Lipsky v. New York Institute of Technology

Appellate Division of the Supreme Court of New York

Lipsky v. New York Institute of Technology

69 A.D.3d 725, 893 N.Y.2d 193

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJanuary 12, 2010

StatusPublished

Cited by1 cases

This text of 69 A.D.3d 725 (Lipsky v. New York Institute of Technology) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Lipsky v. New York Institute of Technology, 69 A.D.3d 725, 893 N.Y.2d 193 (N.Y. Ct. App. 2010).

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Opinion

In 1999 the petitioner was appointed as a tenure-track, assistant professor at the respondent New York Institute of Technology (hereinafter the Institute). The terms and conditions of his employment were governed by a collective bargaining agreement (hereinafter the agreement). After a six-year probationary period, the petitioner’s tenure application was considered. After the respondent Board of Trustees of the New York Institute of Technology (hereinafter the Board) made a determination denying that application, the petitioner filed internal appeals pursuant to the terms of the agreement. As a result, the agreement was modified to extend the petitioner’s probationary period for one additional year and to provide for a reconsideration of the application. At the end of the year, the Board reconsidered the application and, again, denied it.

The petitioner commenced this CPLR article 78 proceeding seeking, inter alia, in effect, to annul the Board’s determination denying his tenure application. The petitioner alleged, among other things, that the Board, in making the determination, failed to comply with certain procedures required by the agreement, and that the determination was arbitrary and capricious. The Supreme Court denied the petition and dismissed the proceeding. We affirm.

Judicial review of a university’s determination to deny tenure to a faculty member is limited (see New York Inst, of Tech. v State Div. of Human Rights, 40 NY2d 316, 322 [1976]; Matter of Berkeley-Caines v St. John Fisher Coll., 11 AD3d 895 [2004]; Matter of Bennett v Wells Coll., 219 AD2d 352, 356 [1996]). In [726]*726reviewing such a determination, a court, which must not substitute its judgment for that of the university, must determine whether the determination was made in violation of the university’s rules, or is arbitrary and capricious {cf. Matter of Gray v Canisius Coll, of Buffalo, 76 AD2d 30, 36 [1980]).

Here, the petitioner failed to establish that the Board’s determination denying his tenure application was made in violation of an applicable rule, or is arbitrary and capricious. Although the petitioner argued that the School Personnel Committee (hereinafter the SPC), a body consulted during the consideration of the application, was not appropriately representative of the Institute’s campuses and departments, the agreement merely provides for a “recommended, as opposed to mandatory” composition of the SPC (Matter of Perinpanayagam v University at Buffalo, 39 AD3d 1220, 1222 [2007]; see Matter of Berkeley - Caines v St. John Fisher Coll., 11 AD3d at 897). In addition, although the petitioner argues that the respondents improperly amended the criteria for tenure and improperly failed to publish those criteria, under the circumstances, the petitioner, who agreed to the modification of the agreement, and who was aware of the criteria that would be considered when his tenure application was reconsidered at the end of the additional year of probation, waived these arguments (cf. Davidson v Regan Fund Mgt. Ltd., 13 AD3d 117, 117-118 [2004]).

The petitioner’s remaining contentions are without merit. Covello, J.R, Santucci, Chambers and Hall, JJ., concur.

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In 1999 the petitioner was appointed as a tenure-track, assistant professor at the respondent New York Institute of Technology (hereinafter the Institute). The terms and conditions of his employment were governed by a collective bargaining agreement (hereinafter the agreement). After a six-year probationary period, the petitioner’s tenure application was considered. After the respondent Board of Trustees of the New York Institute of Technology (hereinafter the Board) made a determination denying that application, the petitioner filed internal appeals pursuant to the terms of the agreement. As a result, the agreement was modified to extend the petitioner’s probationary period for one additional year and to provide for a reconsideration of the application. At the end of the year, the Board reconsidered the application and, again, denied it.

The petitioner commenced this CPLR article 78 proceeding seeking, inter alia, in effect, to annul the Board’s determination denying his tenure application. The petitioner alleged, among other things, that the Board, in making the determination, failed to comply with certain procedures required by the agreement, and that the determination was arbitrary and capricious. The Supreme Court denied the petition and dismissed the proceeding. We affirm.

Judicial review of a university’s determination to deny tenure to a faculty member is limited (see New York Inst, of Tech. v State Div. of Human Rights, 40 NY2d 316, 322 [1976]; Matter of Berkeley-Caines v St. John Fisher Coll., 11 AD3d 895 [2004]; Matter of Bennett v Wells Coll., 219 AD2d 352, 356 [1996]). In [726]*726reviewing such a determination, a court, which must not substitute its judgment for that of the university, must determine whether the determination was made in violation of the university’s rules, or is arbitrary and capricious {cf. Matter of Gray v Canisius Coll, of Buffalo, 76 AD2d 30, 36 [1980]).

Here, the petitioner failed to establish that the Board’s determination denying his tenure application was made in violation of an applicable rule, or is arbitrary and capricious. Although the petitioner argued that the School Personnel Committee (hereinafter the SPC), a body consulted during the consideration of the application, was not appropriately representative of the Institute’s campuses and departments, the agreement merely provides for a “recommended, as opposed to mandatory” composition of the SPC (Matter of Perinpanayagam v University at Buffalo, 39 AD3d 1220, 1222 [2007]; see Matter of Berkeley - Caines v St. John Fisher Coll., 11 AD3d at 897). In addition, although the petitioner argues that the respondents improperly amended the criteria for tenure and improperly failed to publish those criteria, under the circumstances, the petitioner, who agreed to the modification of the agreement, and who was aware of the criteria that would be considered when his tenure application was reconsidered at the end of the additional year of probation, waived these arguments (cf. Davidson v Regan Fund Mgt. Ltd., 13 AD3d 117, 117-118 [2004]).

The petitioner’s remaining contentions are without merit. Covello, J.R, Santucci, Chambers and Hall, JJ., concur.

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Bluebook (online)

69 A.D.3d 725, 893 N.Y.2d 193, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lipsky-v-new-york-institute-of-technology-nyappdiv-2010.

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