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Marks v. Smith

September 15, 2009


Order, Supreme Court, New York County (Milton A. Tingling, J.), entered February 20, 2008, which denied the parties' respective motions for summary judgment, modified, on the law, to grant defendants' motion in its entirety, the complaint dismissed, and otherwise affirmed, with costs. The Clerk is directed to enter judgment in favor of defendants accordingly.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Friedman, J.P., Nardelli, Catterson, DeGrasse, JJ.


In 1996, plaintiff and defendant Fordham University entered into a written agreement, entitled "Faculty Contract," under which Fordham appointed plaintiff to a two-year, tenure-track associate professorship in the Faculty of Business, subject, however, to the following proviso: "Faculty member will be serving as Associate Dean for Academic Affairs for the Faculty of Business. The term of appointment of this contract will be suspended until full-time faculty status begins. Salary will be paid as an administrator and not on a faculty line until full-time faculty status begins." The contract (which does not contain a merger clause) fails to specify any rate of salary for either the administrative position or the faculty position. Neither does the contract specify the time of plaintiff's transfer from administrative to faculty status, or the events that would trigger that transfer.

From 1996 until early 2002, plaintiff served as an associate dean; in 2002, her an annual salary was $121,000. In February of 2002, plaintiff announced that she was resigning her deanship, effective March 8, 2002, and would thereupon assume her duties as an associate professor. Defendant Smith, who was Dean of Fordham's Graduate School of Business Administration at all relevant times, testified that, in a conversation that took place on or about February 6, 2002, she told plaintiff that all teaching assignments for the already-commenced spring term had been filled, and therefore requested that plaintiff delay resigning her administrative position until the beginning of the Fall 2002 term or, alternatively, the beginning of the Summer 2002 term; plaintiff, however, refused to do so. Nonetheless, Fordham accepted plaintiff's resignation of her deanship and advised plaintiff that her faculty appointment would go into effect at the beginning of the Fall 2002 term, whereupon she would receive an annual salary of $70,000. Fordham further stated that plaintiff's benefits would continue without interruption, and offered her the opportunity to teach two summer courses, for which she would receive two ninths of her faculty salary. As stated in her affidavit, plaintiff refused to teach any summer courses.

When plaintiff's resignation of her administrative position became effective in March 2002, Fordham stopped paying her salary but continued her benefits, as it had promised. Plaintiff advised Fordham that she considered the university to have breached her contract both by ceasing to pay her $121,000 administrative salary in March 2002 and by stating its intention to reduce her salary to $70,000 once she began teaching in the fall. On the basis of this position, plaintiff told Fordham in August 2002 that she was refusing to accept any teaching assignment for the Fall 2002 term. By letter dated September 3, 2002, Fordham advised plaintiff that it was terminating her employment on the ground that she had breached her contract by refusing to accept a teaching assignment for the Fall 2002 term. Plaintiff subsequently commenced this action against Fordham and two of its senior administrators for monetary damages and declaratory relief. On appeals by both sides from Supreme Court's denial of their respective motions for summary judgment, we modify to grant defendants summary judgment dismissing the complaint in its entirety.

Plaintiff's first cause of action seeks damages for Fordham's alleged breach of her contract "by purporting to reduce her annual salary when she relinquished her deanship position." Plaintiff's contract does not specify a rate of compensation or a method for determining compensation, nor does the contract prohibit Fordham from reducing her salary upon her transfer from administration to faculty. Accordingly, absent extrinsic evidence of a greater obligation, the contract is enforceable only to the extent it is construed to require that plaintiff's compensation be set at a rate that is reasonable in comparison with the range of compensation Fordham customarily paid to holders of comparable faculty positions during the same period (see Kenneth D. Laub & Co. v Bear Stearns Cos., 262 AD2d 36 [1999]). The record establishes, as a matter of law, that Fordham satisfied this obligation. Defendant Hollwitz, Fordham's Vice President of Academic Affairs, testified, without contradiction, that, as a matter of general practice, a Fordham administrator who transferred to the faculty would receive a lower salary as a faculty member than he or she had received as an administrator. Hollwitz further testified that plaintiff's faculty salary was set at $70,000 because that amount "was somewhere in the middle of the distribution of Associate Professor of Management Systems salaries."

