            SUPREME COURT OF THE STATE OF NEW YORK
              Appellate Division, Fourth Judicial Department

618
CA 13-02013
PRESENT: SMITH, J.P., PERADOTTO, LINDLEY, SCONIERS, AND WHALEN, JJ.


MARVIN ZIELONKA, PLAINTIFF-RESPONDENT,

                     V                                MEMORANDUM AND ORDER

TOWN OF SARDINIA, TOWN COUNCIL OF TOWN OF
SARDINIA AND TOWN OF SARDINIA TOWN SUPERVISOR,
DEFENDANTS-APPELLANTS.


WEBSTER SZANYI LLP, BUFFALO (JEREMY A. COLBY OF COUNSEL), FOR
DEFENDANTS-APPELLANTS.

HODGSON RUSS LLP, BUFFALO (PATRICK J. HINES OF COUNSEL), FOR
PLAINTIFF-RESPONDENT.


      Appeal from an order of the Supreme Court, Erie County (Michael L.
D=Amico, A.J.), entered October 9, 2013. The order denied the motion of
defendants to dismiss the complaint and/or for summary judgment.

     It is hereby ORDERED that the order so appealed from is unanimously
modified on the law by granting the motion in part, dismissing the complaint
in its entirety against defendants Town Council of Town of Sardinia and
Town of Sardinia Town Supervisor and dismissing the second cause of action
against defendant Town of Sardinia, and as modified the order is affirmed
without costs.

     Memorandum: Plaintiff was employed as code enforcement officer for
defendant Town of Sardinia (Town) until his termination by defendant Town
Council of Town of Sardinia (Council). Following his termination,
plaintiff commenced this action against the Town, the Council, and
defendant Town of Sardinia Town Supervisor (Supervisor) under Civil
Service Law ' 75-b, the public employees= whistleblower statute, alleging,
inter alia, that his Atermination was in retaliation for his refusal to
perform@ unauthorized functions and for his Aact[ing] as a whistle-blower
in reporting@ those unauthorized directives Ato the Town=s outside attorney
and others.@ Supreme Court denied defendants= pre-answer Amotion to
dismiss and/or for summary judgment,@ and defendants appeal.

     We agree with defendants that the court erred in denying their motion
insofar as it sought dismissal of the complaint against the Council and
the Supervisor, and we therefore modify the order accordingly. Civil
Service Law ' 75-b protects a Apublic employee@ from discharge or
discipline by a Apublic employer@ (' 75-b [2] [a]). The statute applies
only to governmental entities that actually employ the plaintiff (see
' 75-b [1] [a]; Frank v State of N.Y., Off. of Mental Retardation & Dev.
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                                                              CA 13-02013

Disabilities, 86 AD3d 183, 188; Moore v County of Rockland, 192 AD2d 1021,
1024). Furthermore, the Town cannot be held liable for punitive damages
absent an express provision in the statute (see Krohn v New York City
Police Dept., 2 NY3d 329, 335-336; Drisdom v Niagara Falls Mem. Med. Ctr.,
53 AD3d 1142, 1142). We therefore further modify the order by granting
that part of the motion seeking dismissal of the second cause of action
against the Town.

     We reject defendants= contention, however, that the court erred
insofar as it denied their motion to dismiss the first cause of action
against the Town for failure to state a cause of action. The public
employees= whistleblower statute prevents a public employer from, inter
alia, terminating a public employee Abecause the employee discloses to
a governmental body information . . . which the employee reasonably
believes to be true and reasonably believes constitutes an improper
governmental action@ (Civil Service Law ' 75-b [2] [a]). The term
Aimproper governmental action@ refers to Aany action by a public employer
or employee, or an agent@ thereof, Awhich is undertaken in the performance
of [his or her] official duties . . . and which is in violation of any
federal, state, or local law, rule or regulation@ (' 75-b [2] [a]). The
list of governmental bodies to which disclosure may be made includes,
as relevant herein, a member of a town=s legislature (see ' 75-b [1] [c]
[iii]). In addition, the statute requires that the employee, prior to
disclosing the information, must have Amade a good faith effort to provide
the appointing authority or his or her designee the information to be
disclosed and . . . provide[d] the appointing authority or designee a
reasonable time to take appropriate action@ (' 75-b [2] [b]). The term
Aappointing authority@ refers to Athe officer, commission or body having
the power of appointment to subordinate positions@ (' 2 [9]), which in
this case is the Supervisor and the Council.

     We conclude that plaintiff adequately alleged that he reasonably
believed that he had been directed to perform an unlawful act. Civil
Service Law ' 75-b does not require an actual violation of the law for
a subsequent action to be maintained thereunder (see Bordell v Gen. Elec.
Co., 88 NY2d 869, 871; Barker v Peconic Landing at Southold, Inc., 885
F Supp 2d 564, 570; see also Labor Law ' 740). Plaintiff need have had
only Aa reasonable belief of a possible violation@ of the law (Bordell,
88 NY2d at 871; see ' 75-b [2] [a] [ii]). Here, plaintiff alleged, inter
alia, that he Acould not legally@ issue a stop work order to a developer
working on a project, as he had been directed by the Supervisor, because
Athe developer had all of the necessary permits,@ and defendant=s
submissions do not conclusively establish that the developer lacked the
necessary permits (see generally Gibraltar Steel Corp. v Gibraltar Metal
Processing, 19 AD3d 1141, 1142). Construing the complaint liberally (see
Youssef v Triborough Bridge & Tunnel Auth., 24 AD3d 661, 661; see also
CPLR 3026), and accepting plaintiff=s factual allegations and all possible
favorable inferences as true (see Leon v Martinez, 84 NY2d 83, 87-88),
we conclude that plaintiff adequately alleged that he believed that he
had been ordered to commit an unlawful act and that his belief was
reasonable.

     We reject defendants= contention that plaintiff=s purported act of
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                                                               CA 13-02013

insubordination for failing to carry out the allegedly unlawful directive
constitutes a A >separate and independent basis= @ for the termination (cf.
Rigle v County of Onondaga, 267 AD2d 1088, 1089, lv denied 94 NY2d 764),
inasmuch as the purported act of insubordination related directly to
plaintiff=s act of disclosure. We further conclude that plaintiff
adequately alleged that he made a good faith effort to inform either the
Council or the Supervisor (see generally Brohman v New York Convention
Ctr. Operating Corp., 293 AD2d 299, 299-300), prior to disclosure to a
governmental body (see Civil Service Law ' 75-b [2] [a], [b]). Plaintiff
averred in his affidavit that he disclosed allegedly unlawful directives
to the Supervisor and to at least one person who qualifies as a member
of a governmental body, i.e., a Town Councilman (see ' 75-b [1] [c] [iii]).
 Lastly, the transcript from plaintiff=s examination pursuant to General
Municipal Law ' 50-h, which plaintiff submitted in opposition to the
motion, supports the inference that plaintiff had multiple conversations
with the Supervisor and the Town Attorney, giving them ample opportunity
to withdraw the allegedly unlawful directive (see Civil Service Law
' 75-b [2] [b]), before disclosing that directive to the Town Councilman
(see generally Leon, 84 NY2d at 87-88).




Entered:   August 8, 2014                          Frances E. Cafarell
                                                   Clerk of the Court
