Rogoff v. Long Island Univ.
| Docket Number | Index No. 510388/2019,Mot. Seq. No. 5 |
| Decision Date | 06 July 2023 |
| Citation | 2023 NY Slip Op 32273 (U) |
| Parties | Edward Rogoff, Plaintiff, v. Long Island University, Defendant. |
| Court | New York Supreme Court |
DECISION/ORDER
WAYNE P. SAITTA JUDGE.
The following e-filed papers read herein:
NYSCEF Doc. Nos.:
Notice of Motion, Affirmations, Memorandum of Law and Exhibits Annexed
Affirmations (Affidavits) in Opposition, Memorandum of Law, and Exhibits Annexed
Reply Memorandum of Law and Response
122-123
Post-Argument Letter Submissions
In this action to recover damages for breach of contract, age discrimination, and unlawful retaliation, defendant Long Island University ("defendant") moves for an order pursuant to CPLR 3212 (b), dismissing the complaint of plaintiff Edward Rogoff ("plaintiff"). Plaintiff opposes defendant's motion.
By letter, dated July 6, 2015, plaintiff, age 63, entered into a three-year agreement with defendant to be employed as Dean of its Brooklyn School of Business ("BSB") at the specified annual salary, effective August 27, 2015 (the "administrative-employment contract").[1] The administrative-employment contract provided (in unnumbered ¶ 7 thereof) that "[o]ther terms and conditions of employment will be in accordance with University [i.e., defendant's] policy," as more fully reproduced in the margin.[2]
Approximately 2-1/2 years later, on March 22, 2018, plaintiff was notified that he would cease acting as Dean of BSB as of June 1 2018.[3] Plaintiff's successor, Raymond Pullaro ("Pullaro"), age 49 and approximately 17 years junior to plaintiff, was appointed as Interim Dean of the BSB effective June 1, 2018. Approximately three years later, in September 2021, Pullaro was replaced by Christopher Bates ("Bates"), age 65 and approximately 5 years junior to plaintiff, as Interim Dean of the BSB. Eight months later, in April 2022, Bates was replaced by Graziela Fusaro ("Fusaro"), age 51 and approximately 19 years junior to plaintiff, as Dean of the BSB.[4] Unlike plaintiff, neither Fusaro, nor her predecessors, Pullaro and Bates, hold (or held) a doctorate degree.
To return to the chronology of events. By email, dated May 30, 2018, plaintiff was notified that his salary as Dean would "remain in effect until August 30, 2018."[5] By letter, also dated May 30, 2018, plaintiff was offered to "become a member of the [BSB] faculty effective September 1, 2018 at the rank of Full Professor[6] and annual salary of $86,319.64" (the "proposed faculty-employment contract").[7] By email, dated June 8, 2018, plaintiff rejected the terms of the proposed faculty-employment contract, explaining that it "does not reflect my contract with the University and existing University policy in such situations"; namely: (1) the "one-year paid sabbatical at my current salary," and (2) the "continuing employment as a Professor at no less than 75% of my current salary going forward".[8] Defendant, by a series of written communications to plaintiff, denied his request to be granted the extracontractual terms. By email, dated August 30, 2018, plaintiff was notified that [9] By letter, also dated August 30, 2018, plaintiff was requested to confirm his return to his tenured faculty position beginning September 1, 2018, in the BSB in the Department of Managerial Sciences. The letter stated that his base salary would be $86,319.64 and that If he accepted the appointment, he should sign and return the letter within 48 business hours."[10] Although plaintiff did not sign the proposed faculty-employment contract, it is undisputed that he commenced teaching as a faculty member in September 2018 and for some period of time, that is unclear from the record, he was paid at a rate of $86,319.64.[11]
At a face-to-face meeting with a member of defendant's Board of Trustees, Ron Silvestri ("Trustee Silvestri"), held off-campus in the early part of September 2018,[12]plaintiff handed to Trustee Silvestri a memorandum, titled "Areas of Danger to the Board" (NYSCEF Doc. No. 93) ("plaintiff's memo of concerns"). Plaintiff's memo of concerns criticized defendant's high-ranking administration, and particularly defendant's President Kimberly Cline ("President Cline"), for what he perceived to have been her serious failings across defendant's entire university.
