Lluberes et al v. City of Troy et al

Filing 76

MEMORANDUM-DECISION and ORDER granting in part and denying in part 60 Motion for Summary Judgment; denying 62 Motion for Summary Judgment. ORDERED that plaintiffs' 62 motion for summary judgment is DENIED in its entirety. It is further ORDERED that defendants' 60 motion for summary judgment is GRANTED in part and DENIED in part. ORDERED that all claims against Anderson, Castle, Dean, Hoffman, Pirro, Negron, Evangelista, Salvatore, Sarris, Tutunjian, Troy PD, John and Jane Doe defendants, and individual defendants in their official capacities be dismissed from this action. ORDERED that Gillette's trial will proceed as scheduled on 4/28/2014 at 9:30 a.m. Upon the conclusion of that trial, the Court will set a dat e for Llubere's trial. Signed by Magistrate Judge Christian F. Hummel on 3/21/2014. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C, # 4 Exhibit D, # 5 Exhibit E, # 6 Exhibit F, # 7 Exhibit G, # 8 Exhibit H, # 9 Exhibit I, # 10 Exhibit J, # 11 Exhibit K, # 12 Exhibit L, # 13 Exhibit M, # 14 Exhibit N, # 15 Exhibit O) (dpk)

Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

2004 WL 2202594
Only the Westlaw citation is currently available.
United States District Court,
W.D. New York.
Philip YIP, Plaintiff,
v.
BOARD OF TRUSTEES OF THE STATE
UNIVERSITY OF NEW YORK, et al., Defendants.

court entitled Philip Yip v. Clement Ip, et al., No. 84–CV–
1403C (dismissed by order dated July 9, 1992, for lack of
subject matter jurisdiction), and in a prior action in the New
York State Court of Claims entitled Philip Yip v. State of
New York, Claim No. 68889 (dismissed at close of trial by
order dated October 30, 1986 for failure to prove wrongful
dismissal), incorporated herein by reference. 1
The central facts of the complaint relate to plaintiff's dismissal
from an academic program at the Roswell Park Cancer

Opinion

Institute 2 leading to the degree of PhD in Physiology from
the State University of New York (“SUNY”). Plaintiff began
the PhD program in January of 1978 (Item 1, ¶ 2). He alleges
that in 1980 he learned that his PhD advisor, Dr. Clement
Ip, and Ip's wife, Dr. Margot Ip (also a Roswell researcher),
had improperly appropriated the plaintiff's research (id. at
¶ 11). He further alleges that Dr. Edwin Mirand, Dean of
the Roswell Park academic program, expelled plaintiff from
the program by memorandum dated December 3, 1981, in
retaliation for his complaints about the Ips' actions (id . at ¶

CURTIN, J.

41 & Exs. 36, 37). 3 The memorandum stated:

No. 03–CV–00959C(SR).

|

Sept. 29, 2004.

Attorneys and Law Firms
Philip Yip, Union, NJ, pro se.
Peter B. Sullivan, New York State Attorney General, Buffalo,
NY, for Defendants.

*1 This action was commenced by plaintiff pro se on
August 22, 2003 by the filing of a 96–page complaint with
373 paragraphs and 77 attached exhibits. The complaint was
originally filed in the United States District Court for the
District of New Jersey, and was transferred to this court
pursuant to 28 U.S.C. § 1406(a) by order of United States
Magistrate Judge Patty Schwartz, dated December 8, 2003.
Defendants move pursuant to Rule 12(b)(6) of the Federal
Rules of Civil Procedure for an order dismissing this action
as time-barred and, with respect to certain of the claims, for
failure to state a claim upon which relief can be granted (Item
21). Alternatively, defendants seek an order pursuant to Rule
12(e) compelling plaintiff to file and serve a more definite
statement with respect to any claim not dismissed. Plaintiff
has responded by “cross-motion” in opposition to defendants'
motion (Item 30).
For the reasons that follow, defendants' motion is granted, and
the complaint is dismissed.

BACKGROUND
The following factual summary of is derived from the
allegations in plaintiff's complaint, the exhibits annexed
thereto, and certain matters of record in a prior action in this

[Y]ou have voluntarily withdrawn from the Division as of
July 1, 1981, and have not applied for reinstatement.
Therefore, we will not allow you to re-enter the Roswell
Park Division for academic reasons, documented by
probation letters issued on January 26, 1979 and January
13, 1980, and based upon your voluntary withdrawal
from the program.
(Ex. 37.)
On July 25, 1983, the plaintiff applied for readmission (id.
at ¶ 48 & Exs. 40, 41). By letter dated September 13, 1983,
Dr. Mirand advised plaintiff that he would be admitted into
a program leading to a terminal Master of Science Degree,
under certain conditions, and that this offer would be open
only until September 20, 1983 (Ex. 43). Plaintiff responded
on September 15, 1983, requesting additional time to consider
the offer (Ex. 46). By letter of September 21, 1983, Dr.
Mirand advised the plaintiff that his time to accept the offer
was extended to October 1, 1983 (Ex. 47).
*2 The plaintiff never accepted the offer. Instead, he
retained legal counsel, who filed an action in January 1984 in
the New York State Court of Claims against the State of New
York, seeking money damages based on plaintiff's expulsion
from the Roswell Park program (Item 1, ¶¶ 65, 66). On

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Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

December 4, 1984, while the state court action was pending,
plaintiff filed an action in this court against Drs. Clement
Ip and Margot Ip for money damages based on claims of
common law copyright infringement, misappropriation of
research materials, and unfair competition.
By letter of May 6, 1985, plaintiff once again applied for
readmission to the PhD program at Roswell. This letter
was responded to by Carolyn J. Pasley, Associate Counsel
for SUNY, who advised the plaintiff that Dr. Mirand's
correspondence of September 13 and 21, 1983 “constitutes
the State University's final determination in this matter” (Ex.
52).

