Miller v New York Univ.
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Miller v New York Univ. 2009 NY Slip Op 33317(U) May 26, 2009 Supreme Court, New York County Docket Number: 603020/08 Judge: Barbara R. Kapnick Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. . [* 1] ' :-~AG~ 1OF 7 . r ¢ SUPREME COURT OF THE STATE OF NEW YORK -:- NEW YORK COUNTY . - ... : " ' ' ~' a PRESENT: ' Hon. " ' : ,, '. ' ' , PART ~ '.': U':~;_~,,_. ' ;.::,:'~ u" ' B. RBARA R.-KAPNiCK ' A · r>~. J.': I : Justice ' r'~(-, I~DElI; NO ¢ .. < ! , " ~ ¢ -. y '. - ~ . , ' . " -; ' en '" w a: en w <t en , J ! f i i, ~ . ¢" :": " - u Zw CUO ' ~ -" 0 1 _' b ~ ~ Dated: _1-..:.5"-:.piA~r;-I-1m~9+___ =': Check one: U FINAL DISPOSITION , , ! .~ , . ' .' ,' .~ ,' .... -~ [* 2] 2 OF 7 PAGE SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK IA PART 39 - - --- -- - - -- -- -- - ------ - ----------------x RICHARD MILLER, DECISION/ORDER Index No. 603020/08 Motion Seq. No. 001 Plaintiff, - against - NEW YORK UNIVERSITY, NYU MEDICAL CENTER, NYU HOSPITALS CENTER and NEW YORK UNIVERSITY SCHOOL OF MEDICINE, a division of NEW YORK UNIVERSITY, ~--------------~ F I LED Defendants. BARBARA R. KAPNICK, -May 27 2009 J.: NEW YORK COUNTY CLERK'S OFFlCE In or about October 2007, the Board of Trustees of New York Uni versity ("NYU") passed a resolution to restructure the NYU Hospi tals Center ( "NYUHC") by combining the NYUHC with the New York University School of Medicine ("NYUSOM") to form the NYU Medical Center ("NYUMC"). In or about May 2006, in preparation for the reorganization, NYU adopted a Transition Stabilization Plan dated May 1, 2006, Robert M. Glickman, ("TSP") M. D., NYUSOM and Chief Executive Officer of NYUMC, By letter then Dean of the notified plaintiff Richard Miller, then Chief Financial Officer ("CFO") of NYUMC that he was "among a very select group of executives whom the University and Hospital trustees have designated as essential organization as we enter into a transitional period." to the [* 3] 3 OF 7 PACE Dr. Glickman further stated, in relevant part, as follows: The Transition Stablization Plan approved by the University and Hospital trustees is organized in three phases, as described below. - > From the date of my a nnouncement that I would step down as Dean/CEO, which was March 2; 2006, through September 1, 2007, or 6 months after the new Dean/CEO begins at NYU, whichever is lat er (Phase One), if you are terminated from your current position for a reason other than cause, you will be entitled t o a payment of 1.5 times your then current annual salary. From the end of Phase One through March 1, 2009 (Phase Two), if you are terminated from your current position for a reason other than cause, you will be entitled to a payment of 1.0 times your then current annual salary . If your employment continues through March 2, 2009, you \~ill not be entitled to any payment under Phase One or Phase Two, but you will be paid a one-time r etent ion bonus of 50 percent of your then c urrent annual salary. By letter dated January 3,2008, Dr. Robert I. Grossman, M.D ., CEO of NYUMC, notified plaintiff that his title within th e new organization would be "Vice Pre sident for Medical Center Finance" . Pl aintiff subsequently resigned from his employment. In a letter dated February 13, 2008 to Nancy Sanchez, Sr. Vice President and Vice Dean, Human Resources of NYUMC, plaintiff stated, in relevant part, as follows: AS I indicated in conversations with you , Richard Crater, and Andrew Litt, M.D., I v iewed the terminat i on of my position as NYUHC CFO and my subsequent demotion to Vi ce President, Finance very negatively. This action served to 2 [* 4] 4 OF 7 PACE diminish my stature both inside the organization and the hea lthcare industry. In addition, as I noted and it was agreed to by all parties, the action would have a negative impact on my future earnings potential, as a result of the lower compensation scale , for Vice Presidents as compa red to Chief Financial officers, in