Richter v Yeshiva Univ.

[*1] Richter v Yeshiva Univ. 2017 NY Slip Op 50691(U) Decided on May 10, 2017 Supreme Court, New York County Jaffe, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on May 10, 2017
Supreme Court, New York County

Michael Richter and William Hawkins, Petitioners, For an Order and Judgment Under Article 78 of the Civil Practice Law and Rules,

against

Yeshiva University, Richard M. Joel, as President of Yeshiva University, and Selma Botman, as Provost of Yeshiva University, Respondents.



100620/16



For petitioners:

Joshua Parkhurst, Esq.

Law Offices of Joshua Parkhurst

11 Broadway, Suite 615

New York, NY 10004

201-577-2644

For respondents:

Dov Kesselman, Esq.

Cameron Smith, Esq.

Anne Dana, Esq.

Seyfarth Shaw LLP

620 Eighth Ave.

New York, NY 10018

212-218-5500
Barbara Jaffe, J.

By notice of petition, petitioners bring this CPLR article 78 proceeding challenging respondents' December 21, 2015, determination denying renewal of their employment contracts with Yeshiva University. Respondents oppose.

I. BACKGROUND

By letters dated November 21, 2011, and March 28, 2012, respondents individually offered petitioners three-year, tenure-track positions as assistant professors of economics commencing on September 1, 2012. (Verified Petition [Pet.], Exhs. B, A). The appointments are subject to university policies and procedures, including those contained in the faculty handbook. (Id.).

The pertinent sections of guidelines, dated January 31, 2015, and the handbook, dated January 1, 2013 (Pet., Exhs. C, D), are as follow:

Guidelines, "Tenure, Promotion, and Mentorship for Undergraduate Faculty"

section one: ". . . A faculty member's responsibilities may be subdivided into the categories of A) research/scholarship, B) teaching, and C) service to the department, school, discipline and university."section 1.4: "there are four levels of assessment: by departmental colleagues, under the direction of the department chair (see section 1.4a); by members of the executive committee of their division (see section 1.4b); and then by the deans of their units, and by the provost (see section 1.4d)."section 1.4(d): "The dean reviews the candidate's dossier which now includes . . . the departmental and divisional recommendations . . . The dean then submits his/her letter of recommendation to the provost."

Handbook, section IV "Faculty Appointments"

B. "Full and Part-Time Appointments"

(v) "Tenure track faculty members shall be advised in writing at the time of initial appointment of the substantive standards and procedures generally employed in decisions affecting renewal and tenure."(vii) "Tenure track appointments will normally be for two or three years, subject to renewal. Written notice that a tenure track appointment of two years or more is not to be renewed shall be provided to the faculty member one year in advance of the non-renewal of appointment. If notice of non-renewal is given in the final year of a multi-year contract, the faculty member shall be offered an additional one-year terminal contract. Faculty members with multi-year tenure track appointments shall be subject to annual review."

H. "Faculty Review"

(ii) "Adverse Reappointment . . . Decisions"

(b) "If the involved faculty member believes that the decision [not to renew an appointment] was based upon inadequate consideration . . . the faculty member may request within 30 days that the Faculty Review Committee be convened."(e) "If the Faculty Review Committee determines that the challenged decision was based upon inadequate consideration. . . the President shall determine the appropriate remedial action."

(Id., Exhs. D, C).

Each petitioner accepted the offer. (Id., ¶ 12).

Petitioners applied for renewal and, by letters dated March 25, 2015, the university's provost, respondent Botman, informed them that she had decided to deny renewal of their contracts due to "financial considerations" (id., ¶¶ 14, 22, Exhs. E, F) including, as she stated in [*2]letters to them dated April 14, 2015, the discontinuance of "partial gift income" (id., ¶ 24, Exhs. G, H). Petitioners appealed Botman's decision to the Faculty Review Committee (Committee) (id., Exh. K), which determined that the decision was based on inadequate consideration and that the university's president, respondent Joel, should, pursuant to the handbook, reappoint petitioners to their tenure-track positions or reappoint them pending the creation of a "clear and appropriate" review process and a reconsideration of their applications (id., ¶¶ 31-36, Exh. L). By written decision dated December 21, 2015, Joel stated, inter alia, that (1) the review process was conducted pursuant to the handbook, (2) Botman's decision is well-reasoned, and (3) the Committee's decision is based on "an erroneous application" of the handbook, and thus, no remedial action is necessary. (Id., ¶ 30, Exh. M).

Petitioners assert that respondents (1) violated the handbook and guidelines,

(2) acted arbitrarily and capriciously, and (3) breached their employment contracts. (Id.,

¶¶ 44-63).

