126 A.D.2d 841 | N.Y. App. Div. | 1987
Appeal from an order of the Supreme Court at Special Term (Walsh, Jr., J.), entered December 17, 1985 in Schenectady County, which, inter alia, granted defendant’s motion for summary judgment dismissing the complaint.
Defendant employed plaintiff in a temporary capacity as a research associate in the School of Humanities and Social Sciences from January 12, 1981 to May 5, 1981. That spring, defendant posted a job opening for a tenure-track position of assistant professor/contract archaeologist in the public archaeology program for which is sought an applicant with a doctorate degree. Previously, defendant had employed a non-tenure-track position of research associate or lecturer to teach archaeology, but changed the classification to a tenure-track
On May 2, 1984, at a meeting of all tenured faculty in the department of science and technology studies, continuation of plaintiff’s position and her further appointment were considered. After due discussion of the question, the faculty unanimously voted not to continue the position of assistant professor/ contract archaeologist, but rather to pursue a new direction. Plaintiff was notified of this decision and offered a one-year terminal appointment beginning July 1, 1984 and ending June 30, 1985. Plaintiff accepted this appointment on May 22, 1984. Thereafter, defendant determined that plaintiff’s position should be replaced with a part-time tenure-track position, emphasizing computer archaeology. This newly created position was posted. Plaintiff did not apply for this position and another person was appointed for one academic year.
Plaintiff commenced this action on or about December 1, 1984 for breach of contract, fraud and sexual discrimination. After issue was joined, Special Term granted defendant’s motion for summary judgment dismissing all three causes of action for insufficiency, and plaintiff appeals. We agree with the determination of Special Term.
To sustain her cause of action for breach of contract, plaintiff relies on defendant’s "Handbook for Academic Staff”, in which it is stated, "If the result of the evaluation is satisfactory, it is normal for an assistant professor to be re-employed for a second three-year period.” Despite the favorable evaluation received by plaintiff, the language of the handbook can in no way be construed as a contract binding defendant to renewal. Plaintiff was employed for the full time for which she had been hired and was paid accordingly. Defendant promised no more than that (see, O’Connor v Eastman Kodak Co., 65 NY2d 724). At the expiration of her term, plaintiff
Plaintiff’s cause of action for discrimination focuses only upon the injury she has incurred by virtue of the nonrenewal of her appointment. Plaintiff does not allege in her complaint that she was paid a lower salary than others performing similarly, that she was excluded from organizational meetings, that she was downgraded in evaluation and the like, or that she was subjected to disparate treatment in the nonrenewal of her appointment. In this regard, plaintiff’s complaint is insufficient. In Shapolsky v Shapolsky (22 AD2d 91), it was pertinently stated that "it is still essential * * * that the pleading enable the defendant to determine the nature of the plaintiff’s grievances and the relief [she] seeks in consequence of the alleged wrongs”. By this standard, plaintiff has failed to plead a cause of action for discrimination on the basis of sex.
Plaintiff’s cause of action for fraud is based on defendant’s alleged misrepresentation that plaintiff’s position was tenure tracked. This alleged fraud relates directly to plaintiff’s cause of action for breach of contract and, therefore, cannot be the predicate for a separate cause of action for fraud (see, Trust-house Forte [Garden City] Mgt. v Garden City Hotel, 106 AD2d 271, 272). Furthermore, the alleged misrepresentation is not an existing fact, but rather one of a possible future contingency, which required the consideration of many factors before it occurred (see, Chase Manhattan Bank v Perla, 65 AD2d
Order affirmed, with costs. Main, J. P., Casey, Yesawich, Jr., Levine and Harvey, JJ., concur.