I. Introduction

Heinrichs v. Town of Brookhaven, 2025 NY Slip Op 07000 (App Div 2d Dept Dec. 17, 2025), is a significant Appellate Division decision at the intersection of New York public-employee whistleblower protection, contract enforcement against municipal employers, and federal First Amendment retaliation claims under 42 U.S.C. § 1983.

The plaintiff, Michael Heinrichs, was employed as a laborer by the Town of Brookhaven Highway Department from September 2013 until his termination in January 2019. He alleges that his employment was terminated in retaliation for reporting corruption within the Highway Department to federal and local authorities. The action asserted, among other things:

• a whistleblower claim under Civil Service Law § 75‑b (first cause of action),
• a breach of contract claim based on a 2017 stipulation of settlement with the Town (third cause of action), and
• a First Amendment retaliation claim under 42 U.S.C. § 1983 (sixth cause of action),

against the Town of Brookhaven, its Highway Department, and several Town officials (the “Town defendants”), as well as against the Town’s outside “labor counsel” law firm and an attorney at that firm (the “law firm defendants”).

The Supreme Court, Suffolk County (Baisley, J.), granted substantial portions of the defendants’ CPLR 3211(a) motions to dismiss, including dismissal of the key whistleblower, contract, and First Amendment claims against the Town defendants. On appeal, the Second Department partially reversed, reinstating:

• the Civil Service Law § 75‑b claim against the Town and Highway Department,
• the breach of contract claim based on the 2017 stipulation, and
• the First Amendment retaliation claim under § 1983 against the Town, the Highway Department, and two individual Town officials,

while affirming dismissal of the § 1983 claim as to one former official and leaving intact the dismissal (for procedural reasons) of a tortious interference claim against the law firm defendants.

The decision is doctrinally important for:

• clarifying what is sufficient to plead a municipal whistleblower retaliation claim under Civil Service Law § 75‑b,
• reaffirming the strong New York standard against early dismissal under CPLR 3211(a)(1) and (7),
• illustrating how a settlement stipulation can function as a contract limiting a municipality’s disciplinary discretion, and
• confirming that qualified immunity for individual officials will often be inappropriate to resolve on a pre-answer motion to dismiss.

II. Summary of the Opinion

A. Disposition of the Appeal

The Second Department’s holdings can be summarized as follows:

1. Appeal as to tortious interference (fifth cause of action) dismissed for lack of aggrievement.
   The plaintiff had not opposed the law firm defendants’ motion to dismiss the tortious interference claim in the trial court. Under CPLR 5511, a party may appeal only from an order that “aggrieves” them. Because Heinrichs effectively acquiesced to the dismissal below, he was not aggrieved and could not appeal that portion of the order.
2. Civil Service Law § 75‑b claim reinstated (first cause of action).
   The Court held that Heinrichs adequately pleaded a whistleblower retaliation claim under Civil Service Law § 75‑b against the Town and Highway Department, and that the documentary evidence did not “utterly refute” his allegations or conclusively establish a defense as a matter of law. Dismissal under CPLR 3211(a)(1) and (7) was therefore improper.
3. Breach of contract claim reinstated (third cause of action).
   The third cause of action alleged that the Town and Highway Department breached a 2017 stipulation of settlement—which stated that the Town would “not be arbitrary and capricious in administering discipline” to Heinrichs—by terminating his employment in an arbitrary and capricious manner. The Second Department held that defendants’ evidentiary submissions did not “utterly refute” this allegation, so dismissal was unwarranted.
4. First Amendment § 1983 retaliation claim partially reinstated (sixth cause of action).
   The Court drew a distinction among the individual defendants:
   • Dismissal of the § 1983 retaliation claim affirmed as to defendant Gallino, because his employment with the Town ended in August 2016—more than two years before Heinrichs’s January 2019 termination. The documentary evidence thus showed that Heinrichs had no viable claim against him.
   • Dismissal of the § 1983 retaliation claim reversed as to the Town, Highway Department, Losquadro, and Tricarico. Accepting the complaint’s allegations as true, Heinrichs adequately pleaded a First Amendment retaliation claim, and the Town defendants had not established entitlement to qualified immunity at the pleading stage.
5. Costs awarded to law firm defendants.
   The Court awarded one bill of costs to the law firm defendants, payable by the plaintiff, in light of their success in defending the appeal.

