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FACTS

Dr. Foreman alleges that his former employer, Cuddy Medical Care, P.C. (“Cuddy”),

wrongfully terminated him when they fired him without notice or an opportunity for remediation.

The defendants plan to file a motion to dismiss once suit arises.

Dr. Foreman began working as a physician for Cuddy in 2009. There was no written

contract or offer letter, and Cuddy has no employee handbook or rules of conduct for its

employees. Dr. Foreman’s initial salary was $100,00 per year and he received consistent raises.

After seven years of working for Cuddy, Dr. Foreman complained to Cuddy’s Managing

Member, Lisa Cuddy, about the alleged activities of Gregory House, M.D. Such activities

allegedly included abusive and racist rants. Eventually, in June 2017, Dr. House’s license was

suspended for one year under N.Y. Education Law § 6530 for conduct unrelated to Dr.

Foreman’s complaints. However, Dr. House continued to practice medicine at Cuddy and

demanded Dr. Foreman assist him by writing prescriptions and signing medical charts. Dr.

Foreman alleges he only did so when, in his independent judgment, such things were correct and

warranted.

Dr. Foreman complained about Dr. House’s actions to Dr. Cuddy. Dr. Cuddy told Dr.

Foreman to “Listen to House. He knows what he’s doing. You’re just an employee, so follow

his instructions.” Dr. Foreman refused to follow Dr. House’s demands and as a result was fired

in August 2017.

QUESTION PRESENTED

Under N.Y. Education Law § 6530(11), will Dr. Foreman’s complaint of wrongful

termination against Cuddy prevail on a motion to dismiss in Queens County Supreme Court,

when Cuddy fired Dr. Foreman without notice or an opportunity for remediation?

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BRIEF ANSWER

It is unlikely that Dr. Foreman’s complaint of wrongful termination against Cuddy will

prevail on a motion to dismiss in Queens County Supreme Court under N.Y. Education Law §

6530(11), when Cuddy fired Dr. Foreman without notice or an opportunity for remediation

because Dr. Foreman’s employment was at-will and New York courts traditionally do not

recognize a cause of action for at-will employment.

DISCUSSION

Under N.Y. Education Law § 6530(11), Dr. Foreman’s allegation of wrongful

termination will probably be dismissed. Dr. Foreman claims Cuddy breached a contract when it

fired him without notice or an opportunity for remediation. However, even under N.Y.

Education Law § 6530(11), Dr. Foreman’s employment was at-will and there was no breach of

contract.

N.Y. Education Law § 6530(11) states that “permitting, aiding, or abetting an unlicensed

person to perform activities requiring a license” qualifies as professional misconduct. Under the

New York law, anyone who is found guilty of professional misconduct shall be subject to

penalties as prescribed in N.Y. Public Health Law § 230-a(1)-(6).

Dr. House was permitted to practice medicine in Cuddy, with a suspended license. With

such actions, Cuddy was guilty of “professional misconduct” as defined in N.Y. Education Law

§ 6530(11). Still, Dr. Foreman’s complaint would not prevail on a motion to dismiss because

this at-will employment is not recognized in New York courts.

New York courts have traditionally held that the law does not recognize a cause of action

for the termination of an at-will employee. See Murphy v American Home Product Corp., 58

N.Y.2d 293 (N.Y. 1983). In Murphy, the plaintiff alleged his firing was in retaliation for his

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revelation of illegal account manipulations to officers and directors of the defendant corporation.

Yet, the court refused to recognize a cause of action for wrongful discharge because they wanted

to await Legislative action. Id. Once Dr. Foreman refused to participate in illegal conduct, he

was fired. If Queens County Supreme Court were to apply the employment-at-will doctrine, they

would come to the similar conclusion that Dr. Foreman’s complaint should be dismissed.

Additionally, the court can claim that similar to Murphy, Dr. Foreman failed to show a violation

of penal law that has been held sufficient in other jurisdictions.

Murphy follows Martin v. The New York Life Insurance Co., 148 N.Y. 117 (N.Y. 1895),

which initially adopted New York’s at-will position in 1895. 58 N.Y.2d 293. Martin emphasized

Mr. Wood’s point of view that a general hiring does not import an employment for the year. 148

N.Y. 117. Applying the holding from Martin, the court will likely determine that Dr. Foreman’s

employment does not establish a contract between him and Cuddy. He was simply an at-will

employee. Following this holding, Dr. Foreman’s complaint will likely not sustain a motion to

dismiss.

Although courts do not usually allow causes of actions for wrongful termination of at-

will employees, some courts have made the exception. See Wieder v. Skala, 80 N.Y.2d 628

(1992). The plaintiff in Sullivan v. Harnish, 2012 N.Y. Lexis 984, attempts to fit within the very

narrow doctrine outlined in Wieder. In Wider, Wieder was an attorney associated with the

defendant firm. He was fired after he reported a fellow associate’s fraudulent actions, even

though senior partners advised against doing so. The court ruled that due to the nature of the

plaintiff’s job title, he had a specific duty to report any violations to the Disciplinary Committee

of the Appellate Division. The plaintiff’s claim sustained a motion to dismiss because of his

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implied-in-law obligation in relationship with the defendant firm. On the other hand, the

relationship and duty in Sullivan was not as critical as it was in Wieder.

Sullivan’s regulatory and ethical obligations as an employee were not “so closely linked

as to be incapable of separation” as were the duties in Wieder. Similarly, the court may find that

the narrow doctrine in Wieder would probably not be applicable here because the relationship

and duty presented in Wieder is different. Dr. Foreman’s regulatory and ethical obligations as an

employee were also not “so closely linked as to be incapable of separation.” 80 N.Y.2d 628.

The court in Wieder identified that by insisting the plaintiff disregard his duty as an attorney,

they were “making it impossible for plaintiff to fulfill his professional obligations.” Id.

However, if the Wider argument were successful, the court may find that Dr. Foreman’s

relationship as a doctor fit within the narrow scope of relationships identified in Wider. Id. In

such an instance, Dr. Foreman’s argument would prevail on a motion to dismiss.

Similarly, the court in Weiner v. McGraw-Hill, Inc., 57 N.Y.2d 458, allowed the

plaintiff’s cause of action. However, the court in Weiner differs than Dr. Foreman’s allegations

because Weiner showed sufficient evidence to support a contract being made. Consequentially,

Weiner also shows a breach of that contract. Id. There was no contract between Dr. Foreman

and Cuddy. Therefore, it is unlikely the court will follow the holding in Weiner.

CONCLUSION

Under the previous holdings in the Court of Appeals, it is likely that Queens County

Supreme Court will dismiss Dr. Foreman’s allegation of wrongful termination because the Court

of Appeals does not recognize a cause of action for at-will employment and Dr. Foreman does

not fit under the exceptions.