The opinion of the court was delivered by: POLLACK
Defendants move pursuant to Fed.R.Civ.P. 12(b)(6) to dismiss the claims against them as barred by applicable statute of limitations and res judicata, as well as for the failure of the pleadings to make out the elements of the asserted federal and state claims.
Jurisdiction over this action is asserted under 28 U.S.C. §§ 1331 and 1343.
Plaintiff Munshi sues defendants New York University (NYU) and various members of the administration and faculty for alleged deprivation of his civil rights under the Thirteenth Amendment,
42 U.S.C. §§ 1981, 1985(3) and 1988 (1976) as well as on state law grounds. Plaintiff claims that NYU's refusal to permit him to continue his Ph. D. studies in the School of Business Administration after plaintiff failed the exam three times was based on his race and national origin. Plaintiff last took the examination in November 1965.
Plaintiff's civil rights action is clearly barred by the applicable three-year statute of limitations set forth in N.Y.C.P.L.R. § 214(2) (McKinney 1972) and accordingly defendants' motion to dismiss must be granted. Moreover, the limitary bar is so obvious and certain that plaintiff's action can only be deemed "frivolous" and "unreasonable", thus entitling defendants to attorney's fees under the Civil Rights Attorney's Fees Award Act of 1976, 42 U.S.C. § 1988 (Supp.1981) (as amended).
The facts as plaintiff alleges them are as follows.
Plaintiff is a permanent United States resident of Indian nationality. Nineteen years ago, in the fall of 1962, he enrolled in the Doctor of Philosophy program in the Graduate School of Business Administration of NYU. As part of the program plaintiff was required to pass a qualifying examination in Economics. Plaintiff sat for the examination in November 1964 and was told that he had failed. He inquired about the failing grade and was informed that he could not be shown his answers as two examination books were missing and only a completed file was available.
Plaintiff sat for the examination a second time sixteen years ago, in May 1965, which he again failed. Plaintiff was allowed to see his answers this time and learned that a Professor Fabricant had graded his answer a flat zero. Plaintiff met with Professor Fabricant and claims that the professor told him "Indian students do not need a Ph.D. in Business Administration" and that "if a great number of Indians get Ph.D.s then they will create more trouble in India." Plaintiff also alleges that other teachers thought his essay deserved more than a zero, and that those who tried to help him were told by the Dean of the Business School to stay out of the matter.
Plaintiff took the examination a third time in May 1965, again 16 years ago, and again failed. He inspected his papers and saw that Professor Fabricant had given him a low grade on the answer he had marked, and that a Dr. Kieper had also given him a low grade on the essay that he, Dr. Kieper, had graded. Plaintiff attempted to obtain explanations from various professors as to why he had failed and also wrote letters to the President of the University and the Trustees.
In April of 1974, "to bring moral pressure upon the University", plaintiff instituted a hunger strike which he gave up when he was told that he would have a meeting with the then Associate Dean Hughes. The meeting did not take place.
On December 5, 1977, plaintiff met with the then Dean Dill of the Business School and a minister named Dr. Harrington at which the Dean allegedly expressed the opinion that Professor Fabricant had misjudged plaintiff's answer on his second examination.
On April 7, 1978, plaintiff examined his files pursuant to the provisions of the Family Educational Rights and Privacy Act of 1974 (the "Buckley Amendment"), 20 U.S.C. § 1232g (1976), and discovered, he says, that five of the nine books ...