Demas v. Levitsky

tion and, in 1977, began working with teachers at the Trumansburg Elementary School in Tompkins County to improve its school lunch program and develop classroom instruction involving students in the preparation and consumption of nutritious, healthy foods. By 1988, plaintiff had a significant background in educating children about the foods of different cultures, sound nutrition for children, and the utilization of the Federal School Lunch Program as a vehicle for improving the eating habits of American children and their families.

In 1988, plaintiff was admitted to a Master’s program in the College of Human Ecology at defendant Cornell University. After writing a thesis entitled “A Framework for a Handbook of Food Study for Elementary Schools,” she received her Master’s degree in professional studies. Plaintiff worked for a year as a nutrition educator under the auspices of Cornell Cooperative Extension Services and then returned to Cornell for doctoral studies in the College of Agriculture and Life Sciences. According to plaintiff, the goal of her doctoral studies was to refine and validate, by means of scientific research and analysis, her prior work in the area of food studies and education for children and to provide her with the academic credentials and reputation to continue that work at the highest professional level. As her dissertation topic, plaintiff proposed a study, to be conducted in the Trumansburg schools, to determine whether children would be more inclined to eat healthy foods if they first learned about them, prepared them and actually ate them in the classroom and then later received the same foods as part of their school lunches.

In August 1991, plaintiff selected her graduate advisory committee of three full professors, each of whom contributed to the refinement of plaintiff’s idea. In the first half of 1993, plaintiff met on numerous occasions with the Trumansburg School Board, teachers and administrators to arrange for the implementation of her project and to schedule operational details. During the 1993-1994 school year, plaintiff spent over 100 days at the Trumansburg Elementary School conducting research with the help and cooperation of the school staff, parents and volunteers. She also did actual teaching and oversaw the food consumption measurements, which were carried out by volunteers whom she had recruited and trained. In June 1994, plaintiff received national awards for her work at Trumansburg from the Society for Nutrition Education and the United States Department of Agriculture (hereinafter USDA), which encouraged her to apply for a grant in order to continue her research. Plaintiff began writing her dissertation in July 1994,

with the intention that her work be completed in time to obtain her degree in January 1995, largely because her financial situation had become dire and she needed to move from unpaid research to a paid position. Viewing a USDA grant as an important source of funds but having been advised that every grant application required a senior faculty sponsor, plaintiff turned to defendant David Levitsky, a professor of nutritional sciences at Cornell who had previously shown great interest in her work and eventually became a member of her graduate advisory committee, to serve as principal investigator on the grant proposal. It was plaintiffs clear understanding, however, that she would be named as coprincipal investigator.

Throughout the fall of 1994, plaintiff attended numerous meetings in furtherance of the application and developed and planned the infrastructure of the study. However, because she was also writing her dissertation and had no source of income, plaintiff asked Levitsky to arrange for her to be compensated for her work on the grant. Levitsky refused, characterizing her work on the proposal as an investment. In order to permit her to concentrate on her dissertation, plaintiff provided Levitsky with her contacts at the USDA so that he could explore further sources of funding. Levitsky in turn agreed to submit the grant application in time to have the funds available by January 1995 so that plaintiff could commence her research as soon as her dissertation was completed. In January 1995, plaintiff completed her copyrighted dissertation. She was thereafter awarded her Ph.D. in education and hired by Cornell as a research associate. It was subsequently discovered, however, that Levitsky had not submitted the grant proposal until January 5, 1995, which caused plaintiff great embarrassment because people who had been hired to participate in the study could not be paid.

Then, in February 1995, plaintiff discovered that the grant application not only failed to name her as coprincipal investigator, it did not even mention her by name, and salaries were sought only for Levitsky as project leader and for a “research associate.” Moreover, the application allegedly plagiarized and misappropriated extensive portions of plaintiffs dissertation, and Levitsky took full credit for plaintiffs research during class lectures and professional and public speaking engagements, and falsely claimed that he had won awards for the Trumansburg research. Consequently, plaintiff lodged a complaint with Cornell’s ombudsman, who issued a report in April 1995 substantiating her claims that Levitsky had failed to properly credit her contributions. Because he was unable to

determine how much of the research was attributable to plaintiff’s theory and methodology and how much was attributable to Levitsky’s quantitative expertise, however, the ombudsman stopped short of concluding that Levitsky had committed any serious infractions, but recognized that his behavior was “suggestive of a pattern.”

