New York State Court of Claims

New York State Court of Claims

BASHIST v. CITY UNIVERSITY OF NEW YORK, #2006-016-026, Claim No. 104153


Synopsis


Claim alleging that professor at Brooklyn College was inadequately compensated and that the college improperly handled his claim for unemployment insurance benefits was dismissed.

Case Information

UID:
2006-016-026
Claimant(s):
BART BASHIST
Claimant short name:
BASHIST
Footnote (claimant name) :

Defendant(s):
CITY UNIVERSITY OF NEW YORK
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
104153
Motion number(s):

Cross-motion number(s):

Judge:
Alan C. Marin
Claimant's attorney:
Bart Bashist, Pro Se
Defendant's attorney:
Eliot Spitzer, Attorney Generalby: Gail Pierce-Siponen, AAG
Third-party defendant's attorney:

Signature date:
March 16, 2006
City:
New York
Comments:

Official citation:

Appellate results:

See also (multicaptioned case)



Decision
This is the decision following the trial of the claim of Bart Bashist arising from his employment at Brooklyn College of the City University of New York. Professor Bashist alleges a considerable number of causes of action. They essentially arise out of: i) the expectation near the close of the spring semester of 2000 as to what his teaching course load would be in the coming fall semester; and ii) the compensation he was entitled to for the 10 credits he actually taught that fall.[1]


(i)
Subdivision 10 of section 590 of the Labor Law prohibits the payment of unemployment insurance benefits to an academic professional during the summer break if he or she has a "reasonable assurance" of employment "in such capacity" for the fall academic term. For over ten years, Bashist had been an adjunct professor in the Sociology Department. Being an adjunct meant that he was employed part-time, and his course load was more vulnerable to budgetary problems (cl exh 4) and reliant on the number of students who signed up for particular course offerings.
Professor Bashist contends that the defendant City University, without a good faith basis to do so, contested his application for unemployment insurance for the summer months of 2000. In a decision by an administrative law judge, dated November 28, 2000, he was granted benefits for such period, overruling an initial determination of denial (def exh C).[2]

Bashist alleges that the University failed to provide necessary information for the unemployment insurance hearing and that there was an adjournment of at least one hearing for which he blames defendant. The professor did not obtain and submit a transcript of his administrative proceedings. Claimant supplies no precedent - - and none could be located - - for any valid cause of action based upon an employer's handling of a claim for unemployment insurance benefits, and insofar as his claim in this Court is grounded on same, it cannot succeed.


(ii)
In the fall semester, Professor Bashist taught three courses, two of them for three credits and one for four credits. By teaching ten credits in a semester, claimant had exceeded the nine-credit maximum for those holding adjunct positions. He was paid for all ten credits at the rate of compensation to which adjunct professors were entitled. Bashist seeks compensation for the difference between that and the amount a full-time faculty member would be paid for such work.
This is a claim in contract - - the contract is the collective bargaining agreement. But unusually for a party suing on a contract, the party here did not offer the contract into evidence:

THE COURT: [T]hat pay rate schedule . . . Do you have the schedule?

MR. BASHIST: I do not have it.

At trial, claimant said, "the amount I have is $14,546.80 with interest thereupon," but that apparently applied to his immediately preceding testimony that "I was paid for six credits at the part-time rate instead of the ten credits at the full-time rate." Later on cross-examination, claimant agreed that he was seeking the difference between part-time and full-time compensation for ten teaching credits. There was no attempt to mislead: Professor Bashist had been referring to the considerable time it took the City University to cut the check for the final four credits. See defendant's exhibit G. In any event, claimant has not offered a summary figure of his contract damages, let alone how he would derive the amount from the terms of the contract.
For that matter, without
the collective bargaining agreement, we do not know whether there was a contractual provision that supports claimant's position as to what compensation must be paid when an adjunct professor exceeds the nine-credit semester threshold. Nor did claimant supply any testamentary or documentary evidence thereon.
Defendant offered into evidence a portion of Article 15 of the collective bargaining agreement (def exhs D & E). Article 15.2, entitled Workload for the Part-Time Members of the Instructional Staff, provides in relevant part as follows:
A person appointed to an Adjunct title is not a full-time employee of the City University of New York. . . . Adjunct lecturers or Adjuncts in other titles, excluding Graduate Assistants, shall not be assigned a total of more than nine (9) classroom contact hours during a semester in one unit of the City University of New York . . . [Id.]

