Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered October 5, 2010, which granted a petition for leave to file a late notice of claim against respondent-appellant New York City Health and Hospitals Corporation (HHC) pursuant to General Municipal Law § 50-e, reversed, on the law, without costs, the petition denied, the proceeding brought pursuant to CELR article 4 dismissed, and the proposed complaint dismissed, with prejudice. The Clerk is directed to enter judgment accordingly.
The crux of petitioner’s claim against her former employer, respondent HHC, is that, on April 6, 2009, HHC fired her from her position with HHC’s Office of Clinical and Health Services Research (OCHSR), not because of budget constraints (as petitioner was told), but in retaliation for her objection to the failure of the documentation of many human-subject research programs submitted to her office (which it was her job to review) to comply with applicable regulatory requirements. The verified complaint for petitioner’s proposed action against HHC summarizes the conduct for which HHC allegedly retaliated against petitioner as follows:
“24. From the beginning of her employment by HHC, [1030]*1030[petitioner] had reason to believe that a number of HHC hospitals . . . were out of compliance with HHC operating procedures, for reasons including but not limited to: (1) failure to comply with HIPPA, IRB and protocol requirements; (2) failure to provide informed consents in compliance with regulatory requirements; and (3) failure to submit information relating to adverse events occurring in the course of human subject research.
“25. [Petitioner] brought such noncompliance to the attention of affiliates, officials at HHC hospitals and HHC administration, and attempted to enforce applicable federal, state and city laws and regulations.”
Based on her own allegations in the proposed verified complaint and other sworn statements submitted with her application for leave to file a late notice of claim, petitioner reviewed the documentation of human-subject research projects conducted at HHC facilities for regulatory compliance. She neither provided treatment nor care to patients, nor did she supervise or direct those who did; nor did she have responsibility for the provision of resources needed for treatment or care. She does not allege that she had interaction with patients or any decision-making authority concerning the care administered to any particular patient.
Petitioner seeks to assert causes of action against HHC for retaliatory termination based on Labor Law § 740, which applies to all employees of health care organizations, and Labor Law § 741, which applies more narrowly to employees of health care organizations who actually “perform! ] health care services” (§ 741 [1] [a]), as well as a few other claims to be discussed later. She failed to serve a notice of claim on HHC within 90 days of her termination on April 6, 2009, as required by General Municipal Law § 50-e and the New York City Health and Hospitals Corporation Act (HHC Act) § 20 (2) (McKinney’s Uncons Laws of NY § 7401 [2]), although she did serve a notice of claim within the 90-day period upon the Office of the Comptroller of New York City, which does not have the authority to receive notices of claim on behalf of HHC. On July 2, 2010, petitioner made the instant application for leave to serve a late notice of claim and file the annexed verified complaint. Supreme Court granted the application.
Upon HHC’s appeal, we reverse the granting of the motion for leave to file a late notice of claim against HHC, and accordingly dismiss the proposed complaint, on the ground that, as a matter of law, petitioner cannot prevail on any of the claims that she seeks to assert. Because petitioner does not assert any [1031]*1031legally viable causes of action, we need not consider whether Supreme Court’s granting of leave to file a late notice of claim would otherwise have been a proper exercise of discretion.
We turn first to the claim under Labor Law § 740. That cause of action is time-barred under the terms of the statute itself because, as previously stated, HHC terminated petitioner’s employment on April 6, 2009, and petitioner filed her petition for leave to file a late notice of claim on July 2, 2010, after the expiration of the one-year statute of limitations incorporated into the statute (see Labor Law § 740 [4] [a]). General Municipal Law § 50-e (5), made applicable to HHC by HHC Act § 20 (2), permits a court to entertain a motion for leave to serve a late notice of claim only within the applicable limitations period, not, as here, after the limitations period has expired. Contrary to Supreme Court’s view, the one-year statute of limitations that is part of section 740 takes precedence over the one-year and 90-day limitations period set forth in the HHC Act (see Romano v Romano, 19 NY2d 444, 447 [1967]).
Although not time-barred, the claim under Labor Law § 741 is also without merit as a matter of law. Section 741 affords to a health care “employee,” as defined in the statute, a cause of action against the employer for “retaliatory action” (§ 741 [2]) taken
“because the employee does any of the following:
“(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or
“(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.”
