Introduction

In Lopiccolo v. Holtsville Fire District, 2025 NY Slip Op 05513 (App Div 2d Dept Oct. 8, 2025), the Appellate Division, Second Department issued a significant decision mapping the correct causes of action available to public employees of municipal fire districts and tightening pleading and timeliness rules across several common employment-related claims.

The plaintiff, Brian Lopiccolo, alleged he was wrongfully terminated in retaliation for disclosing suspected financial irregularities within the Holtsville Fire District. He asserted an array of claims against the District and affiliated entities and individuals, including whistleblower retaliation under Civil Service Law § 75-b, Labor Law §§ 215 and 193, a federal civil rights claim under 42 U.S.C. § 1983, defamation and defamation per se, and a standalone claim for “intentional and willful conduct” (effectively a punitive damages bid).

The Supreme Court (Suffolk County) had denied the defendants’ CPLR 3211 motion to dismiss the amended complaint. On appeal, the Second Department modified, permitting only a pared-down § 75-b claim to proceed—and then only against the District and only to the extent it was timely as to the termination. The decision squarely holds that municipal fire district employees are outside the protections of Labor Law §§ 215 and 193; confirms the one-year limitations period that governed § 75-b claims when this action was commenced; rejects any tolling that would revive already-expired claims; clarifies that boards and affiliated entities not shown to be separate or involved must be dismissed; and enforces strict pleading standards for defamation.

Summary of the Opinion

• Civil Service Law § 75-b claim may proceed against the District at the pleading stage: the plaintiff sufficiently alleged he disclosed suspected “improper governmental action” and suffered adverse action (termination) because of that disclosure.
• Timeliness strictly enforced: at the time suit was commenced (March 9, 2021), § 75-b claims carried a one-year statute of limitations. Only the retaliatory termination on March 13, 2020 falls within that period. Alleged adverse acts from 2014 and 2018 are time-barred. Executive Order 202.8 did not revive claims that had already expired before its issuance.
• Non-District defendants dismissed from the § 75-b claim: the Board of Fire Commissioners is not a separate suable entity apart from the District on these allegations; and the amended complaint failed to allege involvement by the other named non-District defendants in the termination.
• Labor Law § 215 (retaliation) dismissed: the statute does not apply to municipal employees; the District was alleged to be a municipal corporation.
• Labor Law § 193 (wage deductions) dismissed: governmental agencies are exempt from Article 6’s “employer” definition.
• Section 1983 claim dismissed: as an at-will employee, plaintiff lacked a constitutionally protected property interest in his continued employment.
• Defamation and defamation per se dismissed: the complaint did not satisfy CPLR 3016(a)’s strict particularity requirement as to the place of publication and to whom statements were made.
• “Intentional and willful conduct” claim dismissed: New York recognizes no independent cause of action for punitive damages, and with the defamation claims dismissed there is no substantive claim to which punitive damages could attach.
• Disposition: The order is modified to grant dismissal of all claims except the § 75-b claim against the District, which survives only as to the timely termination allegation; costs awarded to defendants.

Analysis

A. Precedents Cited and Their Role

• Matter of O'Hara v Board of Educ., Yonkers City Sch. Dist., 198 AD3d 896: The court quotes O’Hara for the § 75-b standard: protection for a public employee who discloses information the employee “reasonably believes to be true” and reasonably believes constitutes “improper governmental action.” This frames the threshold pleading sufficiency and supports allowing the § 75-b claim to proceed against the District.
• Donas v City of New York, 62 AD3d 504: Cited for the one-year limitations period applicable to § 75-b claims at the time the action was commenced. Anchors the dismissal of alleged retaliatory acts predating the lookback.
• Dish Realty, LLC v Town of Huntington, 122 AD3d 665: Establishes that a governing board is not a separate entity from the municipality—“a town board… cannot and does not exist separately and independent from the town.” The Second Department applies that logic to the Board of Fire Commissioners, finding no basis on the pleadings to treat the Board as distinct from the District.
• Reyes v Seaqua Delicatessen, Inc., 234 AD3d 88: Provides the general statement of Labor Law § 215 protections, and, critically, highlights the exclusion for “employees of the state or any municipal subdivisions or departments thereof.” This supports dismissal of the § 215 claim against a municipal corporation employer.
• Commissioner of the N.Y. State Dept. of Transp. v Polite, 236 AD3d 82: Invoked to justify reaching certain legal contentions raised for the first time on appeal where they present pure questions of law apparent on the face of the record and not avoidable if timely raised (here, the inapplicability of Labor Law §§ 215 and 193 to municipal employers).
• Borrerro v Haks Group, Inc., 165 AD3d 1216; Trakis v Manhattanville Coll., 51 AD3d 778; Natalizio v City of Middletown, 301 AD2d 507: Together they set out § 1983’s requisites and the rule that at-will employees lack a protected property interest in continued employment—defeating a due process-based § 1983 claim on these facts.
• Greenberg v Spitzer, 155 AD3d 27; Laguerre v Maurice, 192 AD3d 44: Recite the elements of defamation and categories of per se defamation. Provide the substantive framework against which the pleading is measured.
• Lemieux v Fox, 135 AD3d 713; Tsamasiros v Jones, 232 AD3d 816; Nofal v Yousef, 228 AD3d 772; Oluwo v Mills, 228 AD3d 879: Emphasize CPLR 3016(a)’s stringent particularity requirement in defamation cases—requiring the exact words, time, place, manner, and the specific recipients. The failure to plead “place” and “to whom” is dispositive.
• Gatz v Otis Ford, Inc., 274 AD2d 449; Liker v Weider, 41 AD3d 438; Gershman v Ahmad, 156 AD3d 868; Podesta v Assumable Homes Dev. II Corp., 137 AD3d 767: Collectively confirm that punitive damages require actual malice, are not an independent cause of action, and are parasitic to a substantive claim—all of which underwrite dismissal of the “intentional and willful conduct” count when defamation claims fall.

