Capobianco v. American Stock Exchange

233 A.D.2d 189, 649 N.Y.S.2d 688, 1996 N.Y. App. Div. LEXIS 11814

Opinion

Order, Supreme Court, New York County (Elliott Wilk, J.), entered June 21, 1995, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs claim that his employment was terminated in violation of Labor Law § 740, the whistleblowers’ statute, after he had brought to his supervisors’ attention violations of law in connection with the disposal of asbestos during a renovation project, is without merit, since his submissions fail to satisfy the requirement of an "actual” violation of law (Bordell v General Elec. Co., 88 NY2d 869, 871). It makes no difference whether plaintiff had a reasonable belief that violations had occurred (supra), although we note that he does not specify any. In contrast to plaintiff’s lack of proof, defendant convincingly documents that plaintiff had received a warning, which he acknowledged, in connection with his use of racial slurs and racially provocative language concerning or directed at fellow employees; that despite the warning, he failed to refrain from such conduct; and that employment was terminated for that reason. Plaintiff’s remaining contentions are without merit. Concur—Murphy, P. J., Sullivan, Rubin, Ross and Williams, JJ.