Section 741 defines the term “employee,” as used in that statute, as “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration” (§ 741 [1] [a] [emphasis added]). The Court of Appeals, describing this definition as “exactingly specific” (Reddington v Staten Is. Univ. Hosp., 11 NY3d 80, 90 [2008]), has held that “the ‘natural signification’ of section 741 (1) (a) is quite definite: to be subject to the special protections of section 741, an employee of a health care provider must ‘perform! ] health care services,’ which means to actually supply health care services, not merely to coordinate with those who do” (id. at 91). Section 741, the Court of Appeals concluded, “is meant [1032]*1032to safeguard only those employees who are qualified by virtue of training and/or experience to make knowledgeable judgments as to the quality of patient care, and whose jobs require them to make these judgments” (id. at 93 [emphasis added]). Accordingly, the Reddington Court held that section 741 does not apply to “an individual who does not render medical treatment” (id. at 87 [internal quotation marks omitted] [answering the second certified question in the negative]).
Based on the Court of Appeals’ holding in Reddington, the Second Circuit (which had certified the question to the Court of Appeals in that case) affirmed the dismissal of a claim under section 741 asserted by a hospital employee who “allege[d] that she coordinated and developed certain services for the Hospital’s patients, took charge of patient satisfaction questionnaires, and managed and trained personnel who provided translation assistance, but . . . [did] not allege that she supplied any treatment” (Reddington v Staten Is. Univ. Hosp.,
Free access — add to your briefcase to read the full text and ask questions with AI
Order, Supreme Court, New York County (Cynthia S. Kern, J.), entered October 5, 2010, which granted a petition for leave to file a late notice of claim against respondent-appellant New York City Health and Hospitals Corporation (HHC) pursuant to General Municipal Law § 50-e, reversed, on the law, without costs, the petition denied, the proceeding brought pursuant to CELR article 4 dismissed, and the proposed complaint dismissed, with prejudice. The Clerk is directed to enter judgment accordingly.
The crux of petitioner’s claim against her former employer, respondent HHC, is that, on April 6, 2009, HHC fired her from her position with HHC’s Office of Clinical and Health Services Research (OCHSR), not because of budget constraints (as petitioner was told), but in retaliation for her objection to the failure of the documentation of many human-subject research programs submitted to her office (which it was her job to review) to comply with applicable regulatory requirements. The verified complaint for petitioner’s proposed action against HHC summarizes the conduct for which HHC allegedly retaliated against petitioner as follows:
“24. From the beginning of her employment by HHC, [1030]*1030[petitioner] had reason to believe that a number of HHC hospitals . . . were out of compliance with HHC operating procedures, for reasons including but not limited to: (1) failure to comply with HIPPA, IRB and protocol requirements; (2) failure to provide informed consents in compliance with regulatory requirements; and (3) failure to submit information relating to adverse events occurring in the course of human subject research.
“25. [Petitioner] brought such noncompliance to the attention of affiliates, officials at HHC hospitals and HHC administration, and attempted to enforce applicable federal, state and city laws and regulations.”
Based on her own allegations in the proposed verified complaint and other sworn statements submitted with her application for leave to file a late notice of claim, petitioner reviewed the documentation of human-subject research projects conducted at HHC facilities for regulatory compliance. She neither provided treatment nor care to patients, nor did she supervise or direct those who did; nor did she have responsibility for the provision of resources needed for treatment or care. She does not allege that she had interaction with patients or any decision-making authority concerning the care administered to any particular patient.
Petitioner seeks to assert causes of action against HHC for retaliatory termination based on Labor Law § 740, which applies to all employees of health care organizations, and Labor Law § 741, which applies more narrowly to employees of health care organizations who actually “perform! ] health care services” (§ 741 [1] [a]), as well as a few other claims to be discussed later. She failed to serve a notice of claim on HHC within 90 days of her termination on April 6, 2009, as required by General Municipal Law § 50-e and the New York City Health and Hospitals Corporation Act (HHC Act) § 20 (2) (McKinney’s Uncons Laws of NY § 7401 [2]), although she did serve a notice of claim within the 90-day period upon the Office of the Comptroller of New York City, which does not have the authority to receive notices of claim on behalf of HHC. On July 2, 2010, petitioner made the instant application for leave to serve a late notice of claim and file the annexed verified complaint. Supreme Court granted the application.
