Bisimwa v. St. John Fisher Coll.

• Decision Date: 07 May 2021
• Docket Number: CA 20-00364,1093
• Citation: 149 N.Y.S.3d 428,194 A.D.3d 1467
• Parties: Franck BISIMWA, Plaintiff-Respondent, v. ST. JOHN FISHER COLLEGE, Terri L. Travaglini, in Her Official Capacity as Assistant Dean of Students at St. John Fisher College and Terri L. Travaglini, Individually, Defendants-Appellants.
• Court: New York Supreme Court — Appellate Division

194 A.D.3d 1467

149 N.Y.S.3d 428

Franck BISIMWA, Plaintiff-Respondent,

v.ST. JOHN FISHER COLLEGE, Terri L. Travaglini, in Her Official Capacity as Assistant Dean of Students at St. John Fisher College and Terri L. Travaglini, Individually, Defendants-Appellants.

1093

CA 20-00364

Supreme Court, Appellate Division, Fourth Department, New York.

Entered: May 7, 2021

WARD GREENBERG HELLER & REIDY LLP, ROCHESTER (JOSHUA M. AGINS OF COUNSEL), FOR DEFENDANTS-APPELLANTS.

COUCH WHITE, LLP, ALBANY (ELIZABETH L. CALLAHAN OF COUNSEL), AND THE LAW OFFICE OF ROBERT KING, PLLC, ROCHESTER, FOR PLAINTIFF-RESPONDENT.

PRESENT: SMITH, J.P., PERADOTTO, CURRAN, BANNISTER, AND DEJOSEPH, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting those parts of the motion seeking to dismiss the first and second causes of action against defendant Terri L. Travaglini, to dismiss the third cause of action in its entirety, and to dismiss the claim for punitive damages, and as modified the order is affirmed without costs.

Memorandum: Plaintiff, while enrolled as a freshman at defendant St. John Fisher College (College), was found responsible following a student conduct hearing for several violations of the College's student code of conduct, including sexual misconduct and assault, arising from a sexual encounter with another student. As a result, he was expelled. Although plaintiff was also later criminally prosecuted on charges of rape in the first and third degrees, a jury found him not guilty of those alleged crimes. Plaintiff and the College thereafter entered into a settlement and release agreement in which each party agreed to various terms to resolve any disputes between them. While neither party admitted any wrongdoing and plaintiff remained expelled, the College acknowledged that if new evidence, including the trial testimony of several witnesses, had been available during the student conduct hearing, a different result may have been reached in the disciplinary proceeding. Among other terms, the College agreed to expunge the notation of disciplinary action and sanctions from plaintiff's transcript and to expunge references to disciplinary action from any other records of the College made available to third parties.

Plaintiff subsequently commenced this action against the College and defendant Terri L. Travaglini, individually and in her official capacity as Assistant Dean of Students at St. John Fisher College, alleging causes of action for, inter alia, breach of contract and defamation. In relevant part, plaintiff alleged that defendants breached the agreement and defamed him when, in response to his authorizations for the release of information as part of his applications to the University at Buffalo (UB) and SUNY Buffalo State College (Buffalo State), Travaglini disclosed to those educational institutions information regarding the finding of responsibility against plaintiff for his violations of the student code of conduct and his resulting expulsion. Defendants now appeal from an order insofar as it denied that part of their pre-answer motion seeking dismissal of the first and second causes of action, alleging breach of contract, and the third cause of action, alleging defamation, to the extent it is based on the disclosure to Buffalo State.

Defendants contend that Supreme Court erred in denying that part of their motion seeking to dismiss the breach of contract causes of action against Travaglini for failure to state a cause of action (see CPLR 3211 [a] [7] ) because she is not a party to the agreement. We agree, and we therefore modify the order accordingly.

Here, plaintiff failed to state a cause of action alleging breach of contract against Travaglini individually because she is not a party to the agreement, which is exclusively between plaintiff and the College (see Itzkowitz v. Ginsburg , 186 A.D.3d 579, 581, 129 N.Y.S.3d 117 [2d Dept. 2020] ; Environmental Appraisers & Bldrs., LLC v. Imhof , 143 A.D.3d 756, 757, 40 N.Y.S.3d 132 [2d Dept. 2016] ). To the extent that plaintiff alleged that Travaglini was liable in her official capacity as Assistant Dean of Students, he effectively alleged that Travaglini acted as an agent on behalf of the College (see Environmental Appraisers & Bldrs., LLC , 143 A.D.3d at 757-758, 40 N.Y.S.3d 132 ). " ‘When an agent acts on behalf of a disclosed principal, the agent will not be personally liable for a breach of contract unless there is clear and explicit evidence of the agent's intention to be personally bound’ " ( Simmons v. Washing Equip. Tech. , 51 A.D.3d 1390, 1392, 857 N.Y.S.2d 412 [4th Dept. 2008] ; see Salzman Sign Co. v. Beck , 10 N.Y.2d 63, 67, 217 N.Y.S.2d 55, 176 N.E.2d 74 [1961] ). Plaintiff did not allege that Travaglini intended to be personally bound (see Environmental Appraisers & Bldrs., LLC , 143 A.D.3d at 757-758, 40 N.Y.S.3d 132 ; Simmons , 51 A.D.3d at 1392, 857 N.Y.S.2d 412 ).