Plaintiff did not come forward with any extrinsic evidence to support her contention that Fordham, in setting her faculty salary at $70,000, breached any contractual obligation the parties had left unstated in their written agreement. While plaintiff submitted an affidavit asserting in conclusory fashion that her own "research" showed that the "average salary" for an associate professor of business at Fordham was "nearly $75,000" during the 2001-2002 academic year, this factual claim, even if accurate, falls far short of providing a basis on which a factfinder could reasonably determine that the $70,000 annual rate at which Fordham set plaintiff's faculty salary was not reasonably consistent with the university's customary practice in compensating holders of comparable positions at the time. Since this was all that plaintiff's contract required of Fordham with regard to setting her faculty compensation, and the record establishes that this obligation was satisfied, Fordham is entitled to summary judgment dismissing the first cause of action.

Plaintiff's second cause of action seeks damages for Fordham's alleged breach of contract by "stopp[ing] pay[ment] [of] her annual salary beginning on March 9, 2002," the day after her last day as a dean. Plaintiff fails, however, to identify any basis in the record for a determination that Fordham was required to continue paying her an administrative salary after she voluntarily resigned her administrative position. Further, nothing in the parties' contract obligated Fordham to start paying plaintiff her faculty salary (which, as discussed above, was legitimately set at a lower rate than her administrative salary) immediately upon her relinquishment of her administrative position where, as here, plaintiff unilaterally chose to resign her deanship in the middle of the spring term, when no teaching assignments were available. In this regard, it is significant that the University Statutes, which are incorporated by reference into plaintiff's contract, establish that the primary responsibility of a Fordham faculty member is to teach. While plaintiff claims that "research and committee work," not just teaching, are part of a faculty member's job, she does not identify any particular research project or committee work that she intended to initiate or continue as a full-time faculty member upon resigning her deanship. In essence, plaintiff would have us construe the contract to require Fordham to pay her for doing nothing; this is an interpretation we decline to adopt. Considering the difficult situation that plaintiff herself created, Fordham acted reasonably in advising plaintiff, upon her resignation of her deanship, that it intended to commence her full-time faculty status at the opening of the following fall term, and accommodating her in the interim by continuing her benefits without interruption and by offering to assign her two summer courses to teach, for which she would have been paid two ninths of her annual faculty salary. Since plaintiff identifies no basis, either in the contract or in extrinsic evidence, for imposing a greater obligation on Fordham, the latter is entitled to summary judgment dismissing the second cause of action.

Plaintiff's third cause of action seeks damages for Fordham's alleged breach of contract "by purporting to terminate her employment in September 2002." The record, however, establishes as a matter of law that Fordham was entitled to terminate its contract with plaintiff in response to her repudiation of that contract by refusing to accept any teaching assignment for the Fall 2002 term, which refusal lacked any justification, as discussed above (see Computer Possibilities Unlimited v Mobil Oil Corp., 301 AD2d 70, 77 [2002] [one party's repudiation of contract discharges the other party's obligations thereunder]). To the extent the third cause of action seeks damages based on Fordham's termination of plaintiff's contract without following the internal procedures for termination of a faculty member specified in the University Statutes, the claim still must fail as a matter of law because the contract provided that "[t]he term of [plaintiff's] appointment [to the faculty]... will be suspended until full-time faculty status begins" (emphasis added). The record establishes that plaintiff never attained full-time faculty status --- indeed, in August 2002, she specifically rejected the opportunity to assume such status --- and she therefore was not entitled to have her termination considered through the procedures specified in the University Statutes (cf. B. Man Yoon v Fordham Univ., 216 AD2d 184, 185 [1995] [reinstating tenured faculty member's cause of action against university "seeking payment of (his) salary... until and unless he is dismissed in accordance with... the university's Statutes," although reinstatement was precluded by expiration of the limitation period for a CPLR article 78 proceeding]). In any event, plaintiff has no right to hold Fordham to adherence to the disciplinary protocols of its University Statutes when the record establishes that plaintiff effectively abandoned her faculty appointment, thereby becoming the first party to breach her contract, by flatly refusing to accept any teaching assignment for the Fall 2002 term.