III. Detailed Analysis

A. Procedural Framework: CPLR 3211(a)(1) and (7)

1. Standard for CPLR 3211(a)(1) – Documentary Evidence

A recurring theme in the opinion is the stringent standard for dismissal based on “documentary evidence” under CPLR 3211(a)(1). The Court quotes Matter of Palmore v Board of Educ. of Hempstead Union Free Sch. Dist., 145 AD3d 1072 (2d Dept 2016):

“On a motion to dismiss a [complaint] pursuant to CPLR 3211(a)(1), the movant has the burden of providing documentary evidence that utterly refutes the [plaintiff’s] factual allegations, conclusively establishing a defense as a matter of law.”

The Second Department repeatedly applies this test:

• To reject dismissal of the § 75‑b claim: the documents did not “utterly refute” the allegation that his termination was retaliatory.
• To reject dismissal of the contract claim: the submissions did not “utterly refute” that the Town acted arbitrarily and capriciously, or that a breach of the settlement occurred.
• To affirm dismissal as to Gallino: the undisputed documentary record (his employment ending in 2016) did negate a crucial element— his involvement in the 2019 termination—so that particular claim failed as a matter of law.

The “utterly refute” threshold is intentionally demanding. It prevents defendants from converting the motion into a factual weighing exercise; if the defense turns on disputed facts or competing inferences, dismissal under (a)(1) is improper.

2. Standard for CPLR 3211(a)(7) – Failure to State a Cause of Action

The Court reiterates the familiar pleading standard, citing Watts v City of New York, 186 AD3d 1577 (2d Dept 2020) and Leon v Martinez, 84 NY2d 83 (1994):

“On a motion to dismiss a complaint pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the complaint is to be afforded a liberal construction, the facts alleged are presumed to be true, the plaintiff is afforded the benefit of every favorable inference, and the court is to determine only whether the facts as alleged fit within any cognizable legal theory.”

When a defendant submits evidence on an (a)(7) motion, the Court relies on Guggenheimer v Ginzburg, 43 NY2d 268 (1977), as quoted through Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714 (2d Dept 2022):

When evidentiary proof is considered on a CPLR 3211(a)(7) motion without conversion to summary judgment, “the criterion is whether the proponent of the pleading has a cause of action, not whether [the proponent] has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it ... dismissal should not eventuate.”

This combined framework is central to the Court’s decision to preserve Heinrichs’s:

• whistleblower claim, because the allegations, if true, supported a viable cause of action under § 75‑b;
• contract claim, because a plausible breach (arbitrary and capricious discipline) was alleged; and
• First Amendment claim, because the pleadings alleged retaliatory action by state actors following his speech on corruption.

The decision reaffirms that motions under CPLR 3211 are disfavored vehicles for resolving fact-intensive disputes in employment retaliation cases.

B. Civil Service Law § 75‑b: Public Employee Whistleblower Protection

1. Statutory Framework and Prior Precedent

Civil Service Law § 75‑b(2)(a)(ii) prohibits a public employer from taking adverse employment action against an employee based on that employee’s disclosure of certain misconduct. The Court quotes the statute, emphasizing two key elements:

• The employee must disclose information that they “reasonably believe[] to be true”; and
• The employee must “reasonably believe[] [the information] constitutes an improper governmental action.”

“Improper governmental action” is defined in Civil Service Law § 75‑b(2)(a) as:

“any action by a public employer or employee, or an agent of such employer or employee, which is undertaken in the performance of such agent’s official duties, whether or not such action is within the scope of his or her employment, and which is in violation of any federal, state or local law, rule or regulation.”

