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Flomenbaum v. New York University

December 3, 2009

NEAL FLOMENBAUM, PLAINTIFF-APPELLANT,
v.
NEW YORK UNIVERSITY, DEFENDANT-RESPONDENT.



Plaintiff appeals from an order of the Supreme Court, New York County (Milton A. Tingling, J.), entered June 23, 2008, which granted defendant's motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for an order of preclusion based on spoliation of evidence.

The opinion of the court was delivered by: DeGRASSE, J.

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.

James M. McGuire, J.P., Rolando T. Acosta, Leland G. DeGrasse, Rosalyn H. Richter, Sheila Abdus-Salaam, JJ.

601812/06

On this appeal we must decide whether a university's offer of tuition-free enrollment in a two-year program rather than the four-year program applied for can be construed as a breach of an agreement with the offeree's parent. We answer the question in the negative based on the facts and legal principles that follow. The 2002 agreement resolved a tenure dispute between defendant and plaintiff, a former faculty member at the NYU School of Medicine. The agreement provides that plaintiff's children shall be entitled to tuition remission upon admission to New York University for undergraduate or graduate study. Their admission to New York University and their entitlement and advantages to tuition remission shall be on the same basis with the same courtesies as a then current, active, full-time employed, tenured member of the faculty of the School of Medicine or a retired, tenured member of the faculty of the School of Medicine, whichever is greater. The agreement, which contains a merger clause, makes no other provision with respect to tuition remission. Plaintiff's son, Adam, applied for admission to the NYU College of Arts and Sciences (CAS) for the September 2006 term. By letter dated March 2, 2006, the university informed Adam that it was unable to offer him admission to CAS. Instead, Adam was offered admission to NYU's General Studies Program (GSP), a two-year course of study in the liberal arts. As explained in the letter and an accompanying brochure, --all GSP courses fulfill liberal arts requirements toward the bachelor's degree at NYU's eight undergraduate schools and colleges; --after two years, GSP students are eligible to transfer as juniors to one of NYU's four-year programs, having earned 64 credits, half of the 128 credits needed for the NYU bachelor's degree; --GSP students can participate in all NYU student activities; and --only 10% of the students who were not offered admission to NYU's four-year bachelor's degree program were selected for GSP. In keeping with the agreement, enrollment in GSP would have qualified Adam for tuition remission.

This action is based upon the premise that the offer of admission to GSP instead of CAS violated the obligation to extend Adam the courtesies due a faculty child pursuant to the agreement. An understanding of what these courtesies entail is crucial to our analysis. Defendant's unrefuted answer to an interrogatory describes the courtesies afforded the children of active, full-time, tenured faculty members of the School of Medicine as follows: Generally, the Admissions Committee becomes aware that an applicant is the child of a faculty member because the applicant discloses the information about his parents' employment on the application form. The Admissions Committee makes a list of applicants who have designated the University as the employer of a parent. As to the individuals on that list, the Admissions Committee takes a second look at their admissions decisions to make sure that those decisions are fair. If any such student is not qualified for admission to the particular school to which he or she applied, the Admissions Committee may, because of his or her status as the child of a faculty member, give more consideration to admitting the student to the General Studies Program than would otherwise be the case. Plaintiff testified that he has no direct knowledge of any other relevant courtesies or considerations. Plaintiff also acknowledged that the agreement and the courtesies it incorporates did not guarantee a seat for Adam in the freshman class of CAS. In sum, plaintiff bargained for a fair decision on his son's application for admission to CAS, and added consideration as a candidate for GSP in the event that he was not qualified for admission to CAS. The next question is whether there is an issue of fact as to whether NYU's decision to deny Adam admission to CAS was a fair one. Here we examine the process by which Adam's application was evaluated.

Barbara F. Hall, NYU's Associate Provost for Enrollment Management, described the university's admissions process at her deposition. Ms. Hall testified that when an application is received, a file is assembled for review by the admissions team, and data taken from the application is entered in the university's Student Information System (SIS). The file would include the application, transcripts and recommendations. The applicant's relationship, if any, with an NYU employee would be entered in SIS. The file is reviewed by two members of the team responsible for admissions to the particular school or college to which the applicant has applied. The team members then confer and make their individual recommendations regarding the action to be taken on the application. The file would be read by one of two directors in the event of a disagreement between the team members. Although the file is reviewed holistically, the applicant's grade point average is very carefully scrutinized because it is considered the best indicator of success at NYU. An applicant's relationship with an NYU employee would be taken into account after the file has been read but before an official decision is made*fn1. In this regard, an evaluation is made as to whether the recommended action on the application appears to be equitable. Relationship to a faculty or staff member is considered a positive if an applicant is considered "on the bubble," i.e., distinguished by some but not all of the characteristics deemed necessary for admission.

