Matter of Fruehwald v Hofstra Univ.

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[*1] Matter of Fruehwald v Hofstra Univ. 2010 NY Slip Op 50878(U) [27 Misc 3d 1224(A)] Decided on April 12, 2010 Supreme Court, Nassau County Lally, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law ยง 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 12, 2010
Supreme Court, Nassau County

In the Matter of the Application of Edwin Scott Fruehwald, Petitioner,


Hofstra University, STUART Rabinowitz, as President of Hofstra University, Herman Berliner, as Provost and Senior Vice-President of Hofstra University and Nora Demleitner, as Dean of Hofstra University School of Law, Respondents.



For Petitioner:

Edwin Scott Fruehwald

Petitioner Pro Se

255 Ziska Avenue B8

Jericho, NY 11753

For Respondents:

Farrell Fritz, PC

Attorneys for Respondents

1320 RXR Plaza

Uniondale, NY 11556

Ute Wolff Lally, J.

In this Article 78 proceeding petitioner seeks reversal of a determination by the Dean of Hofstra University School of Law ("the Law School") that denied his application for [*2]renewal of a long-term contract for five years as a member of the Legal Writing faculty at the Law School, on the grounds that the Dean's determination was arbitrary and capricious. Petitioner further seeks a raise of at least 4.25% retroactive to September 2009, and a summer research grant of $12,000 for the summer of 2009.


Petitioner joined the faculty at the Law School on July 15, 2000, to teach legal writing. In 2001 and 2005, he applied for and was granted appointments in accordance with the Law School's then applicable Standards. New Standards for reappointment went into effect in 2007. In September, 2008, under the New Standards, petitioner applied for reappointment for a five-year contract.

In a report dated March 26, 2009, the Committee on Appointments ("the Committee") did not recommend that petitioner be reappointed for a five-year contract due to his "significant decline in teaching," the Standard for denial of reappointment for a five-year contract for legal writing faculty (Standard 6.01). Instead the Committee recommended appointing petitioner to a "visiting or probationary" contract "while he works on improving his teaching and receives further guidance and feedback"(Committee Report, p. 9; sees Standard 2.01).

The Dean met with petitioner on April 1, 2009, to advise him of the Committee's conclusions, with which she concurred. According to the Dean, she advised petitioner that she would recommend his appointment as a Visiting Professor of Legal Research and Writing during the 2009/2010 academic year, if he opted to withdraw his application from consideration for a long-term appointment. She states that petitioner indicated that he wished to withdraw his application and accept a one-year appointment.

On May 8, 2009, President Rabinowitz sent petitioner a letter officially appointing him to the Visiting Professor position. Petitioner signed the letter under protest "to mitigate damages" and expressly reserved his rights.

Although the new standards for the Law School do not provide for an appeal or reconsideration of the Dean's decision on an application for reappointment, petitioner served an "Appeal from Denial of Renewal of Presumptively Renewable Contract", together with a letter to President Rabinowitz requesting an appeal. President Rabinowitz asked Provost Berliner to respond to the appeal. Upon request by the Provost, the Dean submitted a memorandum addressing petitioner's appeal, and petitioner submitted a response. By letter dated November 12, 2009, petitioner was advised by the Provost that he did not find any evidence of arbitrary or capricious action on the part of the Law School administration or faculty in the denial of petitioner's request for a five-year appointment.

Petitioner commenced this proceeding on January 12, 2010. He challenges the determination of the Committee and the Dean on the grounds that they failed to follow the new Standards, they failed to follow their own rules, and that the Committee Report was based on errors of fact. He insists that the resulting conclusion was therefore arbitrary and capricious. Respondents deny these charges, and argue that the petition is untimely.

Respondents' limitations defense

At the outset the Court must address the argument that the petition is untimely. The four-month limitations period for commencement of a special proceeding under Article 78 of the CPLR begins to run when the "determination to be reviewed becomes final and binding upon the petitioner" (CPLR 217; see Roufaiel v Ithaca College, 241 AD2d 865). [*3]An administrative determination becomes final and binding when petitioner receives notice of the determination and is aggrieved by it (Robertson v Board of Education of City of New York, 175 AD2d836, 837).

Respondents argue that once petitioner accepted the one-year appointment, respondents' decision regarding his September 2008 five-year reappointment application was final. They rely upon case law establishing that reconsideration of an administrative determination, in the absence of a mandatory requirement not found here, does not toll the four-month limitations period (see Lubin v Board of Education of the City of New York, 60 NY2d 974, rearg. den. 61 NY2d 905, cert. den. 469 US 823; Roufaiel, supra). Furthermore oral notice may suffice where its impact on the petitioner is evident (Bargstedt v Cornell University, 304 AD2d 1035).

For the record, this argument seems to be at odds with the memorandum from Vice-Dean Gundlach (Exhibit E to the return), which advises the Provost that plaintiff had declined to reapply for the five-year appointment.

Petitioner insists that the Dean's decision did not become final and binding upon him until he received the written notice found in the Provost's letter dated November 12, 2009, because at that point his administrative remedies were exhausted. Exhaustion of remedies is reached where the injury inflicted may not be significantly ameliorated by further administrative action or by steps available to the complaining party (Walton v New York State Dept. of Correctional Services, 8 NY3d 186).