Upon HHC’s appeal, we reverse the granting of the motion for leave to file a late notice of claim against HHC, and accordingly dismiss the proposed complaint, on the ground that, as a matter of law, petitioner cannot prevail on any of the claims that she seeks to assert. Because petitioner does not assert any [1031]*1031legally viable causes of action, we need not consider whether Supreme Court’s granting of leave to file a late notice of claim would otherwise have been a proper exercise of discretion.
We turn first to the claim under Labor Law § 740. That cause of action is time-barred under the terms of the statute itself because, as previously stated, HHC terminated petitioner’s employment on April 6, 2009, and petitioner filed her petition for leave to file a late notice of claim on July 2, 2010, after the expiration of the one-year statute of limitations incorporated into the statute (see Labor Law § 740 [4] [a]). General Municipal Law § 50-e (5), made applicable to HHC by HHC Act § 20 (2), permits a court to entertain a motion for leave to serve a late notice of claim only within the applicable limitations period, not, as here, after the limitations period has expired. Contrary to Supreme Court’s view, the one-year statute of limitations that is part of section 740 takes precedence over the one-year and 90-day limitations period set forth in the HHC Act (see Romano v Romano, 19 NY2d 444, 447 [1967]).
Although not time-barred, the claim under Labor Law § 741 is also without merit as a matter of law. Section 741 affords to a health care “employee,” as defined in the statute, a cause of action against the employer for “retaliatory action” (§ 741 [2]) taken
“because the employee does any of the following:
“(a) discloses or threatens to disclose to a supervisor, or to a public body an activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care; or
“(b) objects to, or refuses to participate in any activity, policy or practice of the employer or agent that the employee, in good faith, reasonably believes constitutes improper quality of patient care.”
Section 741 defines the term “employee,” as used in that statute, as “any person who performs health care services for and under the control and direction of any public or private employer which provides health care services for wages or other remuneration” (§ 741 [1] [a] [emphasis added]). The Court of Appeals, describing this definition as “exactingly specific” (Reddington v Staten Is. Univ. Hosp., 11 NY3d 80, 90 [2008]), has held that “the ‘natural signification’ of section 741 (1) (a) is quite definite: to be subject to the special protections of section 741, an employee of a health care provider must ‘perform! ] health care services,’ which means to actually supply health care services, not merely to coordinate with those who do” (id. at 91). Section 741, the Court of Appeals concluded, “is meant [1032]*1032to safeguard only those employees who are qualified by virtue of training and/or experience to make knowledgeable judgments as to the quality of patient care, and whose jobs require them to make these judgments” (id. at 93 [emphasis added]). Accordingly, the Reddington Court held that section 741 does not apply to “an individual who does not render medical treatment” (id. at 87 [internal quotation marks omitted] [answering the second certified question in the negative]).
Based on the Court of Appeals’ holding in Reddington, the Second Circuit (which had certified the question to the Court of Appeals in that case) affirmed the dismissal of a claim under section 741 asserted by a hospital employee who “allege[d] that she coordinated and developed certain services for the Hospital’s patients, took charge of patient satisfaction questionnaires, and managed and trained personnel who provided translation assistance, but . . . [did] not allege that she supplied any treatment” (Reddington v Staten Is. Univ. Hosp., 543 F3d 91, 93 [2d Cir 2008]). Similarly, this Court dismissed a claim under section 741 asserted by “a licensed clinical social worker . . . [who] alleges that she ‘secure[d] prescribed medications,’ ‘evaluate[d] the need for and arrange[d] for individual patients’ appropriate staffing and treatment,’ and was ‘personally involved in ensuring that patients received protective and healthful grooming and other health-related treatment.’ These allegations establish that plaintiff ‘merely . . . coordinate[d] with those who [performed health care services]’ ” (Webb-Weber v Community Action for Human Servs., Inc., 98 AD3d 923, 924 [1st Dept 2012], revd on other grounds 23 NY3d 448 [2014], quoting Reddington, 11 NY3d at 91).1
In this case, petitioner, by her own account, reviewed the supporting paperwork for research projects involving human subjects for compliance with applicable regulatory requirements. She had no responsibility, direct or indirect, for providing treatment or care to any patient, for any patient outcome, or even for facilitating the provision of care or treatment to patients through the allocation of HHC resources. She was charged [1033]*1033simply with making sure that HHC did not run afoul of applicable legal requirements in the documentation of human-subject research projects conducted at its hospitals. She was even further removed from the actual provision of care or treatment to patients than were the plaintiffs in Reddington and Webb-Weber. As HHC aptly points out in its reply brief, petitioner “did not see, treat or otherwise interact with patients, nor did she have any decision making authority regarding direct patient health care.”