As mentioned, plaintiff filed this action on August 22,
2003. Named as defendants are the Board of Trustees
of SUNY; Thomas Eagan, as Chairman; Steven Sample,
as Ex–President; Mr. King, as Chancellor; Mr. Edwards,
as University Counsel; and Dr. Mirand. After plaintiff's
extensive factual allegations, the complaint sets forth the
following claims for various forms of monetary relief:
*3 Count One: Violation of Civil Rights, Discrimination
and Retaliation
Count Two: Due Process Violation
Count Three: Equal Protection Violation

Plaintiff's State Court of Claims action proceeded to trial in
1986. Plaintiff alleges that he learned during the Court of
Claims trial that Dr. Mirand had “fraudulently manipulated”
plaintiff's academic record to cause his dismissal from the
program (Item 1, ¶ 59). On October 30, 1986, after trial, Court
of Claims Judge Edgar C. NeMoyer issued a written decision
in which he granted the State's motion to dismiss based on
the merits, “namely, failure of the claimant to prove by a
preponderance of the credible evidence the substantive claim
that he was wrongfully dismissed by the SUNY Graduate
School or the Roswell Park Graduate Division” (Ex. 58, p.
14). 4

Count Four: Wrongful Expulsion
Count Five: Fraud
Count Seven: Common Law Whistle Blower Protection
Count Eight: Freedom of Information Act Violation
Count Nine: Libel
Count Ten: Threat
Count Eleven: Dereliction of Duties and Negligence

Plaintiff alleges that he made complaints to other bodies,
including a complaint to the federal government in June 1986
which resulted in a letter from the United States Department
of Education Office of Civil Rights advising that they would
investigate the matter (Ex. 66). He also wrote in May 2002 to
New York State Governor George Pataki, to which defendant
Robert King, Chancellor of SUNY, responded by letter
dated June 27, 2002 that the matter had been “exhaustively
examined” by way of the University's grievance process,
review by the National Institutes of Health, and the state court
system, all finding in favor of the University (Ex. 69). By
letter of February 19, 2003, plaintiff was advised by defendant
Andrew Edwards, Counsel for SUNY, that his complaints had
been resolved “much more than a decade ago,” and that if
he continued to make calls to University offices, the matter
would be referred to “appropriate police authorities” (Ex. 74).
Finally, by letter dated May 27, 2003, plaintiff was advised by
John O'Connor, Vice Chancellor and Secretary of SUNY, that
it was the “final decision” of the University to deny plaintiff's
request to investigate his claims of improper treatment any
further, since those matters had been “exhaustively examined
and rejected in multiple fora” (Ex. 76).

Defendants move to dismiss these claims as time-barred, or
for otherwise failing to state a claim upon which relief can
be granted. For the following reasons, defendants' motion is
granted.

DISCUSSION
I. Standard for Dismissal under Rule 12(b)(6)
In determining a motion to dismiss under Rule 12(b)
(6), the court must accept as true all well-pleaded factual
allegations of the complaint and must draw all inferences in
favor of the pleader. See City of Los Angeles v. Preferred
Communications, Inc., 476 U.S. 488, 493, 106 S.Ct. 2034,
90 L.Ed.2d 480 (1986); Mills v. Polar Molecular Corp.,
12 F.3d 1170, 1174 (2d Cir.1993); Bey v. Welsbach Elec.
Corp., 2001 WL 863419 (S.D.N.Y. July 30, 2001). In order
to avoid dismissal, plaintiff must do more than plead mere
“[c]onclusory allegations or legal conclusions masquerading
as factual conclusions....” Gebhardt v. Allspect, Inc., 96
F.Supp.2d 311, 333 (S.D.N.Y.2000) (quoting 2 James Wm.
Moore, MOORE'S FEDERAL PRACTICE ¶ 12.34[a] [b] (3d

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Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

ed.1997)). Dismissal is proper only when “it appears beyond
doubt that the plaintiff can prove no set of facts in support
of his claim which would entitle him to relief.” Conley v..
Gibson, 355 U.S. 41, 45–46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957);
accord Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir.1994).
The defense of statute of limitations is properly raised by a
Rule 12(b)(6) motion where the complaint on its face shows
noncompliance with the limitations period. Oshiver v. Levin,
Fishbein, Sedran & Berman, 38 F.3d 1380, 1385 n. 1 (3d
Cir.1994); see also Adams v. Crystal City Marriott Hotel,
2004 WL 744489, at *2–*3 (S.D.N.Y. April 6, 2004). When
evaluating statute of limitations defenses in the context of a
motion to dismiss, the court “may also consider matters of
public record, orders, exhibits attached to the complaint and
items appearing in the record of the case.” Oshiver, 38 F.3d
at 1384 n. 2.
It is noted that in addressing a motion to dismiss where
the plaintiff is proceeding pro se, the allegations of the
complaint should be judged by a more lenient standard than
that accorded to a formal pleading drafted by lawyers. Hughes
v. Rowe, 449 U.S. 5, 9, 101 S.Ct. 173, 66 L.Ed.2d 163 (1980);
see also Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir.1994)
(pro se submissions to be read liberally and interpreted “to
raise the strongest arguments they suggest”). Nevertheless,
proceeding pro se does not altogether relieve the plaintiff of
the usual pleading requirements, Bey, 2001 WL 863419, at
*2, and a plaintiff who has demonstrated his or her familiarity
with the court system will be granted less leeway than one
who faces the prospect of prosecuting a case without a lawyer
for the first time. See, e.g., Davidson v. Flynn, 32 F.3d 27, 31
(2d Cir.1994).

