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Herrick Lipton, Spielman v. New York University College of Dentistry and Dr. andrew Defendants.

March 16, 2012



Plaintiff Herrick Lipton brings this action against defendants New York University College of Dentistry ("NYUCD") and Dr. Andrew Spielman, its associate dean for academic affairs, for alleged violations of federal, state, and local laws banning discrimination against disabled individuals.

Defendants move under Fed. R. Civ. P. 12(b)(6) to dismiss the federal counts for failure to state a claim. Should the court grant this motion, defendants further move to dismiss the remaining state law claims for lack of subject matter jurisdiction. Both motions are granted.

The Complaint

The following facts are drawn from the complaint and assumed to be true for purposes of this motion.

Plaintiff entered NYUCD's predoctoral dentistry program ("DDS program") in August of 2000. Had plaintiff completed the program on schedule, he would have graduated in 2004. However, plaintiff was unable to successfully complete his first academic year, which plaintiff alleges was the result of his father's terminal illness. Plaintiff was then dismissed from the DDS program, but he successfully appealed this decision and completed the first-year curriculum on his second attempt in June 2002. Thereafter, he completed the second year of the curriculum on his first attempt in June 2003.

In July 2003, plaintiff took Part I of the National Board Dental Examination ("NBDEP1") to fulfill a degree requirement for NYUCD. Unfortunately, he failed some sections of the test and was required to retake them. In the meantime, he began his third academic year at NYUCD in August 2003.

During that year, plaintiff prepared to retake the NBDEP1. He also participated in clinical work, for which he earned praise and high marks from his supervising professors. However, plaintiff failed the NBDEP1 on his second attempt.

Plaintiff began his fourth academic year at NYUCD in August 2004. In May 2005, plaintiff underwent a neuropsychiatric evaluation, as a result of which, according to complaint ¶ 27:

Plaintiff was diagnosed with a learning disability, specifically a reading disorder which hindered his ability to accurately read and comprehend information under time constraints. The evaluation noted that Plaintiff suffered from anxiety and apprehension such that he would be unable to pass the exam under the normal time constraints. The disability (which was exacerbated by time constraints) placed Plaintiff at a disadvantage in successfully completing the test. The evaluation recommended for Plaintiff to receive additional time to alleviate the stress and anxiety of the exam, which would serve to equalize him with the other candidates sitting for the exam.

The complaint (¶ 28) goes on to allege that, after requesting an accommodation from test administrators:

Plaintiff, with the accommodation, immediately passed all parts of NBDEP1 with a time-and-a-half accommodation following the conclusion of his fourth academic year.

It also appears that plaintiff was afforded this same time-and-a-half accommodation when he took all the tests which are relevant to the present case. *fn1

During plaintiff's fourth academic year, he was also required to take the North East Regional Board of Dental Examiners exam ("NERB"), which he passed. Having completed the academic coursework of the DDS program, plaintiff participated in its graduation ceremony on May 12, 2005.

Plaintiff, however, had not yet completed all of the requirements for his degree. There remained Part II of the National Board Dental Examination ("NBDEP2"). Pursuant to NYUCD policy, all dental students (beginning with the class of 2004) are required to pass this test to graduate. That same policy specifies that candidates taking the NBDEP2 after finishing their academic coursework must re-matriculate for the academic year when the exam will be taken. For plaintiff, this meant mainly the payment of $3500 in fees. Lastly, the policy requires such students to pass the NBDEP2 within fourteen months of finishing their coursework. In contrast, until recently the American Dental Association, which administers the NBDEP2 through a sub-agency, permitted eligible examinees to retake the NBDEP2 an unlimited number of times so long as the examinee waited the requisite interval between attempts.*fn2

Plaintiff paid $3,500 to re-matriculate in September 2005, and he took the NBDEP2 that very month. Unfortunately, plaintiff failed the exam and was required by American Dental Association protocol to wait at least ninety days before retaking it. The complaint (¶ 38) offers the following explanation for this outcome:

Anxiety and stress due to the short preparation period, financial concerns, and the constant threat of dismissal, from the re-matriculation exacerbated his disability and hindered ...

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