The Court relies on Tipaldo v Lynn, 26 NY3d 204 (2015), in which the Court of Appeals articulated the § 75‑b standard and held that an Assistant District Attorney’s reporting of misconduct could be protected. Tipaldo underscores that:

• the employee’s belief in the truth of the information must be reasonable; and
• the perceived misconduct must amount to a violation of law, not merely a policy disagreement or internal dispute.

2. Application in Heinrichs

Heinrichs alleged that:

• he reported “incidents of corruption” within the Highway Department to federal and local authorities; and
• the Town and Highway Department terminated his employment in retaliation for these disclosures.

At the pleading stage, the Court does not explore the exact nature of the alleged corruption; instead, it focuses on whether, assuming the allegations are true and liberally construed, they state a cognizable claim under § 75‑b. The Court concludes that:

“Here, accepting the facts as alleged in the second amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the first cause of action adequately stated a cause of action alleging a violation of Civil Service Law § 75‑b.”

The Town defendants had submitted documentary evidence, but the Court held that such materials:

“did not utterly refute the plaintiff’s allegations, inter alia, that his employment was terminated in retaliation for his disclosure of alleged corruption to authorities in violation of Civil Service Law § 75‑b or show that he does not have a cause of action on this basis.”

In support of that approach, the Court cites:

• Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d 896 (2d Dept 2021), and
• Lilley v Greene Cent. Sch. Dist., 168 AD3d 1180 (3d Dept 2019),

both of which involved § 75‑b claims and emphasize that factual disputes about retaliatory intent and causation generally cannot be resolved on a pre-answer motion.

3. Significance

The Heinrichs decision reinforces several practical points:

• A complaint that alleges:
  • specific disclosures of misconduct to external authorities, and
  • a termination following those disclosures,
  will ordinarily survive CPLR 3211 dismissal under § 75‑b, absent documentary proof that conclusively negates retaliation.
• Defendants cannot defeat a § 75‑b claim at the pleading stage merely by offering an alternative, facially legitimate reason for termination; that kind of factual dispute is for later stages of litigation.
• For municipal employees, the case is a strong affirmation that § 75‑b is a viable and robust cause of action when properly pleaded.

C. Breach of Contract: Enforcement of a Stipulation of Settlement

1. The 2017 Stipulation of Settlement

The third cause of action alleged a breach of contract by the Town and Highway Department. The contract at issue was a 2017 stipulation of settlement between Heinrichs and the Town, which provided, among other things, that the Town would:

“not be arbitrary and capricious in administering discipline to [the plaintiff].”

In New York practice, such stipulations—often resolving disciplinary charges or other disputes between public employers and employees—are binding contracts, enforceable according to their terms, unless contrary to statute or public policy.

2. Court’s Application

Heinrichs alleged that the Town and Highway Department breached the stipulation by:

• terminating his employment in a manner that was “arbitrary and capricious,” and thus
• violating the express contractual limitation on how discipline would be administered.

The Town defendants offered evidentiary submissions to show that the termination complied with the settlement and was not arbitrary or capricious. The Second Department concluded that those submissions:

“failed to utterly refute the plaintiff’s allegations that the Town and the Highway Department acted arbitrarily and capriciously in terminating his employment, in violation of the stipulation of settlement, and failed to demonstrate that the plaintiff’s allegation that the Town and the Highway Department breached the stipulation of settlement was not a fact at all and that no significant dispute exists regarding it.”

For this proposition, the Court cites Truesource, LLC v Niemeyer, 223 AD3d 694 (2d Dept 2024), which applied the Guggenheimer standard to a contract dispute and made clear that unless the defendant’s evidence eradicates any factual basis for the claim, dismissal is inappropriate.

3. Broader Implications

The decision highlights important practice points:

• Contractual limitations on discipline are enforceable. When a municipality agrees, via stipulation, not to act “arbitrarily and capriciously” in disciplining an employee, that language is not mere surplusage. It can support a breach of contract claim if discipline appears retaliatory or unjustified.
• CPLR 3211 is not a substitute for summary judgment. Fact-intensive questions—such as whether the employer’s conduct met the “arbitrary and capricious” standard—are typically not resolvable on a motion to dismiss.
• Parallel theories are permitted. Heinrichs proceeds on both a statutory whistleblower theory (§ 75‑b) and a contractual theory (breach of the stipulation). The Court’s analysis implicitly accepts the coexistence of those theories at the pleading stage, without treating the contract as precluding or subsuming the statutory claim.