injured in an action at law, suit in equity, or other proper
proceeding for redress....
Since Congress has not established a statute of limitations
for a federal cause of action under Section 1983, the federal
courts borrow the relevant state law limitation period for
personal injury actions to determine whether the claim
was timely. See Wilson v. Garcia, 471 U.S. 261, 276, 105
S.Ct. 1938, 85 L.Ed.2d 254 (1985); see also Pearl v. City
of Long Beach, 296 F.3d 76, 79 (2d Cir.2002). In New
York, the applicable statute of limitations for Section 1983
actions is three years. Eagleston v. Guido, 41 F.3d 865,
871 (2d Cir.1994). Thus, in order for plaintiff's federal
constitutional claims to be timely, this action must have
been commenced within three years from the date that his
causes of action accrued. 6 Under federal law, an action
accrues when a plaintiff knows or has reason to know of the
alleged injury which forms the basis of his action. Pearl,
296 F.3d at 80.
Here, the action was commenced by the plaintiff's filing in
New Jersey on August 22, 2003. His Section 1983 claims can
be considered timely only if they arose after August 22, 2000.
Clearly, the events forming the basis of plaintiff's
constitutional claims occurred many years before August
2000, and plaintiff's own conduct and factual allegations
reveal that he was aware of these events well before that
date. He previously filed a number of legal actions related
to the facts and circumstances of his dismissal from the

constitutional claims 5 (interpreted liberally in plaintiff's
favor) arise under 42 U.S.C. § 1983, which provides a civil
cause of action for deprivation of federal rights as follows:

PhD program, 7 and he was advised in June 1985 that
the prior notices given to him in September 1983 by Dr.
Mirand constituted the University's “final determination” of
the matter (Ex. 52). By his own admission, plaintiff learned
at the time of his 1986 trial in the State Court of Claims that
Dr. Mirand had allegedly tampered with plaintiff's academic
record (Item 1, ¶ 59). The plaintiff's numerous allegations
of fraud, negligence, “academic malfeasance,” failure to
investigate, perjury at his 1986 trial, and other conduct on
the part of defendants forming the basis of his constitutional
claims largely relate to this alleged tampering, about which
plaintiff knew or should have known more than seventeen
years prior to the filing of this action.

Every person who, under color of any statute, ordinance,
regulation, custom, or usage, of any State ..., subjects, or
causes to be subjected, any citizen of the United States
or other person within the jurisdiction thereof to the
deprivation of any rights, privileges, or immunities secured
by the Constitution and laws, shall be liable to the party

Plaintiff contends that the defendants' violation of his
constitutional rights is ongoing, as evidenced by the May 27,
2003 letter from Mr. O'Connor (Ex. 76). Where a plaintiff
can demonstrate an ongoing or continuing violation of his
federally protected rights, “the plaintiff is entitled to bring
suit challenging all conduct that was a part of the violation,
even conduct that occurred outside the limitations period.”

II. Statutes of Limitations
A. Counts One, Two and Three: 42 U.S.C. § 1983
*4 While not specifically pleaded, plaintiff's various

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Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

Cornwell v. Robinson, 23 F.3d 694, 704 (2d Cir.1994).
However, the federal courts look unfavorably on continuing
violation arguments, and have applied the theory only under
“compelling circumstances,” such as where the unlawful
conduct takes place over a period of time, making it difficult
to pinpoint the exact day the violation occurred; where there
is an “express, openly espoused policy [that is] alleged to
be discriminatory;” or where there is a pattern of covert
conduct such that the plaintiff only belatedly recognizes its
unlawfulness. Brown v. Local 701 of Intern. Brotherhood
of Electrical Workers, 2000 WL 1222174, at *9 (N.D.Ill.,
August 23, 2000) (citing Stewart v. CPC Int'l, Inc., 679 F.2d
117, 120–21 (7th Cir.1982)).
*5 The mere fact that wrongful acts may have a continuing
impact is not sufficient to find a continuing violation.
Blankman v. County of Nassau, 819 F.Supp. 198, 207
(E.D.N.Y.1993) (citing Delaware State College v. Ricks,
449 U.S. 250, 257, 101 S.Ct. 498, 66 L.Ed.2d 431 (1980)
(continuing violation can not be based on the continuing
effects of earlier unlawful conduct); United Air Lines v.
Evans, 431 U.S. 553, 558, 97 S.Ct. 1885, 52 L.Ed.2d
571 (1977) (same)). Nor is the fact that the plaintiff's
ongoing protests, objections, requests for reconsideration,
and persistent demands for administrative and judicial review
have caused the dispute to linger to the present day. See
Jaghory v. New York State Dept. of Education, 1996 WL
712668, at *5 (E.D.N.Y. December 5, 1996); see also Ricks,
449 U.S. at 261 (in employment discrimination context,
mere requests for reconsideration do not extend the normal
statute of limitations period); Morse v. University of Vermont,
973 F.2d 122, 125 (2d Cir.1992) (claim for discriminatory
dismissal from Masters of Education program accrued,
at latest, when university withdrew offer of readmission;
internal administrative review of allegedly discriminatory
decision had no effect on running of statute of limitations
period).
In this case, whether measured from the June 1985 “final
determination” by the University, or from the 1986 Court
of Claims trial, plaintiff's claims for damages or other relief
pursuant to Section 1983 based on alleged violations of
his constitutional rights accrued well prior to August 22,
2000, and nothing in the complaint suggests the presence
of “compelling circumstances” sufficient to invoke the
continuing violation doctrine. Accordingly, Counts One
(Violation of Civil Rights, Discrimination and Retaliation),
Two (Due Process Violation), and Three (Equal Protection