Shortly thereafter, in May 1995, plaintiff’s employment on the grant study was terminated because Levitsky supposedly received numerous complaints about her behavior. Plaintiff, however, claims that she was fired because she outlasted her usefulness, as Levitsky had by that time extracted all the information he could about her technique, methodology and research protocol. In order to defuse the situation, the ombudsman negotiated a written agreement between the two which was executed in September 1995. The agreement required that plaintiff be listed as a consultant in all published reports and that Levitsky properly refer to plaintiffs work in all published works and public presentations. It further required that Levitsky write a letter of apology to the USDA acknowledging plaintiffs contributions, and he was to promptly and properly edit drafts that plaintiff prepared for publication.

Levitsky sent the required letter but also sent a preemptive e-mail warning the USDA that it would be receiving a “strange letter” that had been written to placate a disgruntled employee who had been dismissed because she was difficult to work with. Additionally, although he was supposed to assist in the publication of articles authored by plaintiff, Levitsky wrote to an academic journal in May 1996 stating that any articles submitted by plaintiff should name him as coauthor. As a result, the journal refused to publish the article until the charges of “intellectual dishonesty” were resolved. Ultimately, in February 1997, Cornell informed the journal that Levitsky was withdrawing all claims to the manuscript’s authorship.

In October 1995, plaintiff filed a grievance with Cornell asserting that Levitsky had violated Cornell’s policies on academic misconduct. In May 1996, well after the 120-day period prescribed for such investigation, Peter Stein, Cornell’s Dean of Faculty, issued a report stating that a committee (hereinafter referred to as the Coffman Committee) should investigate whether Levitsky failed to properly acknowledge plaintiffs contributions to the research. Notably, however, he concluded that Levitsky did not misappropriate plaintiffs research protocol and methodology, stating that “Levitsky’s preemption of [plaintiffs] ideas * * * lies within the boundary of permissible academic entrepreneurial behavior” and did not warrant further investigation.

Thereafter, the Coffman Committee reported that Levitsky had repeatedly failed to acknowledge plaintiffs contributions and disagreed with Stein’s assessment of the situation, concluding that the “preemption” of ideas was inappropriate behavior for Cornell faculty. In October 1996, however, Cornell issued a final report finding that, although Levitsky was “insensitive and careless” in failing to attribute the idea for the research to plaintiff and a general pattern of lack of attribution could be constructed, none of the actions rose to the level of plagiarism or misconduct. Curiously, although Levitsky was cleared of all wrongdoing, he was required to submit all future grant proposals, papers and reports to Cornell to ensure that plaintiffs work was properly attributed, and he was further ordered to acknowledge plaintiff in all public and private conversations about the research.

Thereafter, the original members of plaintiffs graduate advisory committee, professors T. Colin Campbell, Joan Egner and Robert Ascher, wrote a letter to Cornell criticizing its investigation. The letter noted that as the committee charged with supervising plaintiffs dissertation, it was intimately familiar with plaintiffs ideas and research and, therefore, was well aware that Levitsky had stolen plaintiffs ideas and intellectual property. In December 1996, the USDA terminated the grant, finding that no progress had been made in the study and that periodic reports filed by Levitsky lacked detail or specificity and, in fact, evidenced incompetence. Thereafter, a local newspaper apparently printed a story about the failed grant and the accusations that plaintiff and her graduate advisory committee had levied against Levitsky. In response, in March 1998, Levitsky sent an e-mail to various persons and media outlets denying that he stole plaintiffs research protocol and methodology and claiming that the grant project failed because plaintiff and her graduate advisory committee approached the USDA and actively lobbied for its termination.

In March 1998, Elsie Popkin, a member of the President’s Council of Cornell Women, an alumni organization that was considering whether it should lend its support to plaintiff, attended a March 28, 1998 meeting where Don Randel, Cornell’s Provost, addressed the controversy. According to Popkin, Randel stated that there was no evidence supporting plaintiffs allegations, that plaintiffs research protocol and methodology were not original and that her doctoral degree was suspect as she supposedly failed to properly attribute her work. Based upon this information, the women’s group gave up interest in investigating plaintiffs allegations of wrongdoing.

Plaintiff commenced this action on February 8, 1999 seeking to recover damages flowing from the destruction of her reputation in the academic community and the discrediting of her research hypotheses and methodology. Her complaint alleges causes of action against Levitsky, Cornell or both, sounding in misappropriation, fraud, breach of contract, breach of fiduciary duty, negligence, tortious interference with prospective economic advantage, defamation and intentional infliction of emotional distress. Cornell made a preanswer motion to dismiss the complaint primarily on statute of limitations grounds and Levitsky cross-moved for summary judgment dismissing the complaint against him on a number of grounds. Supreme Court denied both motions in all respects and defendants appeal.

