Matter of Monaco v New York Univ.

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[*1] Matter of Monaco v New York Univ. 2015 NY Slip Op 51025(U) Decided on July 14, 2015 Supreme Court, New York County Hunter Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 14, 2015
Supreme Court, New York County

In the Matter of the Application of Dr. Marie Monaco and DR. HERBERT SAMUELS, Petitioners, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules

against

New York University, and NEW YORK UNIVERSITY SCHOOL OF MEDICINE, Respondents.



100738/2014



Petitioner:

Gladstein, Reif & Meginnis, LLP

Katherine Hansen, Esq.

817 Broadway, 6th Floor

New York, NY 10003

(212)228-7727

Respondents:

Edward Wildman Palmer, LLP

David R. Marshall, Esq.

750 Lexington Avenue

New York, NY 10022

(212) 308-4411
Alexander W. Hunter Jr., J.

The hybrid application by Dr. Marie Monaco and Dr. Herbert Samuels (collectively, the "petitioners") for an order pursuant to C.P.L.R. Article 78: (1) issuing a Writ of Mandamus ordering the respondents to vacate, set aside and nullify the New York University School of Medicine's Policy on Performance Expectation for Research Faculty (the "Policy"); and (2) awarding any and all damages, including lost wages and benefits, is denied. The cross-motion pursuant to C.P.L.R. 7804(f) and 3211 (a) (1), (5) and (7) to dismiss the verified petition and claim for damages, is granted.



In March of 2008, the New York University School of Medicine ("SOM") instituted the Policy which in part required the SOM faculty to generate external funding sufficient to cover 60% of the portion of their salary allocated to research. On February 9, 2009, following feedback from SOM faculty, the Policy was modified and the SOM faculty were informed that: (1) there would be no salary reductions in 2009 However, faculty would be advised whether they had met the performance expectation as of September 2008; (2) salary reductions in any one year would not exceed 20% of the portion of the faculty member's salary allocated for research; (3) faculty members who did not meet performance expectation would not receive salary increases in 2009; (4) salary reductions would commence in 2010 based on metrics achieved as of December 2009; and (5) the Faculty Handbook provides a grievance process for those who wish to contest a salary reduction decision. In addition to the performance expectations, in September 2012, the Provost approved the following minimum salary for full-time SOM faculty as follows: $85,000.00 for full Professors, $75,000.00 for Associate Professors and $65,000.00, for Assistant Professors.

Dr. Monaco has been Associate Professor with tenure at the SOM's Department of Physiology and Biophysics since 1987. Each year, since the spring of 2009, Dr. Monaco has received a Research Faculty Annual Review Letter ("Annual Letter"), which provides a summary of her annual review and includes a review of her participation in research, taking into account the performance metrics as described in the Policy. In March 2010, Dr. Monaco was notified that she had failed to reach the requisite extramural funding ("REF") to cover her salary and as a result she was not receiving a merit increase. In March 2014, Dr. Monaco again failed to meet the REF and thus her salary of $167,646.00 was to be reduced by $6,035.00.

Dr. Samuels has been a full Professor the SOM's Department of Medicine since 1977. In 2001, Dr. Samuels was awarded the Kimmelman Chair, an endowed chair that he still holds today. On March 18, 2014, Dr. Samuels was notified that his salary was being reduced pursuant to the Policy. On April 4, 2014, the letter was modified and as a result his $287,652.00 salary was to be reduced by $11,286.00.



"C.P.L.R. 217 (1) provides that an article 78 proceeding must be commenced within four months after the determination to be reviewed becomes final and binding upon the petitioner.'" Vadell v. City of New York Health and Hospitals Corp., 233 AD2d 224, 225 (1st Dept. 1996). "For a determination to be final upon the petitioner,' it must be clear that the petitioner seeking review has been aggrieved by it." Raffaele v. Town of Orangetown, 224 AD2d 430, 431 (2nd Dept. 1996). "To determine if agency action is final...consideration must be given to the completeness of the administrative action and a pragmatic evaluation [must be made] of whether the decision maker has arrived at a definitive position on the issue that inflicts an actual, concrete injury." LaSonde v. Seabrook, 89 AD3d 132, 139 (1st Dept. 2011). A determination becomes "final and binding" when the aggrieved party receives notice of the determination. 90-92 Wadsworth Ave. Tenants Ass'n v. City of New York Dept. of Hous. Preserv. and Dev., 227 AD2d 331 (1st Dept. 1996), as amended (Mar. 20, 1997). The burden is on the respondent to establish that it provided notice, and any ambiguity in the respondent's oral or written communications must be resolved in favor of the petitioner. Vadell, 233 AD2d 224, 225 (1st Dept. 1996).