Violation) are dismissed as barred by the three-year statute of
limitations for Section 1983 actions.

B. Count Four: Wrongful Expulsion
In Count Four of the complaint, entitled “Wrongful
Expulsion,” plaintiff alleges that he was wrongfully
terminated from his academic program. Read liberally and
interpreted to raise the strongest possible arguments, the
closest these allegations come to a cognizable cause of action
would be a claim of violation of a contractual right. See
State of New York v. Fenton, 68 A.D.2d 951, 951, 414
N.Y.S.2d 58, 59 (3d Dep't 1979) (Relationship between
student defendant and State University was contractual in
nature) (citing Anthony v. Syracuse University, 224 A.D. 487,
231 N.Y.S. 435 (4 th Dep't 1928)). As such, Count Four
would be governed either by the six-year limitation period
for contracts of N.Y.C.P.L.R. § 213(2), or the same period
for “an action for which no limitation is specifically prescribe
by law.” N.Y.C.P.L.R. § 213(1). In either event, this claim
is untimely, since the “expulsion” took place in December
1981–nearly twenty-two years prior to the filing of this action.
Plaintiff argues that the running of the limitations period
for his wrongful expulsion claim should be tolled until
he received the May 27, 2003 letter from Mr. O'Connor
informing him of the University's final determination of his
request to investigate the circumstances of his dismissal from
the PhD program. This argument is rejected. There is no
provision in New York's C.P.L.R. allowing for the tolling
of the statute of limitations for reasons such as these, and
principles of equitable tolling are available “to a very limited
extent” only where “a claimant is, through absolutely no fault
of his own, unable to sue.” Roldan v. Allstate Ins. Co., 149
A.D.2d 20, 33, 544 N.Y.S.2d 359, 367 (2d Dep't 1989). The
plaintiff's ongoing and persistent demands for administrative
or judicial review of his December 1981 dismissal from the
PhD program cannot in any way be attributable to conduct on
the part of defendant warranting equitable tolling of the sixyear limitations period for his “wrongful expulsion” claim.
*6 Accordingly, since the complaint on its face shows
noncompliance with the limitations period, plaintiff can prove
no set of facts in support of his claim for wrongful expulsion
which would entitle him to relief. This claim is dismissed as
time-barred.

C. Count Five: Tortious Interference

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Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

In Count Five, plaintiff asserts that each of the individual
defendants tortiously interfered with his relationship with
the Graduate School. Such a claim, if cognizable, would be
governed by the three-year limitations period of N.Y.C.P.L.R.
§ 214(4). See Spinap Corp., Inc. v. Cafagno, 302 A.D.2d 588,
756 N.Y.S.2d 86 (2d Dept.2003).
In support of his tortious interference claim, plaintiff
alleges that the defendants “skirted the policies of the
graduate school” (Item 1, ¶ 220), “violated the policies of
the University on admission/readmission” (id., ¶ 221, 756
N.Y.S.2d 86), and “aided and abetted Defendant Mirand
to arbitrarily assign plaintiff to a non-approved-and-nonexisting terminal Master of Science (M.S.) program ...” (id.,
¶ 224, 756 N.Y.S.2d 86). These events, if true, all took place
in the early 1980s, and therefore all of the facts necessary to
the cause of action for tortious interference existed more than
three years before this action was commenced.
Plaintiff contends that the statute did not begin to run until
June 27, 2002, the date of Chancellor King's letter to plaintiff
informing him that his charge of improper dismissal had been
exhaustively examined at several administrative and judicial
levels, and rejected. As with the “wrongful expulsion” claim,
there is nothing in the complaint to warrant equitable tolling
of the limitations period to accommodate plaintiff's ongoing
and persistent demands for administrative or judicial review
of his December 1981 dismissal from the PhD program.
Accordingly, since the complaint on its face shows
noncompliance with the limitations period, plaintiff can prove
no set of facts in support of his claim for tortious interference
which would entitle him to relief. This claim is dismissed as
time-barred.

D. Count Six: Fraud
In Count Six, plaintiff alleges that defendants doctored
plaintiff's academic record to cover up the Ips' scientific
misconduct, and committed perjury at the 1986 Court of
Claims trial by, among other things, submitting these falsified

alleged doctoring of his grades at his Court of Claims trial,
when his academic record was introduced as evidence (Item 1,
¶ 235). Thus, all of the facts necessary to the fraud claim based
on falsification of records or perjury existed some sixteen
years before this action was commenced.
*7 Accordingly, plaintiff's claims of fraud with respect
to alleged falsification of his academic record and alleged
perjury at his 1986 trial are dismissed as time-barred.