D. First Amendment Retaliation Under 42 U.S.C. § 1983

1. Basic Elements of a § 1983 Claim

The Court recites the standard from Pressley v City of New York, 233 AD3d 932 (2d Dept 2024):

“To maintain a [42 USC] § 1983 action, a plaintiff must establish two elements: (1) that the conduct complained of was committed by a person acting under color of state law; and (2) that the conduct complained of deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States.”

In a public-employee free speech case, the protected right at issue is the First Amendment right not to suffer retaliation for protected speech. The Second Department quotes the Second Circuit’s formulation from Singer v Ferro, 711 F3d 334 (2d Cir 2013):

“[T]he First Amendment protects a public employee from retaliation by his or her employer for the employee’s speech only if the employee sp[eaks] (1) as a citizen (2) on a matter of public concern.”

This reflects the core holdings of the U.S. Supreme Court’s public-employee speech jurisprudence (not cited but backgrounded in Pickering v Board of Education and Garcetti v Ceballos):

• Speech must be made in the employee’s capacity as a citizen, not purely pursuant to official duties; and
• Speech must involve a matter of public concern (e.g., corruption, misuse of funds, serious mismanagement).

2. Application to Heinrichs’s Allegations

Heinrichs alleges that:

• he reported “incidents of corruption” within a municipal department, and
• Town officials and the Town itself retaliated by terminating his employment.

Reporting government corruption to federal and local authorities generally qualifies, on its face, as speech on a matter of public concern. And when it is not part of the employee’s official job duty to make such reports, it is typically treated as citizen speech.

The Court concludes that:

“accepting the facts as alleged in the second amended complaint as true, and according the plaintiff the benefit of every possible favorable inference, the sixth cause of action adequately stated a cause of action alleging retaliation in violation of the First Amendment pursuant to 42 USC § 1983 insofar as asserted against the Town defendants other than Gallino.”

This preserves Heinrichs’s § 1983 claim against:

• the Town of Brookhaven,
• the Town of Brookhaven Highway Department,
• Daniel P. Losquadro, and
• Steven Tricarico.

3. Qualified Immunity at the Pleading Stage

The Town defendants argued that they were entitled to qualified immunity—a doctrine that shields government officials performing discretionary functions from liability if their conduct did not violate clearly established law or if it was objectively reasonable for them to believe their conduct lawful.

The Court rejects dismissal on this ground, stating:

“Contrary to the Town defendants’ contention, they failed to establish at this stage of the action that the Town defendants other than Gallino are entitled to qualified immunity (see Sculti v Finley, 167 AD3d 796, 797‑798).”

Sculti v Finley confirms that qualified immunity is often fact-dependent and ill-suited to resolution on a motion to dismiss, especially where the nature of the officials’ conduct and the circumstances surrounding the alleged retaliation are disputed.

Practically, this means:

• Defendants cannot secure early dismissal on qualified immunity simply by invoking the doctrine; they must show, based on the complaint and permitted documents, that even on the plaintiff’s facts, no violation of clearly established rights is possible.
• Where the complaint alleges intentional retaliation for reporting corruption—a paradigm of clearly protected First Amendment activity—qualified immunity is particularly difficult to establish on the pleadings.

4. Dismissal as to Defendant Gallino

The same First Amendment cause of action was dismissed as to defendant Gallino. The reason was temporal and factual:

• Gallino’s employment with the Town ended in August 2016; and
• Heinrichs was not terminated until January 2019.

Given this undisputed timeline, the Court held that Heinrichs “does not have a cause of action against Gallino,” citing Guggenheimer: the alleged material fact that Gallino had some role in the termination “is not a fact at all.”

