Pugliese v Actin Biomed LLC

Pugliese v Actin Biomed LLC 2013 NY Slip Op 03746 Decided on May 23, 2013 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 May 23, 2013
Gonzalez, P.J., Friedman, Moskowitz, Feinman, JJ.
10159 103104/10

[*1]Lisa Pugliese, Plaintiff-Respondent,

v

Actin Biomed LLC, et al., Defendants-Appellants.




Wilson Elser Moskowitz Edelman & Dicker LLP, New York
(Celena R. Mayo of counsel), for appellants.
Bader, Yakaitis and Nonnenmacher, LLP, New York (Jesse M.
Young of counsel), for respondent.

Order, Supreme Court, New York County (Saliann Scarpulla, J.), entered June 14, 2012, which, insofar as appealed from, denied defendants' motion to dismiss the complaint in its entirety, unanimously modified, on the law, the amended complaint dismissed as to defendant Green, and otherwise affirmed, without costs.

The amended complaint alleged violations of specific FDA regulations in connection with clinical trials of an experimental drug, and some of those violations, if true, would present a substantial and specific danger to public health and safety (Remba v Federation Empl. & Guidance Serv., 76 NY2d 801, 802 [1990]).

The amended complaint also properly alleged retaliatory conduct and constructive discharge by defendants in that they humiliated, ostracized, and sexually harassed plaintiff, and told her that they would "make her life miserable until she quit," in response to her objections to the violations of the regulations by defendants (see Koester v New York Blood Ctr., 55 AD3d 447, 448-449 [1st Dept 2008]).

However, the amended complaint fails to allege that defendant Green was plaintiff's [*2]employer within the meaning of Labor Law § 740(b)(1) since he is not alleged to have any economic interest in plaintiff's employer or in its parent company, unlike the other corporate and individual defendants (see Patrowich v Chemical Bank, 63 NY2d 541, 542 [1984]).

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: MAY 23, 2013

CLERK