II. CONTENTIONS

In alleging that respondents deviated from the handbook and guidelines by reaching a decision before the deans could issue their recommendations (id., ¶ 20, 51; Memorandum of Law in Support of Verified Petition [Mem. in Support, at 8-9]), and in reliance on the Committee's report (Pet., Exh. L at 3-4), and the affidavits of two faculty members (Affidavit of Paula Geyh, Associate Professor of English and Vice Speaker of the Faculty Review Council for the 2014 to 2015 academic year, dated Apr. 19, 2016, at ¶ 7; Affidavit of James Kahn, Professor and Chair of the Economics Department, dated Apr. 18, 2016, at ¶ 13]), petitioners argue that respondents did not adequately consult the faculty before making their determination. They also contend that section IV(G)(vii) applies to both tenured and tenure-track professors (Mem. in Support, at 6-7), and that, although respondents cite financial considerations as the bases for their decision, they fail to demonstrate the existence of a financial exigency (Pet., ¶ 50).

Petitioners also maintain that Joel's determination that no remedial action is necessary violates handbook section IV(H)(ii)(e) and is arbitrary and capricious insofar as it is based on irrational budgeting methods. (Id., ¶¶ 49, 53). They contend that the decision not to renew their contracts is based on criteria not set forth in the handbook or guidelines, thereby breaching their employment contracts, and ask that after determining their petition, I convert the proceeding to a plenary action for breach of contract. (Id., ¶¶ 62, 63[e]).

Respondents argue that they complied with the handbook and guidelines as Botman consulted with the deans (Respondents' Memorandum of Law in Opposition to Petitioners' Article 78 Petition [Mem. in Opposition, at 20-21]; Affidavit of Barry Eichler, Ph.D., Dean of Yeshiva College from 2009 to 2015, dated June 1, 2016, at ¶ 4; Affidavit of Karen Bacon, Ph.D., Dean of the Stern College for Women from 1977 to 2015, dated June 2, 2016, at ¶ 4; Affidavit of Selma Botman, Provost of Yeshiva University, dated June 2, 2016 [Botman Affid., at ¶ 10]), and although she was not required to do so, she consulted the faculty before issuing her determination (id., at ¶¶ 11-12). They deny having declared a financial exigency (Mem. in Opposition, at 18; Botman Affid., at ¶¶ 5-6), or having any obligation to do so, as section IV(G)(vii) applies only to tenured professors (Mem. in Opposition, at 18-19; Affidavit of Richard M. Joel, dated June 2, 2016, at ¶ 5). Instead, respondents argue, sections IV(B)(vii) and IV(B)(viii) govern the renewal of tenure-track contracts, neither of which limits the criteria on which they may base their [*3]decision. (Mem. in Opposition, at 21-22). Moreover, respondents construe the requirement set forth in section IV(H)(ii)(e) as permitting the president to determine "what, and whether, any remedial action is necessary," and that, as the Committee's reasoning is flawed, Joel need not take remedial action. (Mem. in Opposition, at 23-24; Affidavit of Morton Lowengrub, Ph.D., Provost of Yeshiva University from 1999 to 2014 and Professor of Mathematics, dated June 2, 2016).

In maintaining that petitioners' cause of action for breach of contract concerns an academic determination, respondents argue that it must be reviewed pursuant to CPLR article 78, and that as the breach of contract claim is duplicative of their article 78 petition, it fails for the same reasons the petition fails. (Mem. in Opposition, at 24, 25). They observe that handbook section IV(B)(v) requires that they inform tenure-track faculty about the procedures generally employed in contract renewal, and does not require that they specify the source of income funding a professor's salary. (Id., at 22).

As petitioners identify no counterclaims or new matters asserted in respondents' answer (Reply Memorandum of Law in Support of Verified Petition, dated July 15, 2016), and as respondents' answer is responsive to the allegations set forth in the petitionpetitioners are not entitled to submit a reply. (CPLR 7804[d], 7804[f]).

III. CPLR ARTICLE 78

As a matter of public policy, courts are reluctant to intervene in cases concerning a school's administrative policies or decisions, as such matters are best left to the judgment of professional educators. (Maas v Cornell Univ., 94 NY2d 87, 92 [1999]; Olsson v Bd. of Higher Ed., 49 NY2d 408, 413—14 [1980]; New York Inst. of Tech. v State Div. of Human Rights, 40 NY2d 316, 322 [1976]). Consequently, the only questions that may be raised in an article 78 proceeding, as pertinent here, are whether the determination "was made in violation of lawful procedure, was affected by an error of law or was arbitrary and capricious or an abuse of discretion . . ." (CPLR 7803[3]), as to which petitioner bears the burden of proof (Matter of Dempsey v New York City Dept. of Educ., 25 NY3d 291, 300 [2015]; Matter of Cashin v Cassano, 129 AD3d 953, 954 [2d Dept 2015], lv denied 26 NY3d 916 [2016]). In assessing whether an agency determination is arbitrary and capricious, the test is whether the determination "is without sound basis in reason and is generally taken without regard to the facts" (Matter of Pell v Bd. of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]), whereas, in assessing whether an agency violated its own rules, the question is whether the agency failed to comply substantially with those rules (Matter of Fruehwald v Hofstra Univ., 82 AD3d 1233, 1234 [2d Dept 2011]; Gurstein v Bard Coll., Graduate Ctr. for Studies in the Decorative Arts, 280 AD2d 264 [1st Dept 2001]).