B. The Court’s Legal Reasoning

1) The Viable Path for Public Employee Whistleblowing: Civil Service Law § 75-b

The court accepts as true the pleading that Lopiccolo investigated “discrepancies and inconsistencies” in District financial reports, reported them to a former commissioner, and thereafter experienced hostility culminating in termination. Those allegations fit the contours of § 75-b(2)(a)(ii): disclosure, reasonable belief as to truth, and reasonable belief of improper governmental action, followed by adverse employment action.

2) Statute of Limitations and Executive Tolling

The action was filed March 9, 2021. At that time, § 75-b claims carried a one-year limitations period (by reference to former Labor Law § 740[4][a]). Consequently, only alleged retaliation occurring within one year—i.e., the March 13, 2020 termination—can be considered. Earlier allegations from 2014 and 2018 are time-barred.

The plaintiff’s reliance on Executive Order 202.8 (issued March 2020), which tolled certain deadlines due to the COVID-19 emergency, failed to resuscitate claims already extinct before the EO’s effective date. The court is explicit: the executive toll did not revive claims whose limitation periods had already expired.

3) Proper Defendants for § 75-b: The District, Not Its Board or Affiliated Entities

Using the reasoning from Dish Realty, the court holds that the Board of Fire Commissioners is not a free-standing juridical person distinct from the District for purposes of this suit on the pleaded facts. The “nondistrict defendants”—including the Board, Holtsville Fire Department, Inc., Holtsville Fire Company, and several individuals—were also dismissed from the § 75-b claim because the amended complaint did not allege how they participated in, or were legally responsible for, the plaintiff’s termination by the District.

4) The Inapplicability of Labor Law §§ 215 and 193 to Municipal Employees

Labor Law § 215 excludes “employees of the state or any municipal subdivisions or departments thereof.” Because the amended complaint itself alleged that the District is a “municipal corporation,” plaintiff was a municipal employee, placing him outside § 215’s ambit.

Similarly, Labor Law § 193 (prohibiting certain wage deductions) arises under Article 6, which defines “employer” to exclude governmental agencies (Labor Law § 190[3]). That categorical exclusion compels dismissal. The court, relying on Polite, correctly reaches both issues although they were raised for the first time on appeal, as they present pure questions of law apparent on the face of the record.

5) Section 1983 and At-Will Public Employment

To state a § 1983 claim premised on wrongful termination, a plaintiff must allege deprivation of a constitutionally protected property interest. At-will employment confers no such interest. The court, citing Trakis and Natalizio, holds the § 1983 claim defective because the plaintiff was at-will and thus had no property interest in continued employment.

6) Defamation: Strict Pleading Required by CPLR 3016(a)

Even accepting that the amended complaint recited the allegedly defamatory statements and when they were made (on or about January 17, 2020), it failed to plead where they were published and to whom they were communicated. Given CPLR 3016(a)’s strict enforcement, that omission mandates dismissal of both defamation and defamation per se.

7) No Standalone Claim for Punitive Damages

The count labeled “intentional and willful conduct” is, in essence, a request for punitive damages. New York law does not recognize an independent cause of action for punitive damages; punitive relief is “parasitic,” available only upon a viable substantive tort or statutory violation where malice is proven. With the defamation claims dismissed, there is no surviving claim to which punitive damages could attach. That count is dismissed as a matter of law.

