Pauk v. Board of Trustees of City University of New York

• Decision Date: 16 June 1983
• Citation: 464 N.Y.S.2d 953,119 Misc.2d 663
• Parties: , 12 Ed. Law Rep. 470 Edgar PAUK, Plaintiff, v. BOARD OF TRUSTEES OF the CITY UNIVERSITY OF NEW YORK, Defendant.
• Court: New York Supreme Court

Page 953

464 N.Y.S.2d 953

119 Misc.2d 663, 12 Ed. Law Rep. 470

Edgar PAUK, Plaintiff, v. BOARD OF TRUSTEES OF the CITY UNIVERSITY OF NEW YORK, Defendant.

Supreme Court, Special Term New York County, Part 1.

June 16, 1983.

Jonathan A. Weiss, New York City, for plaintiff.

Frederick A.O. Schwarz, Jr., Corp. Counsel by Patricia A. O'Malley, Gregg M. Mashberg, New York City, for defendant.

EVE PREMINGER, Justice:

Defendant moves to dismiss plaintiff's complaint.

Plaintiff was employed by Queens College in 1969 in its Department of Romance Languages, receiving one year employment contracts from 1969 through 1975. Under section 6212 of the Education Law, upon the completion of five years of service as a faculty member in a tenure bearing title, an individual must be informed whether he will be reappointed and thereby granted tenure. In 1975 plaintiff was accordingly considered by various academic committees who recommended that he not be given tenure. Offered the opportunity to appeal, plaintiff did so in a letter dated October 30, 1975 which characterized the negative recommendation as arbitrary, discriminatory and retaliatory of unionizing activity he had engaged in at the College.

On November 14, 1975 the college president informed plaintiff that he had decided to accept the faculty's recommendation not to grant him tenure despite plaintiff's appeal. Plaintiff was advised that his employment with the College would end with the expiration of his current contract in August of 1976.

Within four months of the administrative determination that he not be reappointed, plaintiff brought an article 78 proceeding to challenge the decision. In that proceeding plaintiff claimed that the decision to deny him tenure was illegal since his length of service automatically entitled him to tenure. Plaintiff sought reinstatement and an order declaring his right to a permanent position at the college. That proceeding was adjudicated against the plaintiff, Pauk v. Board of Higher Education, 62 A.D.2d 660, 406 N.Y.S.2d 46 (1st Dept.1978), aff'd, 48 N.Y.2d 930, 425 N.Y.S.2d 92, 401 N.E.2d 214 (1979).

In August of 1979, more than three years after the notification of tenure denial, plaintiff instituted a federal civil rights suit claiming that the college board of trustees and other defendants had violated his first amendment rights in denying him tenure in retaliation for his union activities. He further alleged that the defendants had violated his contract rights as secured by article V, section 6, of the New York State Constitution by failing to assess his teaching abilities according to his "merit and fitness." That action was dismissed as time-barred, Pauk v. Board of Trustees, 79 Civ. 2250 (S.D.N.Y.1980) (Mishler, J.), aff'd 654 F.2d 856 (2d Cir.), cert. denied, 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866 (1982). The federal court held that plaintiff's civil rights claim accrued at the time he received notice of denial of tenure and found that the limitations period had run.

In October, 1981, plaintiff instituted the instant action, stating three causes of action. The first is a claim that by failing to renew plaintiff's appointment on the basis of merit and fitness, defendant breached plaintiff's employment contract. The second asserts that defendant's conduct is violative of plaintiff's rights under article V of the New York Constitution, and 6212 of the Education Law. Plaintiff's third cause of action attacks the constitutionality of the defendant's policies of neither releasing the numerical results of balloting nor giving reasons for its decisions. The relief sought by plaintiff includes renewal of his employment contract, the grant of tenure and damages for lost salary and benefits.

Turning first to plaintiff's third cause of action because it merits the briefest treatment, the Court finds that it fails to state a cause of action. No reasons need by given a nontenured teacher who has been denied reappointment (Legislative Conference v. Board of Higher Education, 38 A.D.2d 478, 330 N.Y.S.2d 688, aff'd 31 N.Y.2d 926, 340 N.Y.S.2d 924, 293 N.E.2d 92, McMaster v. Owens, 275 A.D. 506, 90 N.Y.S.2d 491, Matter of Fallon v. Board of Higher Education, 14 Misc.2d 9, 178 N.Y.S.2d 459, aff'd 9 A.D.2d 766, 192 N.Y.S.2d 239, Schlaflander v. Brooklyn College, N.Y.L.J. July 12, 1967, p. 13, col. 7). The recent case of Gray v. Board of Higher Education, 692 F.2d 901, cited by plaintiff for the contrary proposition, is inapposite. Plaintiff in Gray had the burden of establishing discriminatory intent in his suit under 42 U.S.C. section 1981 and for this reason the court granted him discovery of the vote of the panel which had denied him tenure. Nowhere in its opinion did the court recognize a cause of action similar to plaintiff's nor is there even dicta to the effect that it is unconstitutional to withhold the reasons for a denial of tenure. Defendant's motion to dismiss the third cause of action is accordingly granted.

