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Pemrick v. Stracher

June 28, 2007



By notice of motion dated June 12, 2006, defendants State University of New York ("SUNY")*fn1 and the Research Foundation of the State University of New York ("Research Foundation") move for summary judgment on the state law claims of conversion and replevin brought by plaintiff Suzanne Marie Pemrick, Ph.D., proceeding pro se.

For the foregoing reasons, this Court grants defendants' motion for summary judgment.


A. Factual Background

The underlying facts are set forth in this Court's earlier Memoranda and Orders dated January 13, 2005 and November 4, 2005. For purposes of the current motion, there is no dispute that plaintiff was employed by SUNY from 1978 to 1988, as an Assistant Professor (non-tenure track) in the Biochemistry Department. (See EEOC Compl. # 1).*fn2 With the support of the Research Foundation, Dr. Pemrick received research grants from the National Institute of Health ("NIH") and the Muscular Dystrophy Association ("MDA").

According to defendant Research Foundation, in 1978, the NIH awarded a grant to the Research Foundation on behalf of SUNY, listing Dr. Pemrick as the "Principal Investigator/Program Director/Awardee." (Defs.' 56.1 Stmnt.*fn3 ¶ 5). Under the NIH research grant, the Research Foundation was reimbursed by the federal government for allowable research and equipment costs through a letter of credit that was limited to the amount of the grant awarded. (Id. ¶ 7). As principal investigator, Dr. Pemrick placed an order to purchase the appropriate equipment and then submitted the purchase order to the Research Foundation, which dispersed the necessary funds from the grant account. (Id. at 6). In March of 1986, Dr. Pemrick learned that her grant would not continue to be funded by the NIH. (Defs.' 56.1 Stmnt. ¶ 12).

Upon learning that her grant had expired, plaintiff requested that SUNY continue to fund her salary and that of her assistant for a one-year period. (Defs.' 56.1 Stmnt. ¶ 13). In response, Dr. Richard Schwarz, Dean of SUNY Downstate, granted plaintiff's request and, using emergency funding, extended plaintiff's and her assistant's salaries pending renewal of the NIH grant. (Defs.' 56.1 Stmnt. ¶ 13). A second extension was granted, giving Dr. Pemrick an additional five months of salary, with the extension to expire March 31, 1987. (Id.) Thereafter, in the spring of 1987, plaintiff was informed that her appointment as an Assistant Professor of Biochemistry and Biophysics at SUNY had been terminated. (First Am. Compl.*fn4 at 14). Nevertheless, when Dr. Pemrick's renewed grant application was denied, SUNY supported another extension, first until the end of the academic year, June 30, 1987, and then a no-cost time extension was granted through September 9, 1987. (Id. ¶ 14 (citing Aff.*fn5 ¶ 16)).

On September 11, 1987, plaintiff and SUNY entered into an agreement ("Agreement") that provided for SUNY to offer plaintiff research salary support at the level of Assistant Professor retroactive to March 31, 1987 through August 31, 1988. (See id. ¶ 15 (citing Aff. ¶ 17); see also Aff., Ex. 15). The Agreement provided that if the NIH grant was activated during this period, SUNY would accept the grant through March 31, 1989. (See id. ¶ 15 (citing Aff. ¶ 17); see also Aff., Ex. 15). Under the Agreement, plaintiff's resignation became effective as of August 31, 1988, but until then plaintiff was to have unlimited access to her laboratory. (Id. ¶ 15). By letter dated August 31, 1988, SUNY Downstate's Associate Vice President for Academic Administration, Mr. John F. O'Connor, informed Dr. Pemrick that the room where the equipment was to be stored would be secured and asked her to notify SUNY when she obtained another position. (Aff. ¶ 18, Ex. 16).