E. Count Seven: “Common Law Whistle Blower
Protection”
In Count Seven, plaintiff claims “Common Law Whistle
Blower Protection” (Item 1, ¶¶ 246–74). No such cause of
action exists, either in federal or New York common law. 9
New York recognizes statutory “whistle blower protection”
for private sector employees, in Labor Law § 740, and for
public employees, in Civil Service Law § 75–b, in very
limited circumstances which have no application here. In any
event, if plaintiff were eligible to sue under this provision, he
would be required to do so “within one year after the alleged
retaliatory personnel action was taken.” N.Y. Labor Law §
740(4)(a) (which applies as well to public employee actions,
pursuant to N.Y. Civil Service Law § 75–b(3)(c)).
Since plaintiff was clearly aware of all the facts necessary to
state a claim for whistleblower protection many years prior
to the filing of the complaint in this case, this claim is timebarred.

F. Count Eight: “Freedom of Information Act Violation”
In Count Eight, plaintiff alleges that he wrote Chancellor
King on February 11, 2003 seeking a copy of his academic
record under the Freedom of Information Act, but his request
was denied. The denial came by way of defendant Edwards'
February 19, 2003 letter, stating that “there will not be a
response” to plaintiff's letter to the Chancellor (Ex. 74).
Plaintiff seeks money damages based on this alleged violation
of the Freedom of Information Act.

records as evidence. 8 This claim is also time-barred.
The New York statute of limitations for fraud is six years
from the date of commission, or two years from the date the
plaintiff discovered, or should have discovered, the fraud,
whichever is longer. N.Y.C.P.L.R. §§ 203(f), 213(8); see also
Long Island Lighting Co. v. Imo Indus. Inc., 6 F.3d 876, 887
(2d Cir.1993). Plaintiff acknowledges that he learned of the

Since the complaint refers to records of New York State, the
federal Freedom of Information Act (“FOIA”), 5 U.S.C. §
552, has no application. New York's Freedom of Information
Law (“FOIL”), N.Y. Public Officers Law Article 6, may be
enforced by means of a proceeding pursuant to N.Y.C.P.L.R.
Article 78, see N.Y. Pub. Off. Law § 89(4)(b), but it does
not give rise to a private cause of action to recover money
damages. Sank v. City University of New York, 2002 WL

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Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

523282, at *9 (S.D.N.Y. April 5, 2002); Warburton v.
State, 173 Misc.2d 879, 881–82, 662 N.Y.S.2d 706, 708
(N.Y.Ct.Cl.1997). Of course, this court has no jurisdiction
over an Article 78 proceeding.
In any event, under N.Y.C.P.L.R. § 217(1), an Article 78
proceeding against a body or officer “must be commenced
within four months after ... the respondent's refusal, upon the
demand of the petitioner or the person whom he represents,
to perform its duty....” Here, the state official's denial of
plaintiff's FOIL request is alleged to have occurred on
or about February 19, 2003. To be timely, an Article 78
proceeding seeking review of this denial must have been
commenced by June 19, 2003. Accordingly, to the extent it
might have resulted in some type of injunctive relief from this
court, the filing of the complaint on August 22, 2003 renders
plaintiff's FOIL claim untimely.
*8 To the extent it seeks money damages, Count Eight is
dismissed for lack of subject matter jurisdiction and failure to
state a claim upon which relief can be granted.

G. Count Nine: Libel
Plaintiff alleges that, on information and belief, defendant
King published his June 27, 2002, letter to the plaintiff (Ex.
69) to an unidentified third party. This alleged publication
forms the basis for Count Nine of the complaint (Item 1, ¶¶
291–301).
The limitations period for defamation under New York law
is one year. N.Y.C.P.L.R. § 215(3). For the purpose of
computing the running of the one-year statute of limitations,
the cause of action accrues on the day the statements at issue
were made. Vasile v. Dean Witter Reynolds Inc., 20 F.Supp.2d
465, 495 (E.D.N.Y.1998). Since the letter containing the
allegedly defamatory statements was “published” on or about
June 27, 2002, plaintiff's defamation claim, filed on August
22, 2003, is untimely.

H. Count Eleven: “Dereliction of Duties and Negligence”
In Count Eleven, plaintiff reiterates the factual allegations
pertaining to his dismissal from the PhD program, and restates
several of the allegations supporting the preceding Counts in
the complaint, to allege “dereliction of duties and negligence”
on the part of the Board of Trustees as a collective body (see,
e.g., Item 1, ¶ 361). To the extent this claim is asserted for
negligence based on any actions prior to August 22, 2000,

it must be dismissed as time-barred under the three-year
limitations period of N.Y.C.P.L.R. § 214.
To the extent Count Eleven alleges negligence based on
conduct or events occurring after August 22, 2000, it is
dismissed for failure to state a claim upon which relief can be
granted, as discussed in Section III(C) infra.

