        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

596
CA 14-01450
PRESENT: SCUDDER, P.J., CENTRA, PERADOTTO, SCONIERS, AND VALENTINO, JJ.


ROBERT GERRISH, PLAINTIFF-APPELLANT,

                    V                              MEMORANDUM AND ORDER

STATE UNIVERSITY OF NEW YORK AT BUFFALO, ET AL.,
DEFENDANTS,
UB FOUNDATION SERVICES, INC., STEVEN R. GILL,
FRANK SCANNAPIECO AND MIRA EDGERTON,
DEFENDANTS-RESPONDENTS.


HOUSH LAW OFFICES, PLLC, BUFFALO (FRANK HOUSH OF COUNSEL), FOR
PLAINTIFF-APPELLANT.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (FRANK BRADY OF
COUNSEL), FOR DEFENDANTS-RESPONDENTS STEVEN R. GILL, FRANK SCANNAPIECO
AND MIRA EDGERTON.

HODGSON RUSS LLP, BUFFALO (BENJAMIN M. ZUFFRANIERI, JR., OF COUNSEL),
FOR DEFENDANT-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 of defendants State University of New
York at Buffalo, Steven R. Gill, Frank Scannapieco and Mira Edgerton
and of defendants University at Buffalo, Foundation, Inc. and UB
Foundation Services, Inc. to dismiss plaintiff’s complaint against
them without leave to replead.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff, a student who was terminated from a
graduate program at defendant State University of New York at Buffalo
(University), sued the University, three individual professors
(University defendants) and three institutional foundations through
which the professors were employed or through which their employment
was administered, asserting claims for breach of contract in a single
cause of action. Supreme Court properly granted the motions of the
University defendants and defendants University at Buffalo,
Foundation, Inc. and UB Foundation Services, Inc. (Foundation
defendants) to dismiss the complaint against them.

     Plaintiff contends that the court erred in granting the motions
by assuming facts outside the record or, in the alternative, that the
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                                                         CA 14-01450

court, upon granting the motions, erred in dismissing the complaint
instead of granting his request for leave to replead. We reject those
contentions. “In determining a CPLR 3211 motion, . . . the criterion
is whether the proponent of the pleading has a cause of action, not
whether he has stated one . . . The court may also consider affidavits
and other evidentiary material to establish conclusively that
plaintiff has no cause of action . . . Any facts in the complaint and
submissions in opposition to the motion to dismiss are accepted as
true” (Mantione v Crazy Jakes, Inc., 101 AD3d 1719, 1720 [internal
quotation marks omitted]). “ ‘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 dismiss for
failure to state a cause of action’ ” (Olszewski v Waters of Orchard
Park, 303 AD2d 995, 995). We conclude that the court did not err in
considering the decision and order of a court of coordinate
jurisdiction determining that another professor was an employee of the
University although a foundation at the University funded that
professor’s research. We further conclude that the court did not err
in considering a letter ruling by the State Department of 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 an institutional 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 breach of contract against the moving defendants,
with the exception of the University. With respect to the Foundation
defendants, we conclude that plaintiff failed to allege a contract
with them or that they breached it. With respect to the individual
professors, we conclude that the claim for breach of contract against
them sounds in educational malpractice, which is not a cognizable
cause of action in New York (see Alligood v County of Erie, 299 AD2d
840, 840-841). With respect to the University, although there is an
implied contract between a student and the educational institution to
which the student is admitted (see Matter of Carr v St. John’s Univ.,
N.Y., 17 AD2d 632, 633, affd 12 NY2d 802; Prusack v State of New York,
117 AD2d 729, 730), plaintiff seeks damages against a subsidiary of
the State of New York, and thus his claim for breach of contract
against the University is properly brought in the Court of Claims.
The court therefore properly granted that part of the motion of the
University defendants to dismiss the complaint against the University
for lack of jurisdiction (see Sinhogar v Parry, 53 NY2d 424, 431; see
e.g. Baldridge v State of New York, 293 AD2d 941, 942, lv denied 98
NY2d 608).

     Finally, we conclude that the court properly denied plaintiff’s
request for leave to replead. The court lacked jurisdiction over the
breach of contract claim against the University, the claim for breach
of contract asserted against the other moving defendants lacked merit,
and plaintiff submitted no proposed amendments to correct the pleading
deficiencies (cf. Janssen v Incorporated Vil. of Rockville Ctr., 59
AD3d 15, 27-28).
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                                          CA 14-01450




Entered:   June 19, 2015         Frances E. Cafarell
                                 Clerk of the Court