The question of whether a school has followed its own rules does not involve any highly specialized, academic judgment, and is determined by the court. (O'Neill v New York Univ., 97 AD3d 199, 213 [1st Dept 2012]). Here, the rule in question, handbook section IV(H)(ii)(e), requires that upon the Committee's finding that a provost's decision is, inter alia, "based upon inadequate consideration," the president is to "determine the appropriate remedial action." The rule presumes the validity of the Committee's finding of a need for remedial action, and does not authorize the president to determine anything other than the appropriate remedial action. [*4]Consequently, Joel was not authorized to determine that there was no need for remedial action, and his doing so constitutes a violation of section IV(H)(ii)(e).

Joel's determination also constitutes a violation of section one of the guidelines, as financial considerations are not among the criteria for third-year reappointment of tenure-track faculty listed in that section. (See Matter of Bennett v Wells Coll., 219 AD2d 352, 356 [4th Dept 1996] [dean's decision not based on criteria enumerated in faculty manual]). Consequently, I need not address petitioners' other argument concerning this aspect of respondents' determination. In any event, tenure does not encompass "tenure-track" (see Ferrari v Iona Coll., 95 AD3d 576, 577 [1st Dept 2012], lv denied 20 NY3d 859 [2013] ["plain meaning" of "with tenure," does not encompass tenure-track]), and petitioners offer no authority to the contrary. Thus, handbook section IV(G)(vii) does not apply.

Although respondents offer no evidence that the deans issued a letter of recommendation to Botman as required by sections 1.4 and 1.4d of the guidelines, they offer evidence that the deans discussed their opinions with Botman, thereby substantially complying with the guidelines. (See Gurstein, 280 AD2d at 264 [1st Dept 2001] [record supported finding that school substantially complied with pre-tenure review guidelines]; Matter of Fruehwald, 82 AD3d at 1234 [school substantially complied despite failure to conduct exact number of observations required by rules]).

IV. BREACH OF CONTRACT

Pursuant to CPLR 103(c), a claim that should have been brought in an action instead of a proceeding may not be dismissed. Rather, "the court shall make whatever order is required for its proper prosecution." Thus, if appropriate in the interests of justice, the court may "convert a motion into a special proceeding, or vice-versa, upon such terms as may be just, including the payment of fees and costs." (O'Neill, 97 AD3d at 201).

Ordinarily, a school's regulations and procedures do not, alone, create a contractual relationship between the school and its professors. (Maas, 94 NY2d at 90). Nonetheless, a petitioner may set forth a valid cause of action for breach of contract based on an alleged breach of a school's regulations or procedures if he or she demonstrates that (1) the school's discretion in reviewing tenure applications is expressly limited by the school rules (Roufaiel v Ithaca Coll., 241 AD2d 865, 867 [3d Dept 1997]), (2) the rules are incorporated in their employment contracts (id.), and (3) he or she detrimentally relied on the rules in accepting the job (Maas, 94 NY2d at 93).

Here, although petitioners demonstrate that respondents' discretion in renewing the contracts of tenure-track faculty is expressly limited by the school's rules, and that the rules are incorporated in their employment contracts, having accepted their jobs years before the effective date of the guidelines, petitioners do not demonstrate that they relied on the guidelines in accepting their jobs. (Maas, 94 NY2d at 93 [employer must have made employee aware of its express written policy and employee must have relied on it in accepting employment]). In any event, as the handbook does not expressly limit third-year review of tenure-track faculty to specific criteria, deviation from it does not constitute a breach. (See Roufaiel, 241 AD2d at 867 [no breach of contract where school's discretion not expressly limited]). Consequently, there is an insufficient basis for converting this special proceeding to a plenary action.

V. CONCLUSION

For all of the foregoing reasons, petitioners have sustained their burden, pursuant to article 78, of demonstrating that the challenged determination was reached in violation of respondents' policies and procedures. Accordingly, it is hereby

ORDERED and ADJUDGED, that the petition is granted to the extent that the challenged determination of respondent Joel is hereby annulled and the matter is remanded to respondents to conduct a de novo review and render a determination consistent with this decision, and denied to the extent that it seeks reappointment, conversion of the proceeding to a plenary action, restitution, damages or attorney fees.

DATED: May 10, 2017

New York, New York

Barbara Jaffe, JSC