III. Failure to State a Claim
A. Count Six: Fraud
Plaintiff also alleges in Count Six that defendants King and
Edwards committed fraud by continuing to lie about matters
pertaining to plaintiff's academic dismissal in their respective
letters of June 27, 2002, and February 19, 2003. Defendants
acknowledge that, while lacking in merit, the fraud claims
based on these letters would at least be timely. However, the
court's review of the matters set forth in these letters clearly
shows that plaintiff can prove no set of facts in support of
his fraud claims against defendants King and Edwards which
would entitle him to relief.
Under New York law, to state a claim for fraud a plaintiff
must demonstrate: (1) a misrepresentation or omission of
material fact (2) which the defendant knew to be false, (3)
made with the intention of inducing reliance, (4) upon which
the plaintiff reasonably relied, and (5) which caused injury
to the plaintiff. Wynn v. AC Rochester, 273 F.3d 153, 156
(2d Cir.2001); see also Barclay Arms, Inc. v. Barclay Arms
Assoc., 74 N.Y.2d 644, 646–47, 542 N.Y.S.2d 512, 540
N.E.2d 707 (1989). Because nothing in either of defendant
King's or defendant Edwards' letters could reasonably be
construed as a misrepresentation or omission of material fact
which the particular defendant knew to be false, plaintiff's
fraud claim with respect to these defendants fails at the prima
facie pleading stage.
*9 In his June 27, 2002 letter, Chancellor King stated as
follows:
As you know, your charge of improper
academic dismissal was thoroughly
reviewed through the University
at Buffalo's established grievance
process. This review upheld your
dismissal. In addition, an external
panel of the National Institutes of
Health reviewed the charges of alleged
scientific misconduct and completely

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Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

exonerated the accused scientists.
Finally, upon your initiation of civil
suits against the university, in all
matters the court found in favor of the
university.
(Ex. 69). Plaintiff contends that this statement is false
because no grievance procedures were ever conducted by the
University. This contention is belied by the extensive exhibits
attached to the complaint indicating that plaintiff submitted
several requests for academic review and reinstatement
(Exs.38, 40–42), which were acted upon through appropriate
University channels (see Exs. 43, 47). As Judge NeMoyer
indicated in his October 30, 1986 decision after trial, plaintiff
did indeed file a grievance with the University in July
1983, along with several formal and informal requests for
readmission (Ex. 58, at 6). Upon receipt and review of
plaintiff's requests, the University and Roswell Park “ ‘amply
fulfilled their obligation to act in good faith’ when they
offered Mr. Yip the opportunity for limited readmission, so
that he could submit his Master's thesis and be considered for
a Master's degree for the work he had undertaken.” (Id. at 10,
542 N.Y.S.2d 512, 540 N.E.2d 707).

the Appellate Division, Fourth Judicial
Department in 1996.
(Ex. 74) (internal quotation marks and citations omitted).
Plaintiff contends that this statement is false because he
did not attempt to reopen his case through litigation in the
state courts. However, as noted above in note 7, supra,
matters of public record in the state court system suggest
otherwise. Specifically, in addition to the action in the New
York Court of Claims, plaintiff commenced at least two
other lawsuits in New York State Supreme Court asserting
claims related to the circumstances of his dismissal from
the program, all of which were dismissed: Yip v. Ip, Index
No. H–46988, commenced in January 1984, and Yip v. Ip,
Index No. 15269/92, commenced in 1992. In its written
memorandum of July 12, 1996 upholding the State Supreme
Court's dismissal of the 1992 action, the Appellate Division,
Fourth Department, specifically noted that plaintiff “withheld
information from the court regarding prior and pending
litigation, in which he asserted substantially the same claims
against defendants,” and that the causes of action in the 1992
suit were “virtually identical” to the causes of action alleged
in both the 1984 Supreme Court suit and the 1984 Court of
Claims suit. Yip v. Ip, 229 A.D.2d 979, 979, 646 N.Y.S.2d

Plaintiff also contends that defendant King's statement is
false because the review conducted by the National Institutes
of Health was incomplete. However, the completeness of
the review has no bearing on the correctness of Chancellor
King's statement. To the contrary, the exhibits attached
to the complaint sufficiently demonstrate that the National
Institutes of Health undertook an investigation of the alleged
scientific misconduct on the part of the Ips, and completely
exonerated them (Ex. 70). This is precisely what Chancellor
King reported in his June 27, 2002 letter.

481, 481 (4 th Dep't 1996).

The same holds true with respect to the statements made by
Mr. Edwards. In his February 19, 2003 letter, Mr. Edwards
stated as follows:

Accordingly, plaintiff's claims of fraud with respect to
statements made by defendants King and Edwards are
dismissed for failure to state a claim upon which relief can be

You are well aware of the University
at Buffalo's resolution [of your]
complaints. As you know, those
resolutions occurred much more than
a decade ago. There is simply no basis
for reopening time-barred matters
that were finally resolved within the
University and by the Courts. I note
that your attempt to reopen these
closed matters through litigation was
rejected by State Supreme Court and

*10 In addition, nothing in the complaint can be construed
to allege that Chancellor King and Mr. Andrews made their
statements with the intent to induce reliance by plaintiff,
or that plaintiff somehow relied on those statements to his
detriment. Simply put, even if plaintiff could show that the
statements were false, and that defendants King and Edwards
knew they were false, plaintiff cannot show that he suffered
any harm as a result of his reliance on those statements.

granted. 10

B. Count Ten: Threat
In Count Ten, plaintiff alleges that defendant Edwards
wrongfully and maliciously threatened plaintiff in his
February 19, 2003 letter by stating that, if plaintiff continued
to make calls to University offices, the matter would be
referred to “appropriate police authorities” (Ex. 74; Item 1, ¶
317). Plaintiff also alleges that the Board of Trustees “aided