C. Impact and Practical Consequences

1) Clear Channeling of Public Employee Retaliation Claims

This decision reinforces that municipal employees—including those of municipal fire districts—must ground retaliation claims in Civil Service Law § 75-b, not in Labor Law § 215. Plaintiffs should structure pleadings accordingly, avoiding misdirected reliance on private-sector statutes.

2) Timeliness: The One-Year Window (as of Commencement)

The Second Department applies the one-year limitations period that governed § 75-b when this action was filed. Counsel must:

• Calendar the correct limitations period based on the law at the time of commencement.
• Allege at least one retaliatory act within the lookback; earlier discrete acts may be irretrievably time-barred.
• Recognize that executive tolling does not revive claims that were already time-barred before the toll took effect.

3) Naming Proper Defendants

Plaintiffs should sue the actual public employer (here, the District) and refrain from naming governance bodies (like a board of commissioners) as separate defendants absent a basis for separate legal identity. Conclusory naming of affiliated entities or individuals will not suffice; plead specific involvement in the adverse action.

4) Limits on Federal Remedies in Public Employment

At-will public employees cannot bootstrap termination claims into § 1983 due process claims absent a cognizable property interest. The case underscores the importance of identifying a statutory or contractual tenure-like interest if pursuing federal constitutional claims; otherwise, § 75-b remains the appropriate state-law vehicle.

5) Defamation Pleading Discipline

The decision is a reminder of the unforgiving pleading standards for defamation:

• Set out the exact words.
• Allege when, where, how, and to whom the statements were made.
• Failure to do so will result in dismissal at the CPLR 3211 stage.

6) Punitive Damages Are Not a Standalone Claim

Labeling a count “intentional and willful” will not create a separate cause of action for punitive damages. Counsel should instead plead punitive damages as a form of relief tied to a substantive claim that supports such damages.

Complex Concepts Simplified

• CPLR 3211(a): A motion to dismiss at the outset of a case, typically arguing the complaint fails to state a legally cognizable claim even if its facts are assumed true.
• Civil Service Law § 75-b: New York’s public-sector whistleblower statute protecting public employees who disclose, in good faith, information they reasonably believe shows improper governmental action, from retaliatory personnel actions.
• Labor Law § 215: A private-sector anti-retaliation statute; expressly excludes employees of the state and its municipal subdivisions or departments.
• Labor Law § 193 / Article 6: Restricts wage deductions by “employers,” a term that does not include governmental agencies, meaning public employers are generally outside its scope.
• 42 U.S.C. § 1983 (Property Interest): To claim unconstitutional deprivation via termination, a plaintiff must have a recognized property interest in continued employment (e.g., tenure). At-will employees generally lack this interest.
• Defamation Pleading (CPLR 3016[a]): Special rule requiring exacting detail—exact words, time, place, manner, and the specific recipients of the alleged defamatory statements.
• Executive Order 202.8 Tolling: A COVID-era pause of some deadlines that did not resurrect claims whose limitations periods expired before the Executive Order took effect.
• Punitive Damages: A form of enhanced damages intended to punish egregious misconduct; not a standalone cause of action and must be tied to a viable substantive claim and supported by proof of malice or equivalent culpability.
• Municipal Corporation: A local governmental entity (like a fire district). Employees of such entities are “municipal employees” for purposes of statutes like Labor Law § 215.
• “Pure question of law” on appeal: Appellate courts may consider purely legal issues raised for the first time on appeal if they appear on the face of the record and could not have been avoided had they been raised earlier.

Conclusion

Lopiccolo v. Holtsville Fire District delivers a clear roadmap for litigating public-sector retaliation and related employment claims in New York:

• For municipal employees, Civil Service Law § 75-b is the correct whistleblower vehicle; Labor Law §§ 215 and 193 do not apply.
• Timeliness is critical: at the time of this action’s commencement, § 75-b claims were subject to a one-year limitations period; executive tolling could not revive expired claims.
• Proper defendant identification matters: governance boards and affiliated entities are not automatically separate suable entities; specific involvement in adverse action must be pled.
• Federal constitutional claims based on termination fail without a recognized property interest—most at-will arrangements will not suffice.
• Defamation must be pled with precision, and punitive damages cannot stand alone.

The Second Department’s opinion thus streamlines and clarifies the remedies available to municipal fire district employees, tightens pleading standards, and enforces statutory boundaries, offering robust guidance for future litigation in the public employment and defamation contexts.