We nonetheless reject defendants’ further contention that the court erred in denying that part of their motion seeking to dismiss the breach of contract causes of action against the College based on documentary evidence (see CPLR 3211 [a] [1] ). "When a court rules on a CPLR 3211 motion to dismiss, it ‘must accept as true the facts as alleged in the complaint and submissions in opposition to the motion, accord plaintiff[ ] the benefit of every possible favorable inference and determine only whether the facts as alleged fit within any cognizable legal theory’ " ( Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs., Inc. , 20 N.Y.3d 59, 63, 956 N.Y.S.2d 439, 980 N.E.2d 487 [2012] ). "The motion may be granted if ‘documentary evidence utterly refutes [the] plaintiff's factual allegations’ ..., thereby ‘conclusively establishing a defense as a matter of law’ " ( id. ). "One example of such proof is an unambiguous contract that indisputably undermines the asserted causes of action" ( id. ). In that regard, "[a] written agreement that is clear, complete and subject to only one reasonable interpretation must be enforced according to the plain meaning of the language chosen by the contracting parties" ( Brad H. v. City of New York , 17 N.Y.3d 180, 185, 928 N.Y.S.2d 221, 951 N.E.2d 743 [2011] ). In construing an agreement, "language should not be read in isolation" ( id. ); rather, it " ‘must be read as a whole to give effect and meaning to every term’ " ( Maven Tech., LLC v. Vasile , 147 A.D.3d 1377, 1378, 46 N.Y.S.3d 720 [4th Dept. 2017] ; see Paramax Corp. v. VoIP Supply, LLC , 175 A.D.3d 939, 941-942, 107 N.Y.S.3d 231 [4th Dept. 2019] ).

Here, upon reading the agreement as a whole to give effect and meaning to every term, we conclude that there is no merit to defendants’ contention that the agreement permitted the disclosure of plaintiff's non-expunged disciplinary history to third parties such as other educational institutions. The first relevant paragraph of the agreement, which defendants ignore in presenting their argument, prohibited the parties from communicating any defamatory or disparaging statements to third parties but left undisturbed the College's "right to perform any action in its normal course of business, including without limit disclosing any student conduct history other than violations found at the Student Conduct Hearing " (emphasis added). The agreement thus clearly contemplated that the College's right to disclose plaintiff's disciplinary history was circumscribed to the extent that the College could not, as it might normally do in the course of its business, disclose violations found during the subject student conduct hearing against plaintiff. That reading is reinforced by the second relevant paragraph, which indicated that the College agreed to expunge the notation of disciplinary action and sanctions from plaintiff's transcript and, in addition , provided that "references to any disciplinary action shall be expunged from any other [College] records that are made available to third parties." Taken together, the relevant paragraphs provide that, whatever was disclosed by the College to third parties, it would not include any reference to the disciplinary action taken against plaintiff as a result of the subject incident.

Defendants nonetheless contend that the final sentence of the second relevant paragraph, which allowed the College to retain records of the underlying disciplinary proceeding, permitted the disclosure of the finding of responsibility against plaintiff. That contention also lacks merit. The final sentence stated that the College "shall retain records of the underlying disciplinary proceedings consistent with its record retention protocols generally applicable to records of such proceedings, which shall be treated as confidential student records under applicable law and [College] policies." As plaintiff correctly contends, the final sentence allowed the College to retain for its own internal record-keeping purposes the record of the underlying disciplinary proceeding and provided that, for purposes of such retention, the record would be treated as confidential. But retention of records by the College is decidedly different from disclosure thereof to third parties, and the final sentence is preceded by one unambiguously stating that references to any disciplinary action would be expunged from any records that the College made available to third parties. Thus, contrary to defendants’ assertion, even if an "applicable law" permitted disclosure such that there would be no violation of that law, the agreement here barred disclosure of any non-expunged disciplinary history.

We further conclude that the additional documentary evidence submitted by defendants in support of their motion to dismiss, i.e., the authorizations for release of information executed by plaintiff, does not establish as a matter of law that plaintiff abandoned his contractual rights under the agreement ...