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Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

and abetted Defendant Edwards, Jr. in making the threat to
call the police” (Item 1, ¶ 318).
Interpreted liberally to raise the strongest arguments they
suggest, these allegations can be considered an attempt to
plead a cause of action for intentional infliction of emotional
distress, which is recognized under New York law. There is
no analogous federal cause of action.
To prevail on a claim for intentional infliction of emotional
distress in New York, a plaintiff must plead and prove the
following four elements: (1) extreme and outrageous conduct;
(2) intent to cause severe emotional distress; (3) a causal
relationship between the conduct and the resulting injury; and
(4) severe emotional distress. See Bender v. City of New York,
78 F.3d 787, 790 (2d Cir.1996) (citing Howell v. N.Y. Post
Co., 81 N.Y.2d 115, 121, 596 N.Y.S.2d 350, 612 N.E.2d 699
(1993)). As explained by the New York Court of Appeals in
Howell:
The first element-outrageous conduct
—serves the dual function of filtering
out petty and trivial complaints
that do not belong in court, and
assuring that plaintiff's claim of severe
emotional distress is genuine. In
practice, courts have tended to focus
on the outrageousness element, the one
most susceptible to determination as a
matter of law.
Howell, 81 N.Y.2d at 121, 596 N.Y.S.2d 350, 612 N.E.2d
699 (citations omitted). Consequently, the courts have found
the “outrageous conduct” requirement “rigorous, and difficult
to satisfy.” Id. at 122, 596 N.Y.S.2d 350, 612 N.E.2d 699
(quoting PROSSER AND KEETON, TORTS § 12, at 60–
61 (5 th ed.)). In fact, liability for intentional infliction of
emotional distress has been found “only where the conduct
has been so outrageous in character, and so extreme in degree,
as to go beyond all possible bounds of decency, and to be
regarded as atrocious, and utterly intolerable in a civilized
community.” Murphy v. American Home Products Corp., 58
N.Y.2d 293, 303, 461 N.Y.S.2d 232, 448 N.E.2d 86 (1983).
“The law does not seek to compensate individuals for threats,
annoyances or petty oppressions or other trivial incidents
which must necessarily be expected and are incidental
to modern life no matter how upsetting.” Zimmerman v.
Carmack, 292 A.D.2d 601, 601, 739 N.Y.S.2d 430, 431 (2d
Dep't.2002) (internal quotation marks and citation omitted).

*11 Evaluated under this standard, Mr. Edwards' statement
about possibly referring the matter to police authorities
cannot be considered so outrageous or extreme as to go
beyond all possible bounds of decency. Indeed, when
considered in context along with the exhaustive history of
plaintiff's complaints, Mr. Edwards' statement constituted
a legitimate response to plaintiff's continued writing and
calling University representatives over the course of more
than twenty years.
Accordingly, plaintiff can prove no set of facts in support
of his “threat” claim which would entitle him to relief for
intentional infliction of emotional distress.

C. Count Eleven: “Dereliction of Duties and Negligence”
As mentioned above, in Count Eleven plaintiff alleges
“dereliction of duties and negligence” on the part of the
Board of Trustees as a collective body. More specifically,
plaintiff claims that the Board “owe[ ]d a duty of care to
protect plaintiff from culpable, tortious, discriminatory and
retaliatory acts of university administrators” (Item 1, ¶ 362),
“failed to exercise oversight role to supervise university
administrators” (id. at ¶ 363, 739 N.Y.S.2d 430), and “failed
to protect students in its care by not establishing procedures
for reporting scientific misconduct ...” (id. at ¶ 364, 739
N.Y.S.2d 430). He seeks monetary relief in the form of
compensatory and punitive damages (id. at ¶¶ 367–72, 739
N.Y.S.2d 430).
Plaintiff's claims against the Board are barred by the Eleventh
Amendment to the Constitution, which provides that “[t]he
Judicial power of the United States shall not be construed to
extend to any suit in law or equity, commenced or prosecuted
against one of the United States by Citizens of another
State, or by Citizens or Subjects of any Foreign State.” This
immunity from suit precludes not only federal court actions
against a state brought by citizens of other states (as the literal
language of the Amendment provides), but also suits against
states brought by their own citizens. See Papasan v. Allain,
478 U.S. 265, 276, 106 S.Ct. 2932, 92 L.Ed.2d 209 (1986).
For Eleventh Amendment purposes, SUNY “is an integral
part of the government of the State [of New York] and when
it is sued the State is the real party.” State University of New
York v. Syracuse University, 285 A.D. 59, 61, 135 N.Y.S.2d
539, 542 (3d Dep't 1954), quoted in Dube v. State University
of New York, 900 F.2d 587, 594 (2d Cir.1990). Thus, SUNYand the Board of Trustees as its governing body pursuant
to New York Education Law § 353(1)-are state agencies

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Yip v. Board of Trustees of State University of New York, Not Reported in F.Supp.2d...

for Eleventh Amendment immunity purposes, see Anderson
v. State University of New York, 169 F.3d 117, 119 (2d
Cir.1999); Dube, 900 F.2d at 594, and the claims asserted
against the Board in Count Eleven must be dismissed.
This Count also contains certain allegations against defendant
King, based on the statements in his letter of June 27, 2002
and his refusal to release plaintiff's academic record (Item
1, ¶¶ 343–45), and against defendant Edwards, based on the
statements in his letter of February 19, 2003 (Item 1, ¶¶
347–48). To the extent these allegations can be construed to
state a claim for negligence which is not time-barred, that
claim is dismissed for failure to allege that defendants King
and Edwards breached a legally enforceable duty owed to
plaintiff, and that the defendants' breach was the actual and
proximate cause of the plaintiff's injuries. See, e.g., Lombard
v. Booz–Allen & Hamilton, Inc., 280 F.3d 209, 215 (2d
Cir.2002). As discussed above in connection with plaintiff's
fraud claim, the matters set forth in the King and Edwards
letters are in all respects accurate, and plaintiff cannot show
that he suffered any harm as a result of the statements made.

