Miller v New York Univ., 2011 NY Slip Op 05574 [85 AD3d 670]

June 28, 2011

Appellate Division, First Department

— [*1]

Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York (Ricki E. Roer of counsel), for appellants.

Kraus & Zuchlewski LLP, New York (Robert D. Kraus of counsel), for respondent.

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered September 28, 2010, which, to the extent appealed from as limited by the briefs, denied defendants New York University’s and NYU Hospitals Center’s motion for summary judgment dismissing the complaint as against them, unanimously affirmed, with costs.

Defendants failed to demonstrate that the reassignment of plaintiff from the position of sole chief financial officer (CFO) of NYU Hospitals Center (NYUHC) to one of three vice-presidents of finance did not constitute a termination from the CFO position, in violation of the parties’ retention agreement, as memorialized in the “Transition Stabilization Plan.” The record shows that plaintiff’s position as finance vice-president was materially different from his position as CFO ( see Rudman v Cowles Communications , 30 NY2d 1, 10 [1972]). After his reassignment, plaintiff was no longer considered part of NYUHC’s senior leadership team, and he had lost his CFO responsibilities and retained only part of his responsibility for oversight of the Hospital for Joint Diseases and the Clinical Cancer Center. While as CFO plaintiff had significant responsibility for policy making and management, as one of three vice-presidents of finance he appeared to have decreased responsibility, and many of his former responsibilities as CFO were assumed by other [*2] finance vice-presidents or by the senior vice-president of financial affairs.

We have considered defendants’ argument that this is a case of constructive discharge and find it without merit. Concur—Mazzarelli, J.P., Sweeny, Freedman, Manzanet-Daniels and RomÁn, JJ..