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