finder of fact could conclude that the medical director was solely responsible to the governing body. Further, while both the regulations and by-laws give the Commissioner the day-to-day responsibility to manage the hospital, it does not follow as a matter of law that such day to day responsibilities would include the hiring and firing of the Medical Director. Because we cannot say that plaintiff has failed to state a claim, we deny defendants' motion to dismiss plaintiff's breach of contract claim.
III. Failure to State the Claim of Tortious Interference with Contract (Sixth Cause of Action)
Defendants argue that we must dismiss plaintiff's claim for tortious interference with contract because (1) she has failed to establish a contract and (2) Giacobbe and Grant were acting as agents for their employer and thus cannot interfere with the contract.
Defendants argue, even accepting that plaintiff had an employment contract, such a contract would have been with Rockland County and the Department of Hospitals. Claiming plaintiff has not alleged that Giacobbe and Grant acted outside their official duties, defendants argue that we must accept that they were acting within the scope of their employment, and the claim must be dismissed because an agent cannot be liable for inducing its principal to breach a contract.
Reading the complaint in favor of the plaintiff, as we must do on a motion to dismiss, we find that plaintiff did allege that Giacobbe and Grant were acting outside their scope of their official duties. Paragraph 47 of the complaint states "Giacobbe and Grant lacked the authority under state law and regulations, under the county charter, under laws of the county and under by-law of the SPH/RCI to discharge or otherwise force the resignation-termination of Dr. Finley." Paragraph 40 states, "Giacobbe, without the authority and power to do so . . . usurped the power of the Board of Governors and wrongfully assumed such powers unto himself, and with the aid of Grant . . . effected the discharge of Dr. Finley."
Because we find that plaintiff has alleged that the individual defendants were not acting as agents for their employers, the success of defendants' motion to dismiss the sixth cause of action will turn on whether plaintiff has succeeded in alleging the breach of an employment contract. As discussed above, we cannot say as a matter of law that plaintiff has failed to state a breach of contract claim. Therefore, we deny defendants' motion to dismiss plaintiff's claim of tortious interference with contract.
IV. Failure to State a 1983 Claim Based On Denial of Due Process (Seventh Cause of Action)
We have already dealt with defendants motion to dismiss plaintiff's seventh cause of action based on her failure to file a notice-of-claim. However, defendants also claim that the cause of action should be dismissed because plaintiff has failed to state a claim.
Plaintiff's seventh claim alleges that by operation of the County Civil Service Rules, plaintiff was a permanent employee at the time that defendants forced her resignation. As a permanent employee, she claims that the hospital by-laws and county civil service rules provided that she could only be discharged for certain reasons and not without a hearing.
Specifically, plaintiff alleges that County Civil Service Rules guaranteed permanency of appointment after the completion of an eight week probationary period unless the employee is notified by the appointing authority at least two weeks prior to the end of the probationary period that the period is being extended. Plaintiff argues that Giacobbe had no authority to extend her probationary period, and therefore, her probationary period was never extended.
In the alternative, plaintiff argues that Giacobbe's letter attempting to extend her probation came to late. County Civil Service Rule XVI 1.d. states that an appointment shall become permanent upon the completion of eight weeks of employment, "unless the probationer, prior to but within two weeks of the completion of such service, is given written notice that the probationary period will be continued."
Giacobbe sent Finley a written notice on January 28, 1992. The complaint alleges that Finley's employment began on December 3, 1991 and that the eight week period ended on January 27, 1992. However, defendants argue that the rules also require that the probationary period be extended for each day over ten that the plaintiff has taken as leave. Rockland County Civ. Serv. R. XVI(5). Because plaintiff was absent twelve days, defendants claim that the eight week period must be extended to January 29, 1992. Defendants submit the fact that plaintiff was absent twelve days through the affidavit of Anita Caminez.
While defendants' argument that the initial probationary period must be extended appears to have merit, on a motion to dismiss we cannot entertain facts outside the pleadings and must accept plaintiff's factual allegations as to the end of the probationary period as true. LaBounty, 913 F.2d 113 at 123. Therefore, we deny defendants' motion to dismiss plaintiff's § 1983 claim based on the deprivation of her due process rights.
In summary, defendants' motion to dismiss plaintiff's state Human Rights claim, the fourth cause of action, is granted. Defendants' motion to dismiss plaintiff's other six causes of action is denied.
GERARD L. GOETTEL
DATED: White Plains, NY
July 19, 1993