The parties have cross-moved for summary judgment in this action. The claim
arises from a contract entered into by claimant and Baruch College, a senior
college within the City University of New York. Claimant was employed with the
College's Continuing Studies Program (CAPS), and he alleges that defendant
failed to make complete payment due under the contract for the year beginning
July 1, 1999 and ending June 30, 2000. According to his calculations, he was
owed the sum of $31,404.91 for this period. Claimant also asserts that he is
entitled to costs and other benefits pursuant to Labor Law §198.
In its answer, defendant acknowledged that claimant performed work for the CAPS
program during the period mentioned, as well as for several years prior to those
dates, but asserted that claimant had been fully paid for his work. Defendant
also asserted a counterclaim, alleging that claimant had been overpaid by the
amount of $7,029.62. Under the contract, claimant was entitled to 50% of the net
profit gain on a Microsoft Certification Program. Defendant alleges that
claimant relied on improper information when projecting the amount of money he
would be owed under this part of the agreement for 1999-2000. Consequently,
defendant issued to claimant a check for $10,000.00, in anticipation that the
net profit gain would be at least double that sum. In fact, defendant asserts,
the actual net profit gain was $4,140.75, which would result in a share of
$2,070.38 for claimant and leave a $7,029.62 balance from the check that should
be repaid to defendant.
The relevant contract provision is contained in Article IV, which reads in its
entirety as follows:
D) This payment will be paid annually by August 15, 2000 following the end of
the fiscal year on June 30, 2000.
In his affidavit, claimant states that he worked for defendant from the period
of November 1, 1977 to November 10, 2000.
With respect to the last year of his employment, he entered into a contract with
the College for "the management of a Microsoft Certification program and the
supervision of all computer related programs laboratory personnel" (Flanzig
affidavit, Exhibit D). In addition to his 50% share of the net profit from the
certification program, claimant was to receive a base pay of $1,000.00 a week,
payable every two weeks. When he left his employment, in November 2000, he was
given by defendant a report comprised of fiscal statements for the 1999-2000
period and a check for $10,000.00, which he considered to be a partial payment
of his share, with additional payment to be received in December (Nacht
affidavit, ¶ 5, Exhibit D). Claimant states that, according to his
accountant, the financial statements show that claimant was entitled to payment
of $51,775.66 (id.
, ¶ 4)
Claimant's expert accountant, Paul Touhy, confirms in his affidavit that he
reached this conclusion after a review of the following documents: 1) the
contract agreement between claimant and Baruch College (Flanzig affidavit,
Exhibit D); 2) a cash basis year to date statement for 7/1/99 through 6/30/00
(id.); 3) a year to date cash basis financial report for 7/1/98 through
6/30/99 (id.); and 4) a "Microsoft Certification Income Statement for the
fiscal years of 2000 and 1999. (id.). Based on his review, Mr. Touhy
calculated that there was an increase in net profit and gain from the base year
of 1998-1999 to the year of 1999-2000 in the amount of $103,551.32, which would
entitle claimant to the sum of $51,775.66 (Touhy affidavit ¶ 2). He does
not describe the precise method by which he arrives at this conclusion.
John R. Dugan, Jr., Esq., Dean of Faculty and Staff Relations and Counsel to
the President of Baruch College, states in his affidavit that the disagreement
between the parties can be traced to their disagreement "over which financial
records should properly be used to make" the financial calculation of claimant's
incentive payment for the period from July 1, 1999 through June 30, 2000 (Dugan
affidavit, ¶ 4). He indicates that the calculation should have been based
only on the "Microsoft Certification Income Statement FY00 and FY99" which he
had given to claimant's prior counsel, in order to explain the College's
calculation of the amount owed to claimant under the contract. This record, he
states, is based not on the "cash basis" referenced by claimant, but on the
College's "official financial records" which are maintained by the College
controller and which "cover all College operations including those of CAPS"
¶ 5). According to the College's calculations, the net income increase was
$4,140.75, making claimant's share $2,070.38. He also explains that the
$10,000.00 check given to claimant in November 2000 was a payment made in
recognition that the contract called for an incentive payment. The amount of
that check appears to have been an estimate, as Mr. Dugan states that the
official College records for the year ending June 30, 2000 had not been closed
at the time that claimant resigned.
