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

• Decision Date: 07 May 1985
• Citation: 488 N.Y.S.2d 685,111 A.D.2d 17
• Parties: , 24 Ed. Law Rep. 1204 Edgar PAUK, Plaintiff-Respondent, v. BOARD OF TRUSTEES OF the CITY UNIVERSITY OF NEW YORK, Defendant-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 685

488 N.Y.S.2d 685

111 A.D.2d 17, 24 Ed. Law Rep. 1204

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

Supreme Court, Appellate Division First Department.

May 7, 1985.

J.A. Weiss, New York City, for plaintiff-respondent.

E.F.X. Hart, New York City, for defendant-appellant.

Before KUPFERMAN, J.P., and SANDLER, FEIN and MILONAS, JJ.

MEMORANDUM DECISION.

Order, Supreme Court, New York County, entered October 18, 1983, granting defendant's motion to dismiss plaintiff's second and third causes of action, and denying the motion to dismiss plaintiff's first cause of action alleging that defendant violated his contractual rights when it denied him tenure and thereafter terminated his employment, modified, on the law, without costs, to grant defendant's motion to dismiss plaintiff's first cause of action, and otherwise affirmed.

In 1967 plaintiff was appointed to the position of lecturer in the Department of Romance Languages in Queens College effective September 1, 1967, and thereafter he was reappointed to that position for the three succeeding academic years. Effective September 1, 1970, plaintiff was appointed to the position of assistant professor in the Department of Romance Languages at Queens College, in which position he served for a period of five succeeding years under annual employment contracts, with the exception of the spring semester of 1972, during which plaintiff was granted a special leave of absence to participate in activities on behalf of his professional union.

In a letter dated October 24, 1975, the President of Queens College informed plaintiff that the College Personnel and Budget Committee of Queens College had recommended against conferring tenure upon him. In a letter dated October 30, 1975 appealing denial of tenure, petitioner alleged in substance that the recommendation had not been based on an evaluation of his merits, but rather was the result of personal animosity towards him among senior faculty members that had been generated by his union activities. The appeal was rejected by the President of Queens College in a letter dated November 14, 1975. In a letter dated November 24, 1975, the Provost of Queens College notified plaintiff that his appointment with Queens College would terminate on August 31, 1976.

In a CPLR Article 78 proceeding commenced on February 9, 1976, alleging that he had acquired tenure as an assistant professor by virtue of his service in that position for five consecutive years and his appointment for a sixth year, plaintiff sought an order declaring him to be a tenured member of the instructional staff of Queens College and requiring the Board of Higher Education of the City of New York to rescind the letter terminating his employment. An order of Special Term sustaining plaintiff's claim was reversed by this court, which dismissed the petition, and that determination was thereafter affirmed by the Court of Appeals (see Pauk v. Board of Higher Education, 62 A.D.2d 660, 406 N.Y.S.2d 46, aff'd 48 N.Y.2d 930, 425 N.Y.S.2d 92, 401 N.E.2d 214).

In August, 1979 petitioner instituted a federal civil rights suit, alleging that the denial of tenure was in retaliation for his union activities and therefore violated his First Amendment rights, and further alleging a violation of his contract rights in that there had been a failure to evaluate him on the basis of "merit and fitness", as mandated by Article V, Section 6 of the New York State Constitution. This action was dismissed as time barred (Pauk v. Board of Trustees, 79 Civ. 2250 [S.D.N.Y.1980] [Mishler, J.], aff'd 2nd Cir., 654 F.2d 856, cert. den. 455 U.S. 1000, 102 S.Ct. 1631, 71 L.Ed.2d 866.)

The present action, setting forth three causes of action, was instituted in October, 1981. The first cause of action alleged that the failure to renew plaintiff's employment violated his employment contract, the claim being based on the contention that Article V, Section 6 mandated that appointments and promotions be made "according to merit and fitness", and that this requirement, although not specifically appearing in his employment contract, was incorporated into the contract as a matter of law. The second cause of action separately alleged a violation of plaintiff's rights under Article V, Section 6 of the New York Constitution and section 6212 of the Education Law. The third cause of action challenged as unconstitutional the policy that maintains the secrecy of the votes of Personnel Committees and refuses to inform candidates of the reasons for the non-renewal of appointments. As relief plaintiff requested, inter alia, that his contract be renewed for the academic year 1976-77, that as a result of such appointment it be declared that he became and remains a tenured member of the instructional staff of Queens College, and that he be made whole for his loss of salary, fringe benefits, pension credit and sabbatical leaves.

Defendant moved for an order dismissing the complaint as failing to state a cause of action, and as barred by the doctrine of res judicata and the Statute of Limitations. In a detailed, comprehensive opinion Special Term granted the motion to dismiss the third and second causes of action, holding that the third cause of action failed to state a cause of action, and that the second cause of action was barred by the doctrine of res judicata since the issues raised in that cause of action could have been presented in the original Article 78 proceeding. However, Special Term denied the motion to dismiss the first cause of action, the one asserting a violation of plaintiff's contract rights, concluding that such an action could not have been brought in the Article 78 proceeding, and that res judicata was accordingly inapplicable. 119 Misc.2d 663, 464 N.Y.S.2d 953.

We disagree with this latter determination, concluding that the first cause of action is barred by res judicata for essentially the same reasons that led to Special Term's dismissal of the second cause of action, and accordingly modify the order appealed from to reverse the denial of the motion for summary judgment dismissing the first cause of action.

As relevant to the issues presented on this appeal, the principles of law governing the application of res judicata were set forth by the Court of Appeals in O'Brien v. City of Syracuse, 54 N.Y.2d 353, 357-358, 445 N.Y.S.2d 687, 429 N.E.2d 1158:

This State has adopted the transactional analysis approach in deciding res judicata issues (Matter of Reilly v. Reid, 45 N.Y.2d 24 [407 N.Y.S.2d 645, 379 N.E.2d 172] ). Under this address, once a claim is brought to a final...