Following Plaintiff's meeting with Trustee Silvestri, plaintiff was notified that his "status as a faculty member was being unilaterally changed by from Full Professor to Adjunct [F]aculty," with "a reduction of his faculty salary and a loss of benefits."[13] At some point thereafter, plaintiff's demotion was revoked by defendant.[14] Plaintiff's current status with defendant is that of a tenured full professor."[15]
By letter, dated October 11, 2018, defendant reiterated that [16]
On May 9, 2019, plaintiff commenced this action alleging claims sounding in: (1) breach of the administrative-employment contract (first cause of action); (2) age discrimination under the State and City Human Rights Laws (see Executive Law art 15 ["NYSHRL"] and Administrative Code § 8-101 et seq. ["NYCHRL"], respectively) (second and third causes of action); and (3) unlawful retaliation under the NYSHRL and NYCHRL (fourth and fifth causes of action).[17] Plaintiff seeks compensatory damages of at least $395,000, as well as punitive damages (Complaint, Wherefore Clause). In lieu of an answer, defendant initially moved to dismiss the complaint as barred by documentary evidence and for failure to state a cause of action, pursuant to CPLR 3211 (a) (1) and (7), respectively. By decision/order, dated January 10, 2020, the Court (Sweeney, J.) denied defendant's pre-answer motion in its entirety. Addressing the documentary-evidence branch of defendant's motion, Justice Sweeney held that defendant had not established, at the pre-answer stage of litigation, that the parties intended the letter to embody the entire agreement between them and that the plaintiff is barred from introducing evidence extrinsic to the letter to establish the terms of the contract."(. Addressing the remaining branch of defendant's motion which is for dismissal for failure to state a cause of action, Justice Sweeney rejected defendant's sweeping contention that plaintiff's relief was limited to that afforded by CPLR article 78 (id.). Rather, Justice Sweeney held that the complaint adequately pleaded the aforementioned causes of action (id.). On defendant's appeal, the Second Judicial Department affirmed Justice Sweeney's decision/order in its entirety, albeit without addressing the applicability (or not) of the parol-evidence rule to expand on the terms of the administrative-employment contract (see Rogoff v. Long Is. Univ., 208 A.D.3d 700 [2d Dept 2022]). Rather, the Second Judicial Department held, in addressing defendant's appeal from the denial of the documentary-evidence branch of its motion, that "[defendant] failed to submit documentary evidence which utterly refuted the plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Rogoff, 208 A.D.3d at 701 [internal quotation marks omitted]).
Following Justice Sweeney's denial of defendant's motion to dismiss, defendant interposed its answer, dated March 6, 2020 (NYSCEF Doc. No. 80). After discovery was completed[18] and a note of issue was filed, defendant served the instant motion for summary judgment. On May 3, 2023, the Court heard oral argument, reserving decision.
"The elements of a cause of action to recover damages for breach of contract are the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and resulting damages" (Ayers v. City of Mount Vernon, 176 A.D.3d 766, 769 [2d Dept 2019]). "It is well settled that a contract is to be construed in accordance with the parties' intent, which is generally discerned from the four corners of the document itself" (MHR Capital Partners LP v. Presstek, Inc., 12 N.Y.3d 640 645 [2009]). "Thus, a written agreement that is complete, clear and unambiguous on its face must be enforced according to the plain meaning of its terms" (Greenfield v. Philles Records, Inc., 98 N.Y.2d 562, 569 [2002]). "It is [further] well settled that extrinsic and parol evidence is not admissible to create an ambiguity in a written agreement which is complete and clear and unambiguous upon its face" (W.W.W. Assoc., Inc. v. Giancontieri, 77 N.Y.2d 157, 163 [1990] [internal quotation marks omitted]). "A contract is unambiguous if the language it uses has a definite and precise meaning, unattended by danger of misconception in the purport of the agreement itself, and concerning which there is no reasonable basis for a difference of opinion" (Greenfield, 98 N.Y.2d at 569 [internal quotation marks and alteration omitted]). "Thus, if the agreement on its face is reasonably susceptible of only one meaning, a court is not free to alter the contract to reflect its personal notions of fairness and equity" (id. at 569-570).
Here defendant has established, prima facie, that it did not breach the...
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