Plaintiff alleges that on or about October 1, 1988, while her NIH project was still actively under competitive review, and while officials at SUNY waited to learn whether plaintiff would obtain a new position where she could use the equipment, SUNY and the Research Foundation dismantled the laboratory; all items were removed, and the equipment was inventoried, packed and placed in temporary storage at the Research Foundation pursuant to HHS guidelines. (See id. ¶ 16; Third Am. Compl.*fn6 ¶¶ 29, 31). Despite repeated requests that SUNY and the Research Foundation provide her with an accurate inventory of the equipment, her requests were refused. (Third Am. Compl. ¶ 30). Plaintiff claims that, without her permission, defendants abused, damaged, lost, misplaced, misappropriated and/or deliberately re-distributed the laboratory equipment within 30 days of storing the equipment. (Id. ¶¶ 31, 33).

On November 15, 1989, Dr. Schwarz advised plaintiff by letter that it had been "over a year" since SUNY had agreed to store the equipment and he reminded her that under NIH policy, title to the equipment must be transferred after 120 days either to the grantee institution, to the NIH, or to a new institution. (Id. ¶ 20, Ex. 18). He further noted that because more than 120 days had passed, "full title to the equipment now rests with the Research Foundation." (Id.) Nevertheless, Dr. Schwarz gave plaintiff until January 31, 1990 to identify a new institution to which the equipment could be transferred. (Id.) Otherwise, he informed her that the equipment would be used by other researchers at SUNY Downstate. (Id.) He also indicated that the Research Foundation would, in the meantime, continue to maintain the equipment in storage until plaintiff provided notice as to the new institution she would be joining so that the equipment could be shipped there.*fn7 (Id.)

On January 9, 1990, plaintiff met with Dr. Schwarz to discuss her efforts to get funding for a new position. (Id. ¶ 21, Ex. 19). When Dr. Schwarz was advised by a grant officer that Dr. Pemrick's renewal grant proposal had not been funded, plaintiff was informed by letter dated April 16, 1990 that the equipment would be distributed effective May 1, 1990, once plaintiff removed her personal items. (Id.) According to defendants, that date was later pushed back to June 8, 1990, in the event that she was able to secure an appointment at an educational institution by that time. (Id. ¶ 22, Ex. 20). Although plaintiff notified the Research Foundation on several occasions that she was negotiating for a position at another institution and the Foundation held the equipment for more than two years, Dr. Pemrick never requested transfer of the equipment. (See Defs.' 56.1 Stmnt. ¶¶ 17-18). Indeed, the Research Foundation notes that plaintiff never made a request for the return of the equipment as required by New York law, nor does she want the equipment returned to her.*fn8 (Defs.' 56.1 Stmnt. (citing Pemrick Dep. at 45-46, 55-56, 68, 71, 74, 75, 87, 88, 89, 90, 91)).

Plaintiff seeks damages from the Research Foundation and SUNY, claiming that her grant renewal application, her research project, and her ability to relocate to another scientific institution were damaged by the defendants' improper handling of the equipment. (See Pl.'s Reply Mem.*fn9 at 6-7; Pl.'s Mem. at 17).*fn10

B. Procedural Background

On or about July 1, 1990, plaintiff, proceeding pro se, commenced this action in the Northern District of New York against defendants Alfred Stracher, who was Chair of the Department of Biochemistry at SUNY, and Richard Schwarz, who was Dean of SUNY Downstate, alleging that she was denied a tenure track position as an Assistant Professor due to age discrimination.*fn11 Although plaintiff's pro se narrative in the initial Complaint detailed the acts of discrimination for which each defendant was allegedly responsible, the Complaint made no reference to the laboratory equipment, nor did it specify either of the defendant's roles in the alleged loss and destruction of that equipment.

On or about March 8, 1991, plaintiff filed her First Amended Complaint, which named SUNY and SUNY Brooklyn as additional defendants, and included an additional charge of sex discrimination. No references to the laboratory equipment were added to the Complaint at that time.

