of Onondaga, 267 AD2d 1088 [4th Dept 1999], lv denied 94 NY2d 764 [2000] [notice of claim was required pursuant to County Law § 52]).

Plaintiff argues in essence that if the money damages included in the relief sought in a whistleblower case are the “reason” a notice of claim is required, then he should be allowed to discontinue his claims for money damages and go forward with his claims in equity, and thereby negate any need for a notice of claim. Severing of causes of action in this manner has not been directly addressed by this Court in the context of whistleblower actions. Defendant’s brief does not address this argument, and when questioned at oral argument, it relied on its arguments that the complaint must be dismissed based on the holding in Xu, and because plaintiff seeks only private remedies.

Although Xu has made clear that whistleblower jurisprudence is distinct from Human Rights Law jurisprudence, the dearth of whistleblower cases addressing the severance question requires us to look at how this issue has been treated in other contexts involving equitable claims. Many actions have been brought against municipalities seeking to remedy a continuing wrong, and have included “incidental” money damages; in jurisdictions where the applicable notice of claim statute does not expressly include equitable actions, there is no need to file a notice of claim prior to commencing an action (see Fontana v Town of Hempstead, 13 NY2d 1134 [1964], affg 18 AD2d 1084 [2d Dept 1963] [compliance with the notice requirements of the General Municipal Law and of Town Law § 67 was not necessary where an action was brought in equity to restrain a continuing act; demand for money damages was incidental]; Bass Bldg. Corp. v Village of Pomona, 142 AD2d 657 , 659 [2d Dept 1988] [seeking injunctive relief requiring Village to continue building a road; claims for compensatory and punitive damages were “incidental”]; Watts v Town of Gardiner, 90 AD2d 615 , 615-616 [3d Dept 1982] [claims seeking abatement of the nuisance and a permanent injunction, as well as incidental monetary damages, did not require filing a notice of claim under General Municipal Law §§ 50-e, 50-i];^[6] see also Johnson v City of Peekskill, 91 AD3d 825 , 826 [2d Dept 2012] [as the claim was subject only to the

due process claims pursuant to 42 USC § 1983 did not require filing a notice of claim under Education Law § 3813; petition was dismissed as it was time-barred], affd 18 NY3d 457 [2012];^[7] see also Civil Serv. Empls. Assn., Inc. v Board of Educ. of City of Yonkers, 87 AD3d 557 [2d Dept 2011] [claimant seeking equitable relief of specific performance of a collective bargaining agreement, and not money damages, was not required to serve a notice of claim under Education Law § 3813 (1)]). We note that the Second Department has taken a more narrow approach in recent years (compare Ruocco v Doyle, 38 AD2d 132 , 133, 135 [2d Dept 1972] [notice of claim not needed when seeking declaratory judgment that the purported resignation of the plaintiff, a school principal with tenure, was null and void, as well as “merely incidental” money damages], with Matter of McGovern, 114 AD3d at 795-796 [stating rule that “notice of claim requirement does not apply when a litigant seeks only equitable relief,” but as the petitioner in that proceeding sought reinstatement and back pay after being terminated, a notice of claim was required under Education Law § 3813], and Matter of Sheil v Melucci, 94 AD3d 766 , 767-768 [2d Dept 2012] [stating rule that the notice requirements under Education Law § 3813 “do not apply when a litigant seeks only equitable relief,” but holding in this article 78 proceeding that as the petitioner sought both equitable relief and recovery of damages following her dismissal, she was required to file a notice of claim]; see also Matter of Stevens v Board of Educ. of McGraw Cent. School Dist., 261 AD2d 698 , 699 [3d Dept 1999] [“mere fact that (petitioner) seeks only reinstatement to his former position, as opposed to reinstatement coupled with back pay and benefits, does not exempt him from the requirements of Education Law § 3813, as a review of the petition makes clear that petitioner nonetheless primarily is seeking to enforce a private right”]).

The discussions if not the holdings in cases brought in New York seem to establish a rule that when a case is brought against a municipality or governmental agency and sounds in equity, no

notice of claim is required unless the notice requirement specifically includes equitable claims. Claims in equity also seeking substantial damages, on the other hand, will be dismissed or may be severed and the monetary claims dismissed if no notice of claim has been filed. Claims brought under the Whistleblower Law are something of an exception: although the usual common relief, i.e., reinstatement, is equitable in nature, a notice of claim seems to be required even under narrow notice provisions such as General Municipal Law § 50-i.

In Donas v City of New York ( 62 AD3d 504 , 505 [1st Dept 2009]), the whistleblower plaintiff sought only back salary and damages for harm to personal reputation. Donas was dismissed because the retaliatory acts allegedly took place more than a year before the plaintiff commenced his action, and the statute of limitations provided under Civil Service Law § 75-b had run; his notice of claim was also untimely, and because it did not allege any retaliatory actions that occurred within the previous 90 days of its filing, there was no new cause of action.^[8] As discussed above, we have held in Xu that the law is that a whistleblower claim seeking full relief including reinstatement and back pay is required to file a notice of claim, unless the relief sought is for the public good rather than the individual (see Xu, 77 AD3d at 48 ). We note that there was no discussion in Xu concerning severance and dismissal of the monetary damages.

Here, if severance of plaintiffs action is permitted, we have a whistleblower claim seeking solely equity, brought in a jurisdiction where the only notice requirement is that of the General Municipal Law. In our view, this is not very different from permitting an equitable claim, for instance one subject to the broader Education Law notice statute such as Kahn v New York City Dept. of Educ. ( 79 AD3d 521 [1st Dept 2010], supra) to be litigated without the filing of a notice of claim. There is no reason the same should not be true for a whistleblower claim seeking only equity. Where a whistleblower claim seeks both equity and monetary damages, but no notice of claim was filed, there is no reason not to treat the claim as we have sometimes treated claims brought against a municipality seeking significant amounts of money damages in addition to resolving the complained-of conditions, that is to say, the equitable portion of