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July 19, 1993

JOANNE E. FINLEY, M.D., Plaintiff,
GEORGE T. GIACOBBE, Individually and as Commissioner, Department of Hospitals, Rockland County, New York, JOHN T. GRANT, Individually and as Rockland County Executive, ROCKLAND COUNTY DEPARTMENT OF HOSPITALS, SUMMIT PARK HOSPITAL/ ROCKLAND COUNTY INFIRMARY, and COUNTY OF ROCKLAND, Defendants.


The opinion of the court was delivered by: GERARD L. GOETTEL


Plaintiff Dr. Joanne E. Finley brings this action against George T. Giacobbe, Commissioner of Hospitals for Rockland County, John T. Grant, Rockland County Executive, Rockland County Department of Hospitals ("the Department of Hospitals"), Summit Park Hospital/Rockland County Infirmary ("SPH/RCI") and the County of Rockland ("the County"). Plaintiff alleges that she was forced to resign her position as the Medical Director of SPH/RCI because of her efforts to provide health care services for patients with acquired immune deficiency syndrome ("AIDS"). She claims that her forced resignation violated the Americans with Disabilities Act, 42 U.S.C. § 1983 et seq. ("ADA") and other federal and state anti-discrimination laws. Plaintiff also alleges that defendants breached her employment contract and tortiously interfered with her contract rights.


 On a motion to dismiss, we must take all factual allegations in the complaint as true. LaBounty v. Adler, 933 F.2d 121 (2d Cir. 1991). Therefore, we set forth the facts as alleged in the complaint.

 In November of 1991, Giacobbe offered Finley the position of Director of Medical Services for the Department of Hospitals Plaintiff accepted the offer effective December 3, 1991 and was also given the title of chief medical officer of SPH/RCI.

 According to the complaint, one of the issues confronting the Department of Hospitals and SPH/RCI was the growing number of AIDS patients in Rockland County. When Finley began working for the County, neither SPH nor RCI had ever admitted a patient with fully developed AIDS.

 In February 1992, Finley began receiving requests from community hospitals and physicians that patients with AIDS in need of long term hospital care be admitted to SPH or RCI. Finley denied the first three requests she received because she found that SPH was not able to meet the patients' medical needs. However, Finley decided to admit the fourth patient after determining that SPH could safely and effectively meet the patient's medical needs and that the medication required by the patient, who was eligible for Medicaid, would not cause SPH to incur excessive costs.

 Despite an implied warning from an employee of the Department of Hospitals that county hospitals would not admit AIDS patients, Finley admitted this fourth patient to SPH in late March 1992 and so informed Giacobbe by memorandum dated March 20, 1992.

 Plaintiff claims that Giacobbe attempted to delay the patient's admission by proposing a planning committee to study the establishment of a discrete AIDS unit at a staff meeting. At the same meeting, Giacobbe reacted angrily when Finley suggested that the County Department of Health should be involved in planning to treat AIDS patients. Plaintiff believes that Giacobbe's reaction was caused by his fear that the Department of Health would advocate that the SPH/RCI care for AIDS patients.

 On April 10, 1992, shortly after the staff meeting, Giacobbe summoned Finley to his office and informed her that he was extending her probationary period because, after the period ended, it "would be very hard to get rid of her." Giacobbe further told plaintiff not to buy a house in Rockland County "so she wouldn't get hurt."

 On April 27, 1992, Giacobbe summoned Finley to meet with him and the personnel director for the Department of Hospitals. At the meeting, Giacobbe demanded that Finley resign or he would terminate her employment despite the fact that there was nothing negative in her personnel file. The only reason Giacobbe provided for the request was the fact that he did not "mesh" with her.

 After further discussion with Giacobbe and Grant, Finley was informed if she did not resign, her employment would be terminated. Consequently, Finley sent a letter of resignation to Grant on May 18, 1992, effective May 22.

 Plaintiff alleges several causes of action. Her first, second and fourth causes of action are brought under § 503 of the ADA, 42 U.S.C. § 12203, § 504 of the Rehabilitation Act, 29 U.S.C. § 794, and New York State Human Rights Law, N.Y. Executive Law §§ 292(9) and 296(2) ("Human Rights Law"), respectively, and allege that defendants terminated her employment in retaliation for her encouragement that persons with AIDS exercise their rights under the statutes. *fn1"

 Plaintiff's third and seventh causes of action are civil rights claims. For her third cause of action, plaintiff alleges that the defendants, acting under color of state law, deprived her of her rights under the ADA and the Rehabilitation Act. The seventh cause of action alleges that defendants' termination of plaintiff's employment violated her due process rights.

 Plaintiff's fifth cause of action is brought against the Department of Hospitals, SPH/RCI and the County for breach of her employment contract. Her sixth cause of action is only against Grant and Giacobbe for tortious interference with her employment contract.

 Defendants now move, pursuant to F.R.Civ.P. 12(b)(6), that we dismiss the complaint in its entirety for failure to state a claim upon which relief can be granted.


 I. Failure to File a Notice-of-Claim (First, Second, Third, Fourth and Seventh Causes of Action)

 Defendants argue that plaintiff's first, second, third, fourth and seventh causes of action must be dismissed because plaintiff failed to serve a timely notice-of-claim upon the County. Defendants claim that N.Y. County Law requires that a timely notice-of-claim be filed pursuant to N.Y. Municipal Law §§ 50-e and 50-i before an action can be commenced for a claim against a county based on misfeasance, ...

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