Turning first to Levitsky’s appeal, we find merit to the claim that Supreme Court erred in refusing to dismiss the cause of action for tortious interference with prospective economic advantage (ninth cause of action) based on the contention that plaintiff was deprived of professional opportunities because of the alleged injury to her professional reputation. In view of the fact that the claimed damage is measured by harm to plaintiffs reputation, the cause of action sounds in defamation (see, Ramsay v Bassett Hosp., 113 AD2d 149 , 151-152, lv dismissed, 67 NY2d 608 ; Kartiganer Assoc. v Town of Newburgh, 57 AD2d 857 ), which is already alleged in the tenth cause of action and seeks to recover for the very same injury (see, Dobies v Brefka, 273 AD2d 776 , 778, lv dismissed 95 NY2d 931 ; Matter of Entertainment Partners Group v Davis, 198 AD2d 63 , 64).

In addition, we agree with Levitsky that the first (misappropriation), seventh (negligence), ninth (tortious interference with prospective economic advantage), tenth (defamation) and twelfth (intentional infliction of emotional distress) causes of action against him are time barred. The first, seventh and ninth (to the extent that New York recognizes a cause of action for tortious interference with prospective economic advantage [see, Kronos Inc. v AVX Corp., 81 NY2d 90 ]) causes of action are governed by the three-year statute of limitations of CPLR 214 (4) and (5). The tenth and twelfth causes of action are governed by the one-year statute of limitations of CPLR 215 (3) (see, Campbell v Chabot, 189 AD2d 746 , 747). There can be no question that substantially all of the acts alleged in support of these causes of action took place during 1994 and 1995.

Disputing none of that, plaintiff contends that the wrongful conduct underlying substantially all of her causes of action against Levitsky, including the ones at issue here, is “[his] tak

cause of action) and negligence (eighth cause of action) should have been dismissed as untimely. Although couched in terms of “contract” and “tort” to avoid the applicable statutes of limitation, the claims are directed at Cornell’s academic and administrative decision to reject plaintiffs administrative charges against Levitsky, which may be reviewed only in a CPLR article 78 proceeding (see, Maas v Cornell Univ., 94 NY2d 87 ; Diehl v St. John Fisher Coll., 278 AD2d 816 , lv denied 96 NY2d 707 ; Risley v Rubin, 272 AD2d 198 , lv denied 96 NY2d 701 ; Holm v Ithaca Coll., 256 AD2d 986 , 988, lv denied 93 NY2d 804 ; Gertler v Goodgold, 107 AD2d 481 , 487, affd 66 NY2d 946 ). Inasmuch as plaintiff failed to challenge the determination within four months (see, CPLR 217), the causes of action are time barred (see, Diehl v St. John Fisher Coll., supra; Gertler v Goodgold, supra at 487) and should have been dismissed.

Plaintiffs claim for intentional infliction of emotional distress (fourteenth cause of action) is premised upon an assertion that she has suffered severe emotional distress as a result of Randel’s allegedly defamatory statements. Significantly, a cause of action alleging intentional infliction of emotional distress should be dismissed “where the conduct complained of falls well within the ambit of other traditional tort liability” (Fischer v Maloney, 43 NY2d 553 , 558). Here, the conduct alleged in the subject cause of action falls squarely within the scope of plaintiffs defamation claim and, therefore, should have been dismissed (see, Dec v Auburn Enlarged School Dist., 249 AD2d 907 , 908; Butler v Delaware Otsego Corp., 203 AD2d 783 , 784-785; Sweeney v Prisoners’ Legal Servs. of N.Y., 146 AD2d 1 , 7, lv dismissed 74 NY2d 842 ; Rozanski v Fitch, 113 AD2d 1010 ). Additionally, the facts alleged in the complaint, even if true, are insufficient to state a cause of action for intentional infliction of emotional distress, which requires “extreme and outrageous conduct [so transcending] the bounds of decency as to be regarded as atrocious and intolerable in a civilized society” (Freihofer v Hearst Corp., 65 NY2d 135 , 143).

Cornell is also correct in its assertion that it cannot be held vicariously liable for Levitsky’s actions because none of the complained of conduct was committed by Levitsky within the scope of his employment with Cornell (see, Riviello v Waldron,