The Deputy Chair of the Sociology Chair had on August 29, 2000 written to the college's personnel department requesting a "waiver of the contractual limitation" on hours for Bashist and another instructor for the fall semester (cl exh 1). On March 20, 2001, claimant was asked in writing by his collective bargaining representative to waive any such rights he might have under the contract, but claimant would not sign the attached waiver (def exh A). He did sign two separate Workload Reporting Forms for that semester (def exhs D & E). These forms had the relevant portion of Article 15 reproduced on the top and above the signature was a statement that the signer agreed to abide by any contractual limitations. The forms listed the courses Professor Bashist was teaching, one form set out the two three-credit courses and the other, the one course of four credits (def exhs D and E, respectively). Obviously neither, on its face, exceeded nine credits, but they were both dated September 5, 2000.

Another hurdle claimant has not surmounted is defendant's Eighth Affirmative Defense, namely, that the collective bargaining agreement requires arbitration of such a matter.[3]
The burden is on claimant to make his case. Bashist made no argument that he, as a part-time professor, was not subject to arbitration or that his complaint was of a kind that would not be so covered.[4]
In view of the foregoing, claimant's cause(s) of action based on contract cannot succeed.
***
As to the remaining causes of action, Professor Bashist advanced some argument as to each of the fourteen asserted in his pleadings. Except for the final one (see footnote 1), they derive from either the aforementioned unemployment insurance issue for the summer of 2000 or from the disputed compensation for the fall semester. These causes of action are a miscellany of items offered without support in law or on the record. For example, Bashist, who has received a number of awards for his teaching, claimed he was defamed, but neither pled the specifics as required by CPLR 3016(a), nor at trial offered any facts that could arguably comprehend it.

As to the negligent infliction of emotional injury, Professor Bashist did not make the requisite showing that defendant had engaged in extreme, outrageous and intolerable conduct.
Wilson v City of New York, 294 AD2d 290, 295, 743 NYS2d 30, 34 (1st Dept 2002). Even assuming that, as a general matter, a cause of action for intentional infliction of emotional injury could lie against the City University of New York,[5] claimant has failed to supply evidence that would satisfy the comparably exacting standard for this tort. Howell v New York Post Co., Inc., 81 NY2d 115, 121, 596 NYS2d 350, 353 (1993).
***
For the reasons stated above, the claim of Bart Bashist (claim no. 104153) is dismissed.

LET JUDGMENT BE ENTERED ACCORDINGLY.

March 16, 2006
New York, New York

HON. ALAN C. MARIN
Judge of the Court of Claims




[1] There was a passing reference on the record to claimant's fourteenth and final cause of action in his claim that sought damages arising from the college's acts or omissions relating to the fall 1999 semester.
[2] The Labor Law §620 et seq. sets out the procedure for the review of an initial determination of a claim for benefits: a hearing before an administrative law judge, which can be reviewed by the Unemployment Insurance Appeal Board and then by the Third Department of the Appellate Division.
[3] Defendant's Third Affirmative Defense was that claimant failed to exhaust his administrative remedies.
[4] For example, that the action by the employer was unconstitutional, ultra vires or that any effort to arbitrate would be futile. Watergate II Apartments v Buffalo Sewer Authority, 46 NY2d 52, 412 NYS2d 821 (1978).
[5] See Brown v State of New York, 125 AD2d 750, 509 NYS2d 169 (3d Dept 1986).