| Wander v St. John's Univ. |
| 2012 NY Slip Op 06941 [99 AD3d 891] |
| October 17, 2012 |
| Appellate Division, Second Department |
| Lawrence Wander et al., Respondents, v St. John'sUniversity et al., Appellants. |
—[*1] Kaiser Saurborn & Mair, P.C., New York, N.Y. (Daniel J. Kaiser and Israel Goldberg ofcounsel), for respondents.
In an action to recover damages for breach of contract and for discrimination on the basis ofage in violation of, inter alia, Executive Law § 296, the defendants appeal from an order ofthe Supreme Court, Kings County (Knipel, J.), dated July 8, 2011, which denied their motionpursuant to CPLR 3211 (a) (7) to dismiss the complaint for failure to state a cause of action.
Ordered that on the Court's own motion, so much of the action as sought to recover damagesfor breach of contract is converted to a proceeding pursuant to CPLR article 78 (seeCPLR 103 [c]); and it is further,
Ordered that the order is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiffs.
The plaintiffs, Lawrence Wander and John Manna, were tenured professors at St. John'sUniversity's business school. They commenced this action in September 2007 to recoverdamages for discrimination on the basis of age in violation of the New York State Human RightsLaw (Executive Law § 296) and the New York City Human Rights Law (AdministrativeCode of City of NY § 8-107 et seq). The complaint also set forth a cause of actionto recover damages for breach of contract.
Specifically, the complaint alleged that the defendants engaged in a variety of practiceswhich resulted in systematic discrimination against older employees and that, through thesepractices, the plaintiffs were discriminated against on the basis of their ages. The complaintfurther alleged that when the plaintiffs objected to these discriminatory practices, the defendantstook adverse employment actions against them. The complaint alleged that the defendants'actions violated the New York State Human Rights Law and the New York City Human RightsLaw. The complaint also alleged that the defendants breached their contract with the plaintiffs byfailing to follow the rules and procedures adopted by the defendants to govern the tenure of itsfaculty.[*2]
After considerable discovery was conducted, thedefendants, in January 2011, moved to dismiss the complaint pursuant to CPLR 3211 (a) (7) forfailure to state a cause of action. The defendants asserted, inter alia, that the allegedlydiscriminatory practices and allegedly adverse employment actions constituted "academic"determinations and, therefore, that they could only be challenged in a CPLR article 78 proceedingrather than a plenary action. The Supreme Court denied the defendants' motion. The defendantsappeal and we affirm.
On a motion to dismiss the complaint pursuant to CPLR 3211 (a) (7) for failure to state acause of action, the court must afford the pleading a liberal construction, accept all facts asalleged in the pleading to be true, accord the plaintiff the benefit of every possible inference, anddetermine only whether the facts as alleged fit within any cognizable legal theory (see Leon vMartinez, 84 NY2d 83, 87 [1994]; Norment v Interfaith Ctr. of N.Y, 98 AD3d 955 [2012]).
Contrary to the defendants' contention, the complaint states valid causes of action to recoverdamages for violations of the New York State Human Rights Law and the New York CityHuman Rights Law. While it is true that "administrative decisions of educational institutionsinvolve the exercise of highly specialized professional judgment and these institutions are, for themost part, better suited to make relatively final decisions concerning wholly internal matters"(Maas v Cornell Univ., 94 NY2d 87, 92 [1999]; see Frankel v Yeshiva Univ., 37 AD3d 760 [2007]; Demas vLevitsky, 291 AD2d 653, 660 [2002]; Gertler v Goodgold, 107 AD2d 481, 485[1985], affd 66 NY2d 946 [1985]), the fact that an employer is an educational institutiondoes not permit it to discriminate against its employees on the basis of age, or otherwise insulateit from liability for violations of the New York State Human Rights Law or the New York CityHuman Rights Law. Since the causes of action to recover damages for violations of the NewYork State Human Rights Law and the New York City Human Rights Law relate to nonacademicmatters, the Supreme Court properly denied those branches of the defendants' motion which wereto dismiss those causes of action pursuant to CPLR 3211 (a) (7) (see Eidlisz v New York Univ., 15NY3d 730, 731-732 [2010]; Fils-Aime v Ryder TRS, Inc., 40 AD3d 914, 915 [2007]).
As for the breach of contract cause of action, the plaintiffs failed to specify a contractualbasis for the allegation that the defendants failed to follow its internal rules and proceduresduring the disciplinary process (see Shields v School of Law of Hofstra Univ., 77 AD2d867, 868 [1980]). Since the plaintiffs' cause of action to recover damages for breach of contractonly alleges violations of the defendants' internal rules and procedures, to the extent that they donot form a basis for the discrimination causes of action, the plaintiffs are only entitled to CPLRarticle 78 review (see Maas v Cornell Univ., 94 NY2d at 92; Risley v Rubin, 272AD2d 198 [2000]; Holm v Ithaca Coll., 256 AD2d 986, 988 [1998]; Gertler vGoodgold, 107 AD2d at 484, 487). However, contrary to the defendants' contention, theplaintiffs' cause of action to recover damages for breach of contract should not be dismissedsolely because it was not brought in the proper form (see CPLR 103 [c]; Tae Hwa Yoon v New York Hahn WoleeChurch, Inc., 56 AD3d 752 [2008]; Matter of Maggi v Maggi, 187 AD2d 722[1992]). "[G]enerally, where an action or proceeding is brought in the wrong form or under aninappropriate statute, the court, in its discretion, may deem it brought in a proper fashion, thusavoiding a dismissal" (Tae Hwa Yoon v New York Hahn Wolee Church, Inc., 56 AD3dat 755, quoting Matter of Schmidt [Magnetic Head Corp.], 97 AD2d 244, 250 [1983]). Inlight of, inter alia, the fact that the plaintiffs commenced this action within four months of thediscontinuation of their salaries (seeGary v New York Univ., 48 AD3d 235, 236 [2008]), we convert the cause of actionalleging breach of contract to a proceeding pursuant to CPLR article 78 (see CPLR 103[c]; Tae Hwa Yoon v New York Hahn Wolee Church, Inc., 56 AD3d at 755; Melvinv Union Coll., 195 AD2d 447 [1993]; cf. Awan v City of New York, 92 AD3d 406 [2012]). Accordingly,that branch of the defendants' motion which was to dismiss the cause of action alleging breach ofcontract was properly denied, but for reasons different from those relied upon by the SupremeCourt (see Matter of Perrin v BayvilleVil. Bd., 70 AD3d 835 [2010]; Tae Hwa Yoon v New York Hahn Wolee Church,Inc., 56 AD3d at 755; Matter of Maggi v Maggi, 187 AD2d at 722). Dickerson, J.P.,Belen, Chambers and Miller, JJ., concur.