A recent court decision in Kings County called Della Pietra v. Poly Prep Country Day School has expanded who can bring a cause of action under whistleblower provisions of the New York Not-for-Profit Corporation Law. While the case is significant, and potentially persuasive, it is not a binding precedent.
The facts of the case are interesting. Della Pietra was working at Brooklyn’s Poly Prep Country Day School when an administrator, employees, students and alumni took a trip to Cuba, apparently for the stated purpose of “a learning experience.” Indeed. Pietra became privy to what really occurred in Cuba: underage drinking, smoking, and participation in prostitution. When she went to the Board of Trustees and reported what she knew, she was allegedly harassed, defamed and ultimately fired.
Pietra subsequently filed a suit alleging mental anguish and humiliation, based on the school’s failure to comply with the “Whistleblower Policy” of New York’s Not-for-Profit Corporation Law. Poly Prep Country Day School responded by moving to dismiss the case, arguing that only the Attorney General can commence a cause of action under the Whistleblower Statute, so that Pietra had no standing, as a private individual, to bring the case.
Kings County Supreme Court Justice Loren Baily-Schiffman ruled that, in contrast with other legislation, the New York Whistleblower Statute does not exclusively give to the government the right to sue for violation of the statute. So, she held, Pietra is a member of the class of people covered by the law, and allowed the suit to proceed.
I had always understood, and apparently so had most courts, that only the Attorney General could bring a cause of action onto the New York State Whistleblower Statute. In this instance, the judge said there’s an implied right of action for a private party to bring this kind of a lawsuit. This may be the only time this has happened so far, but it doesn’t mean it might not happen in the future.
The takeaway is for both employees and employers: Be aware that even if it’s not a government place of work, there’s protection for an employee who reports unsavory events or inappropriate conduct.
Mark S. Kaufman
Kaufman & Kahn
747 Third Avenue
New York, NY 10017
Tel. (212) 293-5556
Fax. (212) 355-5009