| Gerrish v State Univ. of N.Y. at Buffalo |
| 2015 NY Slip Op 05324 [129 AD3d 1611] |
| June 19, 2015 |
| Appellate Division, Fourth Department |
[*1]
| Robert Gerrish, Appellant, v State University of NewYork at Buffalo et al., Defendants, and UB Foundation Services, Inc., et al.,Respondents. |
Housh Law Offices, PLLC, Buffalo (Frank Housh of counsel), forplaintiff-appellant.
Eric T. Schneiderman, Attorney General, Albany (Frank Brady of counsel), fordefendants-respondents Steven R. Gill, Frank Scannapieco and Mira Edgerton.
Hodgson Russ LLP, Buffalo (Benjamin M. Zuffranieri, Jr., of counsel), fordefendant-respondent Ub Foundation Services, Inc.
Appeal from an order of the Supreme Court, Erie County (John A. Michalek, J.),entered May 5, 2014. The order, among other things, granted the respective motions ofdefendants State University of New York at Buffalo, Steven R. Gill, Frank Scannapiecoand Mira Edgerton and of defendants University at Buffalo, Foundation, Inc. and UBFoundation Services, Inc. to dismiss plaintiff's complaint against them without leave toreplead.
It is hereby ordered that the order so appealed from is unanimously affirmed withoutcosts.
Memorandum: Plaintiff, a student who was terminated from a graduate program atdefendant State University of New York at Buffalo (University), sued the University,three individual professors (University defendants) and three institutional foundationsthrough which the professors were employed or through which their employment wasadministered, asserting claims for breach of contract in a single cause of action. SupremeCourt properly granted the motions of the University defendants and defendantsUniversity at Buffalo, Foundation, Inc. and UB Foundation Services, Inc. (Foundationdefendants) to dismiss the complaint against them.
Plaintiff contends that the court erred in granting the motions by assuming factsoutside the record or, in the alternative, that the court, upon granting the motions, erredin dismissing the complaint instead of granting his request for leave to replead. We rejectthose contentions. "In determining a CPLR 3211 motion, . . . the criterion iswhether the proponent of the pleading has a cause of action, not whether he has statedone . . . The court may also consider affidavits and other evidentiarymaterial to establish conclusively that plaintiff has no cause of action . . .Any facts in the complaint and submissions in opposition to the motion to dismiss areaccepted as true" (Mantione vCrazy Jakes, Inc., 101 AD3d 1719, 1720 [2012] [internal quotation marksomitted]). " 'It is well settled that bare legal conclusions and factual claims [that]are flatly contradicted by the evidence are not presumed to be true on a motion to dismissfor failure to state a cause of action' " (Olszewski v Waters of OrchardPark, 303 AD2d 995, 995 [2003]). We conclude that the court did not err inconsidering the decision and order of a court of coordinate jurisdiction determining thatanother professor was an employee of the University although a foundation at theUniversity funded that professor's research. We further conclude that the court did not errin considering a [*2]letter ruling by the State Departmentof Labor, submitted as an attachment to an affirmation in support of one of the motions,determining that the Foundation defendants did not employ professors even though aninstitutional foundation was the conduit for funds to pay the professors and others.
We agree with defendants that the complaint fails to state a cause of action for breachof contract against the moving defendants, with the exception of the University. Withrespect to the Foundation defendants, we conclude that plaintiff failed to allege acontract with them or that they breached it. With respect to the individual professors, weconclude that the claim for breach of contract against them sounds in educationalmalpractice, which is not a cognizable cause of action in New York (see Alligood vCounty of Erie, 299 AD2d 840, 840-841 [2002]). With respect to the University,although there is an implied contract between a student and the educational institution towhich the student is admitted (see Matter of Carr v St. John's Univ., N.Y.,17 AD2d 632, 633 [1962], affd 12 NY2d 802 [1962]; Prusack v State of NewYork, 117 AD2d 729, 730 [1986]), plaintiff seeks damages against a subsidiary ofthe State of New York, and thus his claim for breach of contract against the University isproperly brought in the Court of Claims. The court therefore properly granted that part ofthe motion of the University defendants to dismiss the complaint against the Universityfor lack of jurisdiction (see Sinhogar v Parry, 53 NY2d 424, 431 [1981]; seee.g. Baldridge v State of New York, 293 AD2d 941, 942 [2002], lv denied 98NY2d 608 [2002]).
Finally, we conclude that the court properly denied plaintiff's request for leave toreplead. The court lacked jurisdiction over the breach of contract claim against theUniversity, the claim for breach of contract asserted against the other moving defendantslacked merit, and plaintiff submitted no proposed amendments to correct the pleadingdeficiencies (cf. Janssen vIncorporated Vil. of Rockville Ctr., 59 AD3d 15, 27-28 [2008]).Present—Scudder, P.J., Centra, Peradotto, Sconiers and Valentino, JJ.