Capobianco v. American Stock Exchange

Order, Supreme Court, New York County (Elliott Wilk, J.), entered June 21, *1901995, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiffs claim that his employment was terminated in violation of Labor Law § 740, the whistleblowers’ statute, after he had brought to his supervisors’ attention violations of law in connection with the disposal of asbestos during a renovation project, is without merit, since his submissions fail to satisfy the requirement of an "actual” violation of law (Bordell v General Elec. Co., 88 NY2d 869, 871). It makes no difference whether plaintiff had a reasonable belief that violations had occurred (supra), although we note that he does not specify any. In contrast to plaintiff’s lack of proof, defendant convincingly documents that plaintiff had received a warning, which he acknowledged, in connection with his use of racial slurs and racially provocative language concerning or directed at fellow employees; that despite the warning, he failed to refrain from such conduct; and that employment was terminated for that reason. Plaintiff’s remaining contentions are without merit. Concur—Murphy, P. J., Sullivan, Rubin, Ross and Williams, JJ.