Court Affirms Dismissal of Labor Law 740 Whistleblower Law Claim

From Coyle v. College of Westchester, Inc., 2018 NY Slip Op 07699, 2018 NY Slip Op 07699 (App. Div. 2d Dept. Nov. 14, 2014):

We agree with the Supreme Court’s determination to grant that branch of the defendants’ motion which was to dismiss the cause of action alleging violation of Labor Law § 740, commonly known as the whistleblower statute. The statute provides, in relevant part, that “[a]n employer shall not take any retaliatory personnel action against an employee because such employee . . . discloses, or threatens to disclose to a supervisor or to a public body an activity, policy or practice of the employer that is in violation of law, rule or regulation” that either “creates and presents a substantial and specific danger to the public health or safety, or . . . constitutes health care fraud” (Labor Law § 740[2][a]).

While the plaintiff in a whistleblower action must prove, at trial, that an actual violation of law, rule, or regulation occurred (see Bordell v General Elec. Co., 88 NY2d 869, 871), it is not necessary, for pleading purposes, that the plaintiff identify in the complaint the specific law, rule, or regulation that the defendant allegedly violated[.]

Applying the law, the court held that “while the amended complaint sufficiently alleges a violation of law, rule, or regulation, it fails to allege any substantial and specific danger to the public health or safety resulting from such violation[.]”