Novak v. St. Luke's-Roosevelt Hospital Center, Inc. ( 2016 )

Novak v St. Luke's-Roosevelt Hosp. Ctr., Inc. (2016 NY Slip Op 00762)

Novak v St. Luke's-Roosevelt Hosp. Ctr., Inc.

2016 NY Slip Op 00762

Decided on February 4, 2016

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 4, 2016
Tom, J.P., Friedman, Sweeny, Acosta, Andrias, JJ.

125 100979/11

[*1]Danna Novak, Plaintiff-Appellant,

v

St. Luke's-Roosevelt Hospital Center, Inc., et al., Defendants-Respondents.

Danna Novak, appellant pro se.

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Nancy Wright of counsel), for respondents.

Order and judgment (one paper), Supreme Court, New York County (Louis B. York, J.), entered March 11, 2014, which granted defendants' motion for summary judgment dismissing plaintiff's Labor Law § 741 claim, her sole remaining cause of action, and dismissed the action, unanimously affirmed, without costs.

Plaintiff alleges that defendants had retaliated against her for lodging a complaint with defendant supervisors regarding the treatment of a patient. After plaintiff abandoned her post while on duty in the emergency room of defendant hospital, plaintiff's employment was terminated. After a grievance was filed by her union, an independent arbitrator, following an evidentiary hearing, determined that plaintiff's abandonment of her post violated hospital protocol and constituted misconduct warranting a six-month suspension without pay. In this action, plaintiff alleges that defendants' reaction to her abandonment of her post was merely a pretext to retaliate against her for complaining about the patient's treatment, and that defendants' alleged retaliation violated Labor Law § 741.

Plaintiff's abandonment of her post violated the hospital's policy and was a legitimate basis to discipline her (Rodgers v Lenox Hill Hosp. , 251 AD2d 244, 246 [1st Dept 1998], lv dismissed 92 NY2d 946 [1998]). The arbitrator's finding of misconduct warranting discipline was based on substantial evidence, and plaintiff has not challenged the arbitrator's determination as biased or otherwise improper. Accordingly, that determination is "highly probative" evidence that defendants did not retaliate against her, and plaintiff has failed to proffer sufficient evidence to raise a triable issue of fact as to a causal link between her complaint to her supervisors and defendants'

discipline (Collins v New York City Tr. Auth. , 305 F3d 113, 115, 119 [2d Cir 2002]; Tomasino v Mount Sinai Med. Ctr. & Hosp. , 2003 WL 1193726, *12-13, 2003 US Dist LEXIS 3766, *34-35 [SD NY, Mar. 13, 2003, No. 97-Civ-5252(TPG)]).

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 4, 2016

CLERK