Carlos E. Ruiz, M.D., Ph.D, Plaintiff-Respondent-Appellant,
Lenox Hill Hospital, et al., Defendants-Appellants-Respondents.
Peabody LLP, Jericho (Christopher G. Gegwich of counsel), for
Cashman LLP, New York (Eric M. Fishman of counsel), for
Andrias, J.P., Saxe, Feinman, Gische, Kahn, JJ.
Supreme Court, New York County (Cynthia S. Kern, J.), entered
on or about April 4, 2016, which, to the extent appealed from
as limited by the briefs, denied defendants' motion to
dismiss insofar as they sought to dismiss the Labor Law
§§ 740 and 741 causes of action, and granted the
motion to dismiss insofar as defendants sought dismissal of
the declaratory judgment cause of action, unanimously
modified, on the law, to grant the motion to dismiss the
Labor Law causes of action as against defendant Dr. S. Jacob
Scheinerman, and to declare on the declaratory judgment cause
of action that plaintiff is not entitled to the severance
package set forth in his employment contract or severance
agreement unless he executes a general release, and otherwise
affirmed, without costs.
alleges that, as soon as he took over as Chair of defendant
Lenox Hill Hospital's Department of Cardiovascular and
Thoracic Surgery, Dr. Scheinerman began signing medical
procedure reports for procedures which he had neither
performed nor witnessed, contrary to the usual practice of
having the performing physicians sign those reports.
Plaintiff also alleges that, contrary to accepted
postoperative protocol that the lead surgeon report the
results of a surgical procedure to the patient's family,
Dr. Scheinerman reported the results of a valve implant
procedure on which plaintiff had been the lead surgeon.
Plaintiff reported Dr. Scheinerman's actions to Lenox
Hill's human resources department, and he alleges that,
because of that report, he was terminated.
construing the complaint, presuming its factual allegations
to be true, and giving the allegations every favorable
inference, as we must on a CPLR 3211 motion to dismiss
(see Webb-Weber v Community Action for Human Servs.,
Inc., 23 N.Y.3d 448, 453 ; 511 W. 232nd Owners
Corp. v Jennifer Realty Co., 98 N.Y.2d 144, 151-152
), plaintiff has adequately pleaded a claim for
retaliatory termination in violation of Labor Law § 740
as against the hospital and corporate defendants.
Defendants' contention that plaintiff has failed to
sufficiently allege facts constituting a specific or
substantial danger to public health is without merit.
Falsification of medical records, including a physician's
false claim to have performed a procedure, has been held to
establish a violation of section 740 (see Kraus v New
Rochelle Hosp. Med. Ctr., 216 A.D.2d 360, 361-365 [2d
Dept 1995], lv dismissed 86 N.Y.2d 885');">86 N.Y.2d 885 ).
also adequately stated a claim under Labor Law § 741 as
against the hospital and corporate defendants. At this early
juncture, it is too soon to decide whether reports to a
patient's family constitute improper care of the patient
himself (see Von Maack v Wyckoff Hgts. Med. Ctr.,
140 A.D.3d 1055, 1057-1058 [2d Dept 2016]). As with his claim
under Labor Law § 740 (see Webb-Weber, 23
N.Y.3d at 453), plaintiff need not identify the specific rule
that had been violated (see Blashka v New York Hotel
Trades Council & Hotel Assn. of N.Y. Health Ctr.,
126 A.D.3d 503, 503 [1st Dept 2015]). Moreover, plaintiff
need only allege, for his Labor Law § 741 claim, that he
reasonably believed that there had been such a violation, not
that there was an actual violation (see Pipia v Nassau
County, 34 A.D.3d 664, 666 [2d Dept 2006]).
motion court should have dismissed the Labor Law claims as
against Dr. Scheinerman individually, since he is not an
"employer" within the meaning of Labor Law
§§ 740 and 741 (see Ulysse v AAR Aircraft
Component Servs., 128 A.D.3d 1053, 1054 [2d Dept 2015];
Geldzahler v New York Med. Coll., 746 F.Supp.2d 618,
632 [SD NY 2010]).
motion court correctly determined the plaintiff is not
entitled to a severance payment under his employment contract
or severance agreement unless he executes the general release
provided in the severance agreement (see Kaul v Hanover
Direct, Inc., 148 Fed.Appx 7, 9 [2d Cir 2005];
Mullinix v Mount Sinai Sch. of Med., 2015 U.S. Dist
LEXIS 7965, *5 [SD NY, Jan. 23, 2015, No. 12-cv-8659 (PKC)]).
Rather than dismiss the declaratory judgment cause of action,
however, the court should have declared in defendants'