industry salary surveys. While I acknowl edge that I was verbally informed that the Medical Center leadership would take no action to reduce m salary at this time , y the CPO position termination clearly limited my future earnings potential both inside and outside the organization. Plaintiff contends that his "termination" from his "curre nt position" as CFO "for a reason other than cause" triggered defendants' payment obligation under the TSP. Plaintiff's Complaint seeks to recover damages for breach o f contrac t (first cause of action) and detrimental reliance (second c ause o f action) . Defendants now move for an order pursuant to CPLR and (7) grounds § 3211(a) (1) dismiss i ng plaintiff's Complaint in its entirety on the that plaintiff's claims are precluded by documentary evidence and fail to state a claim upon which relief can be granted as a matter of law. Plaintiff opposes that portion of the motion seeking to dismiss his brea ch of contract claim and cross - moves f o r an order pursuant to CPLR § 3212(c ) converting defendants' 3 motion into a [* 5] 5 OF 7 PAGE motion for summary judgment, and granting summary judgment in favo r of plaintiff on the first cause of action on the grounds that the documentation in this action establishes that he is entitled t o judgment in his favor as a matter o f law. Defendants argue that plaintiff's first cause o f action for breach of contract must be dismissed because : (i) plaintiff's atwill employment was not terminated; i . e., his salary and terms of employment remained the same, and his benefits actually increased; (ii) plaintiff's title change did not affect any o f the mate rial terms of his employment and the change in title actually consti tuted an expansion of plaintiff's responsibilities; and (iii) plaintiff voluntarily resigned his employment . Plaintiff, however, argues that [al Vice President position is a subs tantial demotion from my former CFO position, and it was viewed as such. There were fewer than ten officers that had "Chief" in their titles, while I estimate and more than 30 "VP" l eve l positions exist among defendants . "C" level positions have much more prestige both inside and outside NYU. Plaintiff further claims that his potential for salary and other growth at NYU and his opportunity f or advancement outside o f NYU were both substantia lly limited as a result of his alleged "demotion" (see, generally, Rudman v Cowles Communications, 30 NY2d 1, 10 [1972l which held that "[ilf an employee, a fortiori 4 [* 6] 6 OF 7 PAGE an executive employee, is engaged to fill a particular position, any material change in his duties, or significant reduction in rank, may const i tute a breach of his employment agreement"), and constituted a "termination" within the meaning of the TSP. Based on the papers submitted and the oral argument held on the record on March 24, 2009, this Court finds that there are disputed issues of fact as to whether or not the Vice President position constituted a demotion in the rank and responsibilit i es plaintiff held as CFO, and thus whether plaintiff was terminated from his "current position" within the meaning of the parties' agreement. Accordingly, that portion of defendants' motion seeking to dismiss plaintiff's first cause of action for breach of contract and plaintiff's cross-motion for summary judgment on his first cause of action are both denied. That portion of defendants' motion seeking to dismiss t h e second cause of action is granted without opposition. Defendants shall serve an Answer to plaintiff's claim for breach of contract within 20 days of service of a copy of this order with notice of entry. 5 [* 7] 7 OF 7 PAGE A preliminary conference shall be held in IA Part 39, Centre Street, Room 208 on July 15, 2009 at 10:00 a.m. This constitutes the decision and order of this Court. Dated: May dfp 2009 BARBARA R. J . S.C. F I LED May 272009 NEW YORK COUNTY CLERK'S OFACE 6 KAPrrrC1( 60
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