| Weston v Cornell Univ. |
| 2008 NY Slip Op 09310 [56 AD3d 1074] |
| November 26, 2008 |
| Appellate Division, Third Department |
| Leslie A. Weston, Appellant, v Cornell University,Respondent. |
—[*1] Wendy E. Tarlow, Ithaca, for respondent.
Rose, J. Appeal from that part of an order of the Supreme Court (Mulvey, J.), entered June13, 2007 in Tompkins County, which partially granted defendant's motion to dismiss thecomplaint.
Plaintiff left a tenured position at another university to accept defendant's written offer of "anappointment as Associate Professor with tenure." The process to confirm plaintiff's tenure,however, was delayed and, ultimately, never completed. When plaintiff was then notified that heremployment would be terminated, she commenced this action alleging, among other things,breach of contract. Defendant moved to dismiss the complaint, asserting a defense founded ondocumentary evidence (see CPLR 3211 [a] [1]). Agreeing with defendant that its writtenoffer could not be read to guarantee tenure, Supreme Court granted defendant's motion to theextent of dismissing plaintiff's breach of contract claim. Plaintiff now appeals.
On a motion pursuant to CPLR 3211 (a) (1), it is well settled that dismissal is warranted onlyif the documentary evidence conclusively establishes a defense and resolves every factual issueas a matter of law (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman, Millstein,Felder & Steiner, 96 NY2d 300, 303 [2001]; Sanford v Colgate Univ., 36 AD3d 1060, 1061 [2007]; Ozdemirv Caithness Corp., 285 AD2d 961, 963 [2001], lv denied 97 NY2d 605 [2001]).Here, the issue raised by defendant's motion is whether the written offer clearly andunambiguously establishes that plaintiff was not assured that her employment would be protectedby tenure and, thus, she would have no claim for breach of contract. In determining whether a[*2]contract's provisions are ambiguous, a court must determineas a matter of law whether they "lack a definite and precise meaning and provide a reasonablebasis for a difference of opinion" (Capital Dist. Enters., LLC v Windsor Dev. of Albany, Inc., 53 AD3d767, 770 [2008]; see CV Holdings,LLC v Artisan Advisors, LLC, 9 AD3d 654, 656 [2004]; Pozament Corp. v AES Westover,LLC, 27 AD3d 1000, 1001 [2006]). If a relevant ambiguity is found, then it cannot besaid that the documentary evidence conclusively establishes a defense as a matter of law and amotion to dismiss on the basis of such evidence cannot be granted (see TVGA Eng'g, Surveying, P.C. vGallick, 45 AD3d 1252, 1254-1255 [2007]; Mendelovitz v Cohen, 37 AD3d 670, 670-671 [2007]; Venture Silicones, Inc. v General Elec.Co., 14 AD3d 924, 925 [2005]; cf. Town of Riverhead v Silverman, 54 AD3d 1025, 1026 [2008];Ozdemir v Caithness Corp., 285 AD2d at 964).
In the first sentence of the second paragraph of the writing at issue here, defendant clearlyoffers plaintiff an appointment as an associate professor with tenure. It is arguable, however, thatthe next paragraph describing the process for confirming tenure suggests a contrary conclusion.That is, the offer could be viewed not as a guarantee, but only a promise that defendant wouldprocess plaintiff's application for tenure. Since such a conclusion is inconsistent with both theinitial offering language and a concluding sentence stating that defendant did not anticipate anyproblems with the tenure process, the contract resulting from plaintiff's acceptance of the offer isambiguous as to tenure. Thus, the documentary evidence upon which defendant relies does notresolve every factual issue as to plaintiff's claim for breach of contract and its motion to dismissshould not have been granted (see e.g. Mendelovitz v Cohen, 37 AD3d at 671).
Mercure, J.P., Spain, Kane and Stein, JJ., concur. Ordered that the order is modified, on thelaw, without costs, by reversing so much thereof as partially granted defendant's motion todismiss; motion denied in its entirety; and, as so modified, affirmed.