The case was transferred to the Eastern District of New York on or about March 2, 1992, and defendants moved for summary judgment following the completion of discovery. That motion was granted to the extent that plaintiff's claims against the individual defendants were dismissed with prejudice, but Dr. Pemrick was permitted to pursue her claims of discrimination against her employer. See Pemrick v. Stracher, 67 F. Supp. 2d 149, 169-70 (E.D.N.Y. 1999).

Thereafter, Dr. Pemrick obtained counsel in December 1999 and filed a Second Amended Complaint on or about March 13, 2000 ("Second Am. Compl."), in which she added new state law claims for conversion, replevin, and age discrimination, pursuant to New York Executive Law § 295. (Second Am. Compl. ¶¶ 32-36). On or about April 7, 2000, plaintiff filed a Third Amended Complaint ("Third Am. Compl."), adding the Research Foundation as a defendant.*fn12

(Third Am. Compl. ¶¶ 32--38). In this Third Amended Complaint, plaintiff asserted that SUNY and the Research Foundation were responsible for the illegal conversion of her laboratory equipment. (Id. ¶¶ 32-33). There were no allegations in the Third Amended Complaint naming the individual defendants in the conversion claims, or alleging that either Dr. Schwarz or Dr. Stracher were individually responsible for the loss of the equipment.

Beginning on April 24, 2000, a seven-day bench trial was held before the Honorable Joanna Seybert. Since the Research Foundation was named as a defendant only in the claims for conversion and replevin (see Third Am. Comp. at 1), those claims were severed from the other claims and accordingly were not addressed during the trial before Judge Seybert. (See Jan. Order*fn13 at 6).

On September 24, 2002, Judge Seybert entered judgment in favor of defendant SUNY with respect to Dr. Pemrick's claims under Title VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000(e) et seq., and the New York State Human Rights Law. (See Sept. Mem. & Order;*fn14 see also Order of Nov. 20, 2002 (clarifying that the judgment entered only applied to certain of plaintiff's claims)). On March 7, 2003, the parties consented to have the case referred to the undersigned for the purpose of resolving plaintiff's remaining claims.

On July 30, 2003, Dr. Pemrick, proceeding pro se, submitted a proposed Fourth Amended Complaint, which contained federal claims under 45 C.F.R. § 80 (effectuating Title VI of the Civil Rights Act of 1964) and 45 C.F.R. § 74.34 (governing title to equipment). In her proposed Fourth Amended Complaint, Dr. Pemrick alleged that the defendants seized, misused, abused and lost certain laboratory equipment and materials, valued at $300,000.00, which Dr. Pemrick purchased with funds from research grants awarded to her by the NIH and MDA. (See Fourth Am. Compl. ¶¶ 24, 29, 31). On September 10, 2003, plaintiff sought to amend the complaint to add state law claims of conversion and replevin against John Allen, Peter French, Alfred Stracher, and Richard Schwarz, who were employed during the time in question by SUNY and/or the Research Foundation. Thereafter, on November 10, 2003, plaintiff submitted a Revised Fourth Amended Complaint, in which she voluntarily withdrew the claim under 45 C.F.R. § 80. (Compare Fourth Am. Compl. ¶¶ 46--47 with Revised Fourth Am. Compl. ¶¶ 46--47). On January 13, 2005, this Court issued an Order denying plaintiff's motion to amend to add claims under 45 C.F.R. § 74.34 on the grounds of futility. (See Jan. Order at 16). By Memorandum and Order dated November 4, 2005, this Court denied plaintiff's request to add claims against the individuals because of plaintiff's insufficient explanation for her delay in naming these individuals for many years, and the undue prejudice that the proposed defendants would suffer.*fn15 (See Nov. Order at 20-21).

Accordingly, plaintiff's Third Amended Complaint against SUNY and the Research Foundation for state law claims of conversion and replevin is all that remains of the above captioned case.


A. Supplemental ...

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