Plaintiff's first and second causes of action require more extended analysis.

Defendant first argues that the remainder of plaintiff's action is barred on the basis of res judicata by the article 78 proceeding which, asserts defendant, dealt with the same issues as the instant case. In Reilly v. Reid, 45 N.Y.2d 24, 407 N.Y.S.2d 645, 379 N.E.2d 172, the court of appeals discussed the general rules regarding the application of res judicata. Noting that the flexible principles of the Second Restatement of Judgments were in accord with New York law, the court stated that "... no single definitional formulation is always determinative," 45 N.Y.2d 24 at 29, 407 N.Y.S.2d 645, 379 N.E.2d 172. Guidelines were, nonetheless, enunciated. Where a party's actions involve the same gravamen of wrong, the same transaction or series of transactions, and are different only in the grounds for relief, evidence presented, or remedies sought, the second claim is generally barred by res judicata, 45 N.Y.2d 24 at 30, 407 N.Y.S.2d 645, 379 N.E.2d 172. Analyzed in the light of these principles, plaintiff's latest action is the exemplar of a case suitable for dismissal on res judicata grounds. The central wrong complained of is defendant's allegedly improper denial of tenure to plaintiff, just as it was in the article 78 proceeding. So too is the relief sought similar. Only the "precise theory on which illegality of the action is predicated" is different (45 N.Y.2d 24 at 30, 407 N.Y.S.2d 645, 379 N.E.2d 172).

Plaintiff contends that the rule of Reilly is inapplicable to him because it was legally impossible for him to assert all of his causes of action in the original article 78 proceeding. This is because the scope of a special proceeding is limited; a person seeking review of an administrative or quasijudicial determination must proceed by way of an article 78 proceeding, but it is clear that he may not have vindication of his contractual rights in such a proceeding, Corbeau Const. Corp. v. Board of Ed. U.F.S.D. # 9, 32 A.D.2d 958, 302 N.Y.S.2d 940, Oshinsky v. Nicholson, 55 A.D.2d 619, 389 N.Y.S.2d 410, et al. If a party mistakenly brings a special proceeding seeking to enforce rights contained in a private employment contract, the court is only empowered to convert the special proceeding to an action which deals only with the contract claims, Gray v. Canisius College of Buffalo, 76 A.D.2d 30, 430 N.Y.S.2d 163.

At one time it would not have availed plaintiff to complain of the fact that the law prevented him from pleading all of his theories of recovery in his first action. Originally the law prohibited a litigant from bringing two suits stemming from the same wrong even when it was impossible for him to include all of his theories of recovery in the same suit. ("The plaintiff who fails to bring an action in a court capable of granting him complete relief has no further right to a second bite at the same apple...," International Railways of Central America v. United Fruit Company, 254 F.Supp. 233, 238, affirmed in part and reversed in part, 373 F.2d 408, and see section 62 Restatement of Judgments comment J. but see comment K.)

This aspect of the rule of section 62 has been criticized as being unduly harsh (see International Railway of Central America v. United Fruit Company, 373 F.2d 408 at 419, IB Moore, Federal Practice section 0.410at 1169 (2d ed. 1965). In some instances a litigant may be unable to press all of his theories of recovery in his initial suit either because the forum cannot entertain a particular theory of recovery, or because the form of action does not encompass it. These limitations are of little account if the litigant prevails in his claim, but if he loses he is unfairly prevented from recovering on the basis of his other theories.

In answer to this problem the Second Restatement of Judgments has abandoned the earlier rule.

Section 26(c) of the Second Restatement of Judgments (1982) now advises (at 213) that a subsequent claim is not extinguished if,

'the plaintiff was unable to rely on a certain theory of the case or to seek a certain remedy or form of relief in the first action because of the limitation on the subject matter, jurisdiction of the courts or restrictions on their authority to entertain multiple theories or demands for multiple remedies or forms of relief in a single action...'

This exception was not in issue in Reilly, or in subsequent cases.

In the instant case, and in the absence of case law to the contrary, application of the more recent and fair rule of the Second Restatement is warranted and leads to the conclusion that plaintiff is not barred from bringing the instant suit insofar as it seeks damages for breach of contract. As has been discussed, plaintiff could not have asserted his current contract claim in his special proceeding because he would have been entitled neither to "the relief requested... to prosecute... action in the form in which it was brought," Phalen v....