The Court is not persuaded by petitioner's exhaustion argument because the Law School was not required to consider his appeal. The Court is also not persuaded by respondents' voluntary reconsideration argument because respondents have produced no documentation supporting the result, namely, that acceptance of the one-year reappointment officially ended the application for the five-year appointment. It is simply not clear from the record how petitioner would have notice of the critical point at which the denial of his application was final and binding.

When an administrative body itself creates ambiguity and uncertainty as to the finality of its determination, the courts should resolve the ambiguity "against it in order to reach a determination on the merits and not deny a party his day in court" (Mundy v Nassau County Civil Service Commission, 44 NY2d 352, 358). Here, having created the ambiguity and uncertainty as to the finality of the Dean's determination, the Court must resolve the ambiguity against the respondents. Accordingly, respondents' limitations defense is rejected. The Court finds that the date on which the four-month limitations period began to run in this case is the date on which petitioner received the Provost's letter dated November 12, 2009. As this special proceeding was commenced in January 2010, it is timely.

The standard for judicial review

The courts should not "invade, and only rarely assume academic oversight, except with the greatest caution and restraint, in such sensitive areas as faculty appointment, promotion, and tenure, especially in institutions of higher learning" (Matter of Pace College v Commission on Human Rights of City of New York, 38 NY2d 28, 38; In re Bigler v Cornell University, 266 AD2d 92, lv app dsmd 95 NY2d 777 and rearg den 95 NY2d 849; Loebl v New York University, 255 AD2d 257). The standard for judicial review is limited to whether [*4]the institution has acted in good faith or whether its action was arbitrary and capricious or irrational (Tedeschi v Wagner College, 49 NY2d 652, 658; see also Lipsky v New York Institute of Technology, 69 AD3d 725). With respect to faculty appointments or the denial of appointments, a private university in New York is held to the standard of "substantial compliance" with its own rules and procedures (Gurstein v Bard College, Graduate Center for Studies in the Decorative Arts, 280 AD2d 264); Loebl, supra at 258; see also Tedeschi, supra).


In accordance with the new Standards, a three-person Committee convened to review petitioner's application for reappointment. The Committee presumed petitioner demonstrated teaching "excellence" and considered only whether there was "a significant decline in the legal writing teacher's performance" in regard to teaching, contributions to the field and service (Standard 6.01; see 6.02 and 6.02). There is no doubt that the Committee used the correct Standard to evaluate petitioner, and that the Dean concurred with the Committee Report in all respects. That the Provost used a different standard on petitioner's appeal is without consequence, as the Standards provided no requirements whatever for any appeal.

The Committee reviewed petitioner's teaching schedule and personal submissions, and considered student evaluations during the relevant period. Different Committee members observed his classes on two occasions, and a third Committee member observed petitioner conduct a student conference.

One class observer described his overall impression as follows: petitioner "would tell the students the answer rather than helping them or guiding them through the process of seeing and figuring it out for themselves." The other class observer wrote, inter alia, "petitioner does hone in on some non-verbal cues (e.g., a student shaking his head in confusion during a particular example), but does not seem to notice more subtle ones (e.g., many students not looking up)." The conference observer wrote that petitioner did most of the talking, and that the observer's main concern was that the conference "was mostly a lecture" and "not generally interactive."

While the standards envision that two student conferences would be observed, that only one such observation took place was not a substantial deviation from the standards, especially given the concerns raised in all three instances that petitioner was observed. Petitioner further complains that the three members of the Committee changed between the fall and the spring. This change could only have worked in petitioner's favor, by allowing more faculty members to have input. Finally, that committee members observing petitioner did so for only 50 minutes, is not a problem as that is the standard practice where many classes are taught in double hours.

Petitioner makes numerous claims regarding the use of his student evaluations from 2005 through the fall of 2008, including that the use of the numerical evaluations was improper as it was not statistically significant. As noted by the Dean in her memo to the Provost, while the ratings by themselves may not have been statistically significant, "combined with other data, they do support the committee's conclusion". The Dean admits that the Committee used an incorrect number in its analysis (overall course ratings rather than overall instructor ratings had been used), but argues that the error worked in petitioner's favor. In addition, the Provost testifies that course evaluations may be relied [*5]upon where at least 10 students participated.

Petitioner further complained that his numerical evaluations declined less than the average for the legal writing faculty as a whole. In response, respondents note that within the last four years there has been an increased number of visitors and new faculty appointments for Legal Writing courses.

Although petitioner's Spring 2008 evaluations were an improvement, those evaluations were not available when the Committee rendered its report. Further, the Committee did specifically note petitioner's service to the Law School and his contributions to the field with respect to writing, professional service, and presentations.

Overall, the Committee was concerned with the "significant decline in teaching" on the record before them. On this record the Committee's conclusion, that petitioner's application for a five-year contract should be denied, was not arbitrary and capricious, irrational or in bad faith. Respondents have shown "substantial compliance" with their rules, procedures, and standards. It is not for this Court to substitute its judgment for that of professional educators in this matter. The relief sought by petitioner must be denied and the petition is hereby dismissed.

Settle judgment on notice.

Dated: April 12, 2010