Opinion
No. 167 SSM 21.
Decided June 3, 2010.
APPEAL from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered December 3, 2009. The Appellate Division, with two Justices dissenting, affirmed an order of the Supreme Court, New York County (Milton A. Tingling, J.), which had granted a motion by defendant for summary judgment dismissing the complaint and denied a cross motion by plaintiff for an order of preclusion.
In order to resolve a tenure dispute between defendant and plaintiff, a former faculty member at the defendant's school of medicine, the parties executed an agreement providing that plaintiffs children would be entitled to tuition remission upon admission to defendant university for undergraduate or graduate study, and that their admission and tuition remission would be on the same basis and with the same courtesies as would be extended to a current, active, full-time, tenured faculty member. Plaintiffs son applied for admission to defendant's four-year undergraduate degree program. Subsequently, defendant informed him that it was unable to offer him admission to the four-year program; instead he was offered admission to defendant's general studies program, a two-year course of study in the liberal arts. In keeping with the agreement, enrollment in the two-year program would have qualified plaintiffs son for tuition remission. Declining that offer, plaintiffs son enrolled at another university and then transferred to another. Plaintiffs claim for damages included tuition paid to both institutions.
The Appellate Division noted that plaintiff testified that he had no direct knowledge of any other relevant courtesies or considerations than those extended by defendant, and that he acknowledged that the agreement and the courtesies it incorporated did not guarantee a seat for his son in the four-year program. The Court concluded that plaintiff had received his bargained-for fair decision on his son's application for admission, notwithstanding that plaintiffs son's failure to check a box on the admission form indicating that a parent was an employee of defendant resulted in his application initially being treated as one that had been received in the normal course. His application was ultimately given the required second look as per the parties' agreement.
Flomenbaum v New York Univ., 71 AD3d 80, affirmed.
Foley Lardner LLP, New York City ( Barry G. Felder of counsel), for appellant.
Nancy Kilson, New York City, for respondent.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed with costs. Plaintiff failed to present sufficient evidence to raise a triable issue of fact regarding whether defendant New York University breached the parties' underlying contract ( Zuckerman v City of New York, 49 NY2d 557, 560). Plaintiffs remaining contentions lack merit.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, with costs, in a memorandum.