Legally, this reflects basic § 1983 principles:

• Individual liability requires personal involvement or participation in the alleged constitutional deprivation.
• A former official not employed by the municipality for more than two years before the challenged termination cannot plausibly be alleged—without more—to have participated in that specific adverse action.

E. Claims Against Outside Counsel and the Aggrievement Requirement

1. Dismissal of the Fifth Cause of Action Not Reviewable

The plaintiff asserted a fifth cause of action for tortious interference with contract against the law firm defendants (Cooper Sapir & Cohen, P.C., and David Cohen). In the Supreme Court, the plaintiff did not oppose the law firm defendants’ CPLR 3211 motion to dismiss this claim.

On appeal, the Second Department held that Heinrichs was not “aggrieved” as to that portion of the order:

“The plaintiff did not oppose that branch of the law firm defendants’ motion, and therefore, he is not aggrieved by so much of the order as granted that branch of the motion (see CPLR 5511; Birmingham v Linden Plaza Hous. Co., 210 AD3d 853, 854; Mixon v TBV, Inc., 76 AD3d 144, 156‑157).”

CPLR 5511 allows an appeal only by a party “aggrieved” by an order or judgment—meaning, generally, a party whose rights or interests have been adversely affected in a way they contested below. By not opposing the motion at the trial level, Heinrichs was deemed to have acquiesced in that dismissal, and could not challenge it on appeal.

2. Strategic and Doctrinal Implications

From a litigation standpoint:

• Parties must carefully decide which branches of a motion to dismiss to oppose. Failure to oppose may foreclose appellate review.
• Even if the legal theory might be viable, an unopposed dismissal can become effectively unreviewable, as in Heinrichs.

The Court nonetheless awards “one bill of costs” to the law firm defendants, reflecting their success on appeal, but the opinion does not reach the merits of their underlying dismissal.

IV. Complex Legal Concepts Simplified

1. “Utterly Refute” (CPLR 3211(a)(1))

For documentary evidence to justify dismissal, it must completely contradict the plaintiff’s factual allegations so that the claim cannot be true. If documents merely create a competing version of events or leave room for dispute, dismissal is improper.

2. “Failure to State a Cause of Action” (CPLR 3211(a)(7))

The court asks: If everything the plaintiff alleges is true, could they legally win? If yes, the case continues, even if the plaintiff may ultimately lose after evidence is presented.

3. Civil Service Law § 75‑b Whistleblower Protection

For a public employee to be protected under § 75‑b:

• They must report conduct they reasonably believe to be illegal (“improper governmental action”).
• The report can be internal or external, depending on the statute and circumstances.
• The employer cannot discipline or fire them because of that report.

4. “Improper Governmental Action”

This refers to actions by government employees or employers, undertaken while doing their jobs, that violate a law, rule, or regulation—such as corruption, fraud, or unlawful favoritism.

5. “Arbitrary and Capricious” Discipline

“Arbitrary and capricious” is a legal phrase meaning that a decision:

• Has no rational basis, or
• Is made in a whimsical, unreasonable, or irrational manner.

If a municipality contractually promises not to act arbitrarily and capriciously, it must have a reasonable, fact-based justification for its disciplinary actions.

6. § 1983 and “Under Color of State Law”

For § 1983:

• “Under color of state law” means the defendant was using power or authority given by the government when they acted (for example, a public official making employment decisions).
• The plaintiff must show deprivation of a constitutional right, such as the First Amendment right to speak on matters of public concern.

7. Public Employee First Amendment Retaliation

A public employee is protected from retaliation when:

• They speak as a citizen (not solely in their official job role); and
• Their speech deals with a matter of public concern (e.g., corruption, safety violations, misuse of public funds).

Reporting corruption to outside law enforcement is a classic example of such protected speech.

8. Qualified Immunity

Qualified immunity protects government officials from personal liability for damages if:

• the law was not “clearly established” at the time of their conduct, or
• a reasonable official could have believed their actions were lawful.

At the motion-to-dismiss stage, courts rarely grant qualified immunity unless the complaint itself shows that, even accepting all allegations as true, no clearly established right could have been violated.