The fifth cause of action seeks a declaration that "(a) University officials failed to terminate [plaintiff's] employment according to the procedures dictated in... the University Statutes; and (b) she is now and will remain a tenure-track Associate Professor in the Business School unless and until the University invokes and follows those procedures." Relief of this nature cannot be obtained through a plenary action, and must be sought by way of a proceeding pursuant to CPLR article 78 (see Maas v Cornell Univ., 94 NY2d 87, 92 [1999]). Plaintiff did not commence this action until October 2004, more than two years after Fordham terminated her employment in September 2002 and long after the expiration of the four-month limitation period applicable to an Article 78 proceeding (CPLR 217). Accordingly, Fordham is entitled to summary judgment dismissing the fifth cause of action (see Risley v Rubin, 272 AD2d 198 [2000], lv denied 96 NY2d 701 [2001]; cf. B. Man Yoon v Fordham Univ., supra). In any event, as previously discussed in connection with the third cause of action, the record establishes that plaintiff (by her own free choice) never attained the full-time faculty status required to trigger the term of her faculty appointment, and she therefore was not entitled to the benefit of the procedures provided in the University Statutes.

In her fourth cause of action, plaintiff seeks damages based on the two individual defendants' alleged tortious interference with her contractual relations with Fordham. To begin, for the reasons discussed above, the record establishes that Fordham did not breach plaintiff's contract. Since the breach of a contract is an essential element of a tortious interference claim (see Lama Holding Co. v Smith Barney, 88 NY2d 413, 424 [1996]), plaintiff cannot prevail on this cause of action as a matter of law. Even if there were evidence that Fordham had breached the contract, summary judgment dismissing the cause of action would still be appropriate. Plaintiff fails to identify any evidence in the record tending to show that defendants Smith and Hollwitz (who were, at the relevant times, the dean of Fordham's Graduate School of Business Administration and Fordham's Vice President of Academic Affairs, respectively) acted outside the scope of their employment and committed independent torts or predatory acts directed at her (see Murtha v Yonkers Child Care Assn., 45 NY2d 913, 915 [1978]). Smith and Hollwitz were plaintiff's superiors, and, the dispute whether proper procedures were followed notwithstanding, there is no evidence that they were not acting on behalf of defendant university and within the scope of their authority (see Nu-Life Constr. Corp. v Board of Educ. of City of N.Y., 204 AD2d 106, 107 [1994], lv dismissed 84 NY2d 850 [1994]) or that they were motivated by self-interest (see Kartiganer Assoc. v Town of New Windsor, 108 AD2d 898, 899 [1985], appeal dismissed 65 NY2d 925 [1985]). It does not avail to save the claim that plaintiff alleges that Smith and Hollwitz, in acting adversely to plaintiff on Fordham's behalf, were motivated by an alleged desire to retaliate against her for supporting the position of Fordham's clerical employees in a collective bargaining dispute with the university.

While our dissenting colleague takes the position that the record establishes some breach of contract by Fordham (and would even grant plaintiff summary judgment on this point), he fails to identify any particular provision of the agreement with plaintiff --- or even any alleged oral promise to her --- that was breached by Fordham. Again, in early February 2002, before plaintiff resigned her administrative position (at her own instance), she was told by defendant Smith (according to Smith's uncontradicted deposition testimony) that no faculty position was available at that time, since there were no unfilled teaching assignments. Plaintiff nonetheless insisted on resigning her deanship in the middle of the spring term, rejecting Smith's ...

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