The Policy at issue in this case contains three components: (1) performance expectations, including a standard for teaching and obtaining external funds to cover the portion of a faculty member's salary allocated to research; (2) a base salary below which a full-time faculty member's salary will not be reduced; and (3) a formula for salary reduction for those who fail to meet the performance expectations. Although promulgated in 2008, it is clear from the record that the Policy became final and binding upon Dr. Monaco on March 9, 2010, when she was notified that she would not receive a merit increase. To the contrary, due to his administrative [*2]responsibilities as Chair of Pharmacology, Dr. Samuels did not become subject to the Policy until 2012, when he declined to be the Vice Chairman of the newly formed Department of Biochemistry and Molecular Pharmacology. At that time, he was notified that 100% of his salary would be allocated to research, and thus he would be required to meet the REF. In March 2014, Dr. Samuels was informed that he did not meet his REF and as a result his salary would be reduced. On April 4, 2014, the March letter was amended and became final and binding on him at that time.

The petitioners' commenced this proceeding by filing a notice of petition on July 17, 2014. Thus, the petition is untimely as to Dr. Monaco.

It is well-settled that a petitioner must exhaust all available administrative remedies before obtaining judicial review of agency actions. See DiBlasio v. Novello, 28 AD3d 339, 341 (1st Dept. 2006). An exception exists to the exhaustion of remedies doctrine, whereby if the pursuit of the administrative remedy is futile or leads to irreparable harm, a petitioner need not exhaust his or her administrative remedies. Community Sch. Bd. Nine v. Crew, 224 AD2d 8, 13 (1st Dept. 1996); Matter of Barele, Inc. v. City of New York Human Resources Admin., 2010 NY Slip Op 30760(U) (Sup Ct, New York County 2010). Resort to administrative remedies is futile when the decision-maker has already arrived at a definite position contrary to that advanced by the petitioner. Lehigh Portland Cement Co. v. NY State Dept. of Envtl. Conservation, 87 NY2d 136, 141 (1995). Application of these exceptions lies in the court's discretion. See Community Sch. Bd. Nine, 224 AD2d at 13.

This court finds that the exception to the exhaustion of remedies doctrine does not apply to the instant proceeding. The Faculty Handbook provides an internal grievance mechanism for the faculty members to challenge compensation decisions, such as the one advanced by the petitioners. Here, Dr. Samuels has failed to avail himself of the procedure and thus the petition must be denied.

Notwithstanding the procedural defects in this proceeding, this court has reviewed the facts surrounding the request for judicial review and finds no basis for vacating the Policy. In Article 78 proceedings, courts are empowered to evaluate whether a university followed its own procedures and whether it acted in a manner that was arbitrary and capricious. Gray v. Canisius College of Buffalo, 76 AD2d 30, 33 (1st Dept. 1980); Bennett v. Wells College, 219 AD2d 352, 356 (2nd Dept. 1996). A writ mandamus may only be issued where there is a clear legal right to the relief sought. Brusco v. Braun, 84 NY2d 674 (1994). In the absence of a specific contractual provision, New York law does not provide a tenured professor with a cause of action against a medical school for alleged depravation of academic freedom by reducing the level of support or facilities. Tavoloni v Mount Sinai Med. Ctr., 26 F. Supp. 2d 678, 683 (S.D.NY [*3]1998) affd, 198 F.3d 235 (2nd Cir. 1999). "Routinely issued employee manuals, handbooks and policy statements should not lightly be converted into binding employment agreements It would subject employers who have developed written policies to liability for breach of employment contracts upon the mere allegation of reliance on a particular provision." Lobosco v. NY Tel. Company/NYNEX, 96 NY2d 312, 317 (2001). "When a complaint merely recites a litany of academic and administrative grievances couched in terms of a violation of a contractual right to tenure and is devoid of any reference to the contractual basis for the rights asserted, academic prerogatives should not be channeled into a cognizable contract action classification." Maas v. Cornell Univ., 94 NY2d 87, 93 (1999).

The Faculty Handbook and policy documents are insufficient to create a contractual obligation between the petitioners and the respondents. The petitioners argue that tenure, as defined in the handbook, guarantees both freedom of research and economic security and thus prohibits a diminution in salary. However, no writing was submitted to demonstrate that the respondents agreed that its faculty handbook and policy documents could or should have a contractually binding effect. Moreover, even if the handbook were contractually binding, the handbook itself is devoid of any provision which guarantees tenured faculty a particular level of support as a condition of their tenure, nor do the petitioners allege that such a writing exists. For that reason, the petition is dismissed pursuant to C.P.L.R. 3211 (a) (1) and (a) (7).

This court has considered the petitioners' remaining arguments and finds that they are without merit.



Accordingly, it is hereby

ADJUDGED that the hybrid application by the petitioners for an order pursuant to C.P.L.R. Article 78 annulling and vacating the Policy and awarding damages, is denied and the proceeding is dismissed without cost and disbursements. The respondents' cross-motion to dismiss is granted.

Dated: July 14, 2015

ENTER:

____________________________

J.S.C.