Approximately three years after the agreement was executed, Adam applied for admission to CAS for the term beginning in September 2006. Adam declined to check a box on the application form that would have indicated his parent or legal guardian was an NYU employee. Accordingly, on its face, Adam's application gave no indication of his status under the tuition remission agreement. Approximately one month before the application was submitted, plaintiff forwarded Adam's resume to Dr. Richard Levin, the Vice Dean of NYU's Medical School, who had negotiated the tuition remission agreement on behalf of the university. The information regarding the tuition remission agreement was passed on to Dr. Robert Berne, NYU's Vice President for Health. Dr. Berne was supposed to but neglected to initially apprise the Admissions Committee of Adam's entitlement to faculty child status. Unaware of the tuition remission agreement, the Admissions Committee nonetheless decided to admit Adam to GSP. After the Admissions Committee passed upon Adam's application, Dr. Berne asked Ms. Hall to review his file. Ms. Hall testified that she believed Dr. Berne's request was related to what she described as a previous lawsuit. Upon conducting her review, Ms. Hall concluded that the Admissions Committee's determination was a very good decision. At her deposition, Ms. Hall gave the reasons for her conclusion.

Ms. Hall testified that GSP is a great program for students who can benefit from its smaller classes and more intrusive advising. Ms. Hall added that Adam was not a suitable candidate for CAS because "his transcript was not particularly stellar" and his "S[cholastic] A[ptitude] T[est score]s... would have been in the lower part" of the class for which he applied. She felt that Adam had done well in his particular high school, where there is a lot of individual attention, which is also something that GSP provides. Ms. Hall further testified that Adam was not "on the bubble" as defined above and his low grade point average led her and the Admissions Committee to believe that he would benefit from GSP's seminar style teaching as opposed to the teaching method of CAS, which is a "research university" and does not provide the intrusive support offered by GSP.

Adam registered as a freshman in GSP but later withdrew his registration, citing the university's denial of his request for permission to take certain elective courses he wanted during his freshman year, in addition to its unwillingness to admit him to CAS. Adam applied for and was denied admission to the freshman classes at Brown, Columbia and Georgetown Universities, as well as Dartmouth College. He transferred to Columbia University after completing his freshman year at the University of Miami. Plaintiff's claim for damages includes the tuition paid to both universities.

Under the first cause of action of the amended complaint, plaintiff alleges that in breach of the tuition remission agreement the Admissions Committee did not extend the agreed-to considerations and courtesies in acting upon Adam's application for admission to CAS. Plaintiff's second cause of action is based on a contract theory with respect to prospective applications for admission to NYU to be filed by his two younger children. Supreme Court granted defendant's motion for summary judgment and denied plaintiff's cross motion for an order determining liability in his favor based on defendant's alleged spoliation of evidence. We now affirm.

As noted above, NYU's Admissions Committee should have been, but was not made aware of Adam's rights under the tuition remission agreement when it processed his application. Seizing upon that misstep, plaintiff argues that defendant's liability has been established by its negative answer to the following interrogatory: "Did the Admissions Committee take into account the Courtesies and Considerations Provision [of the tuition remission agreement] in evaluating Adam Flomenbaum's application for admission to the freshman class entering CAS in the Fall 2006 semester?" That interrogatory, however, misses the point. The relevant question is whether Adam was accorded the same courtesies as the son or daughter of a university employee would have received. As set forth above, such courtesies consist of a second look at the Admissions Committee's decision to make sure it is fair, and additional consideration for admission to GSP if an applicant is not qualified for admission to the school or college to which he or she has applied. Plaintiff cites no proof in the record that the courtesies required by the tuition remission agreement encompass anything else. A party opposing summary judgment must submit proof in evidentiary form or explain the failure to do so (Barbour v Knecht, 296 AD2d 218, 227 [2002]). Plaintiff has thus failed to meet his burden in light of NYU's prima facie showing of entitlement to summary judgment. Because no additional courtesies have been identified, we disagree with the dissent's view that NYU's offer of admission to GSP "provides significant support for plaintiff's allegation that Adam would have been admitted to CAS if Adam had received the courtesies' to which plaintiff was entitled." Ms. Hall's testimony about her handling of Adam's application and the reasons for her determination constitute proof that the Admissions Committee's decision was given the required second look and Adam was properly and fairly considered for GSP. Because this proof is not refuted we find it dispositive of the issue. Hence, despite the initial lack of communication between Dr. Berne and the Admissions Committee, Adam's application was handled with all of the courtesies required under the parties' tuition remission agreement.

For two reasons we disagree with the dissent's premise that a "jury could find that the reason the admissions committee took a second look at Adam's application was not because of the bargained for courtesies, but rather because of its initial breach of the contract." First, the salient point is that the contractually required second look was taken, albeit after Dr. Berne initially failed to communicate with the Admissions Committee. The reason for the second look would, therefore, be irrelevant. Second, the inquiry suggested by the dissent involves the issue of academic decision-making. Courts exercise restraint in applying traditional legal rules to determinations concerning academic qualifications because such determinations generally rest upon the subjective professional judgment of trained educators (Matter of Olsson v Bd. of Higher Educ. of City of N.Y., 49 NY2d 408, 413 [1980]). When asked to review the substance of a genuinely academic decision, such as the one at issue here, courts should show great respect for the faculty's professional judgment. "Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment" (Regents of Univ. of Mich. v Ewing, 474 US 214, 225 [1985]). The record before us demonstrates that in taking a second look at the Admissions ...


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