9. “Aggrieved” Party (CPLR 5511)

To appeal, a party must be “aggrieved,” meaning the order harmed them in a way they opposed in the lower court. If they did not contest that part of the order below, they generally cannot appeal it.

V. Impact and Future Implications

1. Strengthening the Pleading-Stage Position of Municipal Whistleblowers

Heinrichs will likely be cited by plaintiffs in future cases to resist early dismissal of § 75‑b claims. It confirms that:

• Merely presenting a purportedly legitimate reason for termination does not suffice to dismiss a whistleblower claim at the outset; defendants must conclusively negate the retaliation theory.
• Reports of “corruption” to external authorities, followed by adverse action, will ordinarily meet the minimal pleading threshold for “improper governmental action” and causation.

2. Municipal Employers and Settlement Agreements

The reinstated contract claim has concrete implications:

• Municipalities that enter into stipulations promising not to act “arbitrarily and capriciously” in future discipline may face breach-of-contract liability if later discipline appears retaliatory or disproportionate.
• Legal counsel should scrutinize such clauses in settlement negotiations and advise public employers about the future litigation risks such language creates.

3. Parallel State and Federal Retaliation Theories

Heinrichs proceeds simultaneously under:

• New York Civil Service Law § 75‑b, and
• the federal First Amendment via § 1983.

The Second Department’s willingness to sustain both claims at the pleading stage underscores that:

• Public employees can, in appropriate cases, seek both statutory whistleblower remedies and constitutional remedies arising from the same course of retaliation.
• Courts will separately analyze each theory’s elements and defenses (e.g., contract defenses, statutory requirements, and qualified immunity).

4. Qualified Immunity and Early Motions Practice

By rejecting the Town defendants’ qualified immunity argument at the 3211 stage, the Court sends a clear signal:

• In fact-intensive retaliation cases, qualified immunity will rarely justify dismissal before discovery clarifies what the officials knew, what they did, and why.
• Defendants seeking to assert qualified immunity should be prepared to raise it again at summary judgment, when a full factual record exists, rather than expect resolution on the pleadings alone.

5. Narrowing Individual Liability Based on Temporal Connection

The dismissal of claims against Gallino illustrates the importance of timing and personal involvement in § 1983 suits:

• Officials who left government well before the challenged adverse action may be insulated from liability as a matter of law, if no facts plausibly connect them to the decision at issue.
• Plaintiffs must plead specific facts alleging how each individual defendant personally participated in or caused the retaliatory act.

6. Appellate Strategy: Do Not Ignore Motions Below

Finally, the treatment of the law firm defendants underscores a procedural lesson:

• Once a plaintiff declines to oppose a branch of a dismissal motion, they effectively forfeit appellate review of that ruling, absent unusual circumstances.
• Counsel must be strategic and thorough in deciding which arguments to raise at the trial level, particularly where multiple defendants advance overlapping motions.

VI. Conclusion

Heinrichs v. Town of Brookhaven stands as an important modern precedent in New York for municipal whistleblower and retaliation litigation. The Second Department’s decision:

• reaffirms the demanding standards governing CPLR 3211 motions, especially the “utterly refute” requirement for documentary evidence;
• confirms that well-pleaded Civil Service Law § 75‑b claims will not be easily dismissed when they allege retaliation for reporting corruption to external authorities;
• recognizes the enforceability of settlement stipulations that constrain municipal disciplinary discretion and allows employees to pursue breach-of-contract remedies based on “arbitrary and capricious” discipline;
• preserves robust First Amendment retaliation claims under § 1983 against municipal employers and officials, while appropriately limiting liability where no plausible personal involvement exists; and
• underscores the limited role of qualified immunity at the pleading stage and the importance of proper opposition to motions at the trial level for preserving appellate rights.

Taken together, these principles ensure that public employees who allege retaliation for reporting governmental corruption receive a meaningful opportunity to develop their claims, while also clarifying the procedural and substantive boundaries that govern such suits in New York’s courts.