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Joyce Villarin, Plaintiff-Respondent v. the Rabbi Haskel Lookstein School

April 12, 2012


Defendant appeals from an order of the Supreme Court, New York County (Milton A. Tingling, J.), entered July 9, 2010, which, insofar as appealed from, denied its motion to dismiss the cause of action alleging retaliatory discharge.

The opinion of the court was delivered by: Renwick, J.

Villarin v Rabbi Haskel Lookstein School

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 12, 2012


Angela M. Mazzarelli, J.P. David Friedman James M. Catterson Dianne T. Renwick Leland G. DeGrasse, JJ.


In New York, pursuant to the well-established common-law doctrine of employment at will, an employee-employer relationship, in the absence of a contract and a stated duration, is presumed to be a hiring at-will. An at-will employment relationship may be freely terminated by either party for any reason or even no reason at all (Wider v Skala, 80 NY2d 628, 633 [1992]). In the 1980s, however, New York, like the vast majority of jurisdictions, enacted public policy whistleblower exceptions for both private and public employees. At-will whistleblowing employees in the private sector are protected by section 740 of the Labor Law. Some commentators question whether the Legislature has formulated the proper balance between the competing interests intended to be protected by the statutorily created private sector at-will whistleblower exception and the judicially created traditional employment-at-will doctrine .*fn1 Our task here, however, is simply to determine, within the context of a motion to dismiss (CPLR 3211[a][7]), whether plaintiff's allegations that the headmaster terminated her employment as the school's nurse for reporting suspected child abuse in accordance with Social Services Law § 413, rise to the level of whistleblowing activity protected by Labor Law § 740.

In 2010, plaintiff Joyce Villarin commenced this action against defendant The Rabbi Haskel Lookstein School, a/k/a The Ramaz School, alleging wrongful and retaliatory termination. In the complaint, which we must accept as true on a dismissal motion pursuant to CPLR 3211(a)(7), plaintiff alleges that, in 2006, she began her employment as a nurse in defendant school's nursery through fourth grade division (the Lower School). On November 30, 2007, a student visited plaintiff with a prominent injury on his left cheek. The student told plaintiff that his father had intentionally struck him in the face. Plaintiff then contacted the father, who admitted that he had struck the child. Moreover, the father boasted that the mother had encouraged him to do so, and that he had no remorse. At the time, plaintiff determined that, consistent with Social Services Law § 413, she had a duty to report the suspected abuse or maltreatment to the New York State Central Child Abuse and Maltreatment Register (Register).

Accordingly, plaintiff discussed this matter with Rabbi Alan Berkowitz, the Headmaster of the Lower School. Berkowitz allegedly questioned plaintiff's motives and discouraged her from reporting the incident, even after plaintiff explained to Berkowitz that she had a legal obligation under Social Services Law § 413 to report the incident to the Register. Nevertheless, plaintiff reported the incident to the Register on December 1, 2007. There were unexpected ramifications. At a meeting on April 15, 2008, the Headmaster allegedly informed plaintiff that she was going to be terminated because both he and the director of the early childhood program thought that she was not "a team player." The termination took place on June 13, 2008.

Plaintiff then commenced this action for wrongful and retaliatory termination, alleging that defendant terminated her employment in retaliation for fulfilling her reporting obligations under Social Services Law § 413. Defendant moved to dismiss pursuant to CPLR 3211(a)(7), arguing that the complaint failed to state a claim under Labor Law § 740 because the alleged abuse was committed by a third party (the student's father), and the incident did not present a substantial and specific danger to public health or safety. Plaintiff replied that she had a private right of action under Labor Law § 740 because she objected to or refused to participate in defendant's policy of declining to report abuse as required under Social Services Law § 413, and defendant retaliated by terminating her employment.

Noting that plaintiff was an at-will employee, the motion court granted defendant's motion insofar as dismissing the cause of action for wrongful termination, but denied dismissal of the retaliatory termination claim. First, the court found that "defendant's apparent activity, policy, or practice of failing to comply with Social Services Law [§ ] 413's mandatory requirement would clearly amount to a violation of law." Second, the court rejected defendant's contention that because the alleged violation of law was not ongoing, it did not substantially endanger the public health or safety. Instead, the court found that "defendant['s] alleged expressed intention not to comply with Social Services Law [§ ] 413 may have a widespread effect on all abused children at the school, and not just this particular case brought to plaintiff's attention." This appeal ensued and we now affirm.

When a defendant has challenged the facial sufficiency of a complaint, the court's inquiry is limited to whether the allegations state any claim cognizable at law (see Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Viewing the complaint in the light most favorable to plaintiff, and presuming the factual allegations supporting plaintiff's claim to be true (Leon v Martinez, 84 NY2d 83, 87 [1994]; Leibowitz v Bank Leumi Trust Co., of N.Y., 152 AD2d 169, 171 [1989]), ...

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