Mr. Dugan also argues that the claim fails because the agreement on which it is
based does not conform to the requirements of Education Law § 6218, because
the party who signed for the college, Bernard E. Lynch, then serving as Interim
Director of CAPS, did not have authority to enter into an enforceable contract
with the claimant and because the contract was never approved by the board of
trustees of the City University of New York, as required by the statute.
Defendant has also provided the affidavit of Paul Russo, Associate Director of
the CAPS program. Prior to July 1, 2000 he had responsibility for information
technology programs other than the Microsoft Certification Program. In that
capacity, he was familiar with the "cash basis" financial reports on which
claimant and his accountant rely in reaching their calculation of the amounts
owed to claimant. Despite their name, he states that such a report "does not
reflect ‘cash' in any sense of the word" (Russo affidavit, ¶3).
Instead, it was a document created solely from the registration slips completed
by students who intended to enroll in a CAPS course. At best, therefore, the
information indicates the maximum revenue that the program might expect to
collect if all of those students actually enrolled and paid the full fees for
such courses. Records of actual tuition receipts were maintained by the CAPS
Bursar and, ultimately, by the Controller of the college.
It is on the basis of this evidence that the parties have cross-moved for
summary judgment on both the claim and the counterclaim.
Summary judgment is a drastic remedy that should only be granted when there are
no outstanding issues of fact (Redcross v Aetna Cas. & Sur. Co., 260
AD2d 908, 913-914 [3d Dept 1999], citing to Winegrad v New York Univ.
Med. Ctr., 64 NY2d 851, 853 ). The Court's task is issue finding, not
issue determination, and before judgment can be granted it must be clearly
ascertained that there are no triable issues of fact outstanding (Matter of
Hannah UU, 300 AD2d 942, 943 [3d Dept 2002], citing to Matter of
Suffolk County Dept. of Soc. Servs. v James M., 83 NY2d 178, 182  and
Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 ).
The Court's function in deciding a motion for summary judgment is to
determine if any issues of fact exist. In order to do this, the Court must
examine the proof in a light most favorable to the party opposing the motion
(Iwaszkiewicz v Callanan Indus. Inc., 258 AD2d 776 [3d Dept 1999]). The
moving party must make a prima facie showing of entitlement to judgment as a
matter of law, proffering sufficient evidence, in admissible form, to
demonstrate the absence of any material issues of fact (Winegrad v New York
Univ. Med. Ctr., 64 NY2d 851, 853 ; Zuckerman v City of New
York, 49 NY2d 557, 562 ; Sillman v Twentieth Century-Fox Film
Corp., 3 NY2d 395, 404 ).
In the instant case, neither party has established that it is entitled to
judgment in its favor as a matter of law. Claimant has presented the opinion of
an expert supporting the conclusion that he is entitled to a larger sum, but
that expert's conclusion is merely asserted, not explained. Although the raw
material on which that opinion is based was presented to the Court, it is
difficult to follow the process, reasoning, or calculations made to determine if
the result reached is accurate or presents a reasonable conclusion. Similarly,
defendant merely points to one of those documents, which it claims is based on
official records that are not before the Court, without providing any
explanation of how the figures on that document were developed. The quite
different, and mutually exclusive, ways in which the parties calculate the net
profit gain also raises questions as to their original understanding of the
contract. Certainly neither claimant nor defendant has referred to the terms of
the contract to support the result of their calculations or to critique the
outcome reached by the other party.
In essence, and unusually for a contract action, the Court is being asked to
decide a matter of credibility. Credibility issues cannot be resolved on a
motion for summary judgment (Goff v Clarke, 302 AD2d 725, 727 [3d Dept
2003]; see also, Curanovic v New York Cent. Mut. Fire Ins. Co.,
307 AD2d 435 [3d Dept 2003])
Claimant's motion is denied, and defendant's cross-motion is