The dissent stresses petitioner’s “experience” as a registered nurse licensed to practice in New York — which, while undisputed, is irrelevant to her standing under section 741, given the absence of any basis in the record for the dissent’s characterization of petitioner’s position as one that actually required her “to make . . . judgments [concerning] the quality of patient care” (Reddington, 11 NY3d at 93). Again, in her job at OCHSR, petitioner participated in the process of approving research projects at inception, and in monitoring ongoing projects, based on whether the researchers had complied with applicable legal requirements and HHC procedures. Nowhere does petitioner allege that she rendered any independent “judgment” about the quality of any patient’s health care. While we appreciate the importance to the integrity of the scientific enterprise of the work petitioner did at OCHSR, we do not believe that she was “performing] health care services” (§ 741 [1] [a]) in this position.
The dissent attempts to distinguish Reddington and Webb-Weber on the ground that the plaintiffs in those cases (a coordinator of volunteer services and translator in Reddington, a clinical social worker in Webb-Weber), unlike petitioner herein, were not trained medical professionals. We disagree. Although petitioner was a licensed registered nurse qualified to “perform[ ] health care services” (§ 741 [1] [a]), during her employment at OCHSR, she neither performed health care services nor was she required to make “judgments as to the quality of patient care” (Reddington, 11 NY3d at 93) based on her training and experience as a nurse. Indeed, the plaintiffs in Reddington and Webb-Weber, notwithstanding their lack of health care credentials, performed tasks closer to providing health care services than petitioner did at OCHSR, since they actively coordinated with providers of health care services and, in one case, even secured prescribed medications. Petitioner, by contrast, merely reviewed the documentation generated by medical researchers for compliance with regulatoiy requirements. If the tasks performed by the Reddington and Webb-Weber plaintiffs did not give them [1034]*1034standing under section 741, still less should petitioner’s review functions qualify her for such standing.
The dissent also stresses petitioner’s allegation that the actions she took that allegedly led to her termination were motivated by her concern for the quality of the care that the subjects of the research programs she monitored would ultimately receive. This motivation, laudable though it was, does not confer standing on petitioner to sue under section 741. The statute provides that it covers only persons who actually “perforad ] health care services” (§ 741 [1] [a]). Health care institutions employ many people who do not perform health care services. While such an employee might, out of concern for patients, disclose perceived improprieties in the quality of patient care, that motivation, however commendable, would not bring within the purview of the statute an accountant, a social worker, or, as here, a person who reviews research documentation for compliance with legal requirements.
Notwithstanding that, as a registered nurse, petitioner was qualified to provide health care services, HHC plainly did not employ her to do so. To reiterate, she did not provide care; she did not supervise those who provided care; and she did not facilitate the provision of care through resource allocation. She reviewed paperwork for compliance with legal requirements, which, under Reddington, does not qualify petitioner as a member of the class of those “who perform! ] health care services” (§ 741 [1] [a]), for whose sole benefit the statute was enacted. Accordingly, Reddington mandates dismissal of petitioner’s claim under section 741.
Petitioner’s remaining claims against HHC are also without merit as a matter of law. The claims for violation of Administrative Code of the City of New York § 12-113 and for violation of her constitutional right of free speech are barred because her assertion of claims under Labor Law §§ 740 and 741 waived her right to assert whistleblower claims under other provisions of law (see Reddington, 11 NY3d at 87, 89). Finally, petitioner’s cause of action for tortious interference with prospective business relations fails as a matter of law because she does not identify any third party with whom she lost the prospect of doing business as a result of HHC’s actions (see Carvel Corp. v Noonan, 3 NY3d 182, 189-190 [2004]).
Concur — Friedman, J.E, Freedman and Richter, JJ.