*12 To the extent Count Eleven can be construed to allege
that, at the time they wrote their letters, defendants King
and Edwards had a legally enforceable duty to inquire into
the plaintiff's dismissal which took place over twenty years
before, no such duty exists, and so there can be no liability for
a refusal to conduct such an inquiry.
Accordingly, since plaintiff can prove no set of facts in
support of his “dereliction of duties and negligence” claim
which would entitle him to relief, Count Eleven is dismissed
for failure to state a claim upon which relief can be granted.

CONCLUSION
Based on the foregoing, defendants' motion (Item 21) is
granted, and the complaint dismissed in its entirety.
So ordered.

Footnotes

1
2
3
4

5
6
7

8
9

On a motion to dismiss, the district court may consider, in addition to the facts alleged on the face of the complaint, any documents
attached as exhibits or incorporated by reference. International Audiotext Network, Inc. v. Am. Tel. & Tel. Co., 62 F.3d 69, 72 (2d
Cir.1995).
At the time, the Roswell Park Cancer Institute was known as the Roswell Park Memorial Institute, and was operated by the New
York State Department of Health. By statute (New York Public Authorities Law § 3553), it is now a public benefit corporation and
is known as the Roswell Park Cancer Institute. It is referred to herein as “Roswell Park” or “Roswell.”
Unless otherwise indicated, references preceded by “Ex.” are to the exhibits attached to plaintiff's complaint (Item 1).
As alluded to above, this court dismissed plaintiff's federal lawsuit by decision and order dated July 9, 1992. In its decision, the court
held that it “will not entertain any argument concerning the reasons why Mr. Yip was dismissed from school and prevented from
continuing his education. That issue was resolved in Philip Yip v. State of New York, Claim No. [68889] ( [N.Y.Ct.Cl.] October 30,
1986), and will not be relitigated.” Philip Yip v. Clement Ip, No. 84–CV–1403C, Item 35, at p. 4.
These would include: Count One, ¶¶ 151–64, entitled “Violation of Civil Rights, Discrimination, and Retaliation;” Count Two, ¶¶
165–87, “Due Process Violation;” and Count Three, ¶¶ 188–208, “Equal Protection Violation.”
Plaintiff would fare no better if his constitutional claims were governed by the period applicable in New Jersey, where the action
was commenced, since there the claims would be governed by a two-year statute of limitations. See Cito v. Bridgewater Township
Police Department, 892 F.2d 23, 25 (3d Cir.1989).
In addition to the prior action in this court and the action in the New York Court of Claims, plaintiff commenced at least two other
lawsuits in New York State Supreme Court asserting claims related to the circumstances of his dismissal from the Roswell Park
PhD program, all of which were dismissed: Yip v. Ip, Index No. H–46988 (commenced in January 1984); and Yip v. Ip, Index No.
15269/92 (commenced in 1992), dismissal affirmed, 229 A.D.2d 979, 646 N.Y.S.2d 481 (4 th Dep't 1996) (See Item 11, ¶ 3).
Plaintiff also alleges in Count Six that defendants King and Edwards committed fraud by continuing to lie about the matters pertaining
to plaintiff's academic dismissal in their letters of June 27, 2002, and February 19, 2003. This claim is addressed in Section III(A),
infra.
In certain circumstances, a plaintiff can sue for retaliation under 42 U.S.C. § 1983. See generally Pickering v. Board of Ed. of Township
High School Dist., 391 U.S. 563, 88 S.Ct. 1731, 20 L.Ed.2d 811 (1968). As discussed in Section II(A) supra, all of plaintiff's claims
which could be brought under § 1983 are time-barred.

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10

Ordinarily, dismissal of a fraud claim on the pleadings should be without prejudice to a plaintiff's filing an amended complaint to cure
the deficient pleading. See Acito v. IMCERA Group, Inc., 47 F.3d 47, 54–55 (2d Cir.1995). However, where the dismissal is pursuant
to Fed.R.Civ.P. 12(b)(6) for failure to state a claim on which relief may be granted, and the court has ruled as a matter of law that
no material misrepresentation was made, “[s]uch a defect cannot be cured by repleading.” Feinman v. Dean Witter Reynolds, Inc.,
84 F.3d 539, 542 (2d Cir.1996). Moreover, plaintiff has had ample opportunity to state his fraud claim in his exhaustive pleadings
previously filed in the state and federal courts, and has failed to do so. Accordingly, leave to replead would be futile, and dismissal
of the fraud claim is with prejudice. Cf. Vasile v. Dean Witter Reynolds Inc., 20 F.Supp.2d 465, 498 (E.D.N.Y.1998) (leave to amend
properly denied if amendment would be futile).

End of Document

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