Matter of Matter of Kickertz v New York Univ.
Decided on October 11, 2012
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
Gonzalez, P.J., Andrias, Saxe, DeGrasse, Roman, JJ.
Judgment, Supreme Court, New York County (Alice Schlesinger, J.), entered February 14, 2011, insofar as appealed from, denying the petition to annul the determination of respondent New York University (NYU) that expelled petitioner from its dental college, and dismissing the CPLR article 78 proceeding, reversed, on the law, without costs, the judgment vacated, and the petition granted.[*fn1]
Petitioner was dismissed from NYU's dental college, without the possibility of readmission, after a Peer Review Board on Ethics and Professionalism (PRB), convened pursuant to NYU's "Code of Ethics and Professional Conduct, Peer Review Board Proposal FINAL 2.6.09" (the 2009 Code), found that she forged a patient treatment record and presented multiple patient encounter forms that she knew to be false in order to obtain the Practice Model Values (PMV) credits that she needed to graduate. Petitioner argues that the disciplinary proceeding should have been conducted under NYU's "Code of Ethics and Professional Conduct Approved EMC 080405" (the 2005 Code), that NYU's determination is contradicted by the evidence, and that the penalty of expulsion without the possibility of readmission shocks the conscience. For the reasons that follow, we conclude that irrespective of whether the 2009 Code or the 2005 Code is the applicable code, NYU did not substantially comply with its own published guidelines and policies. Thus, its determination expelling petitioner must be annulled as arbitrary and capricious.
The PMV requirement was created by the "NYUCD Practice Model Plan" dated May 17, 2005. Although NYU claims that production goals were expected to help students "gain more experience and knowledge in delivering comprehensive care," and to "graduate efficient and ethical practitioners ready to meet the challenges of the real world,'" the PMV requirement was not based on hours of service. Rather, in addition to certain competency requirements, the program required students "to meet defined production level/goals," or, in other words, to generate a specified amount of revenue for NYU.
From its inception, the program appears to have been the subject of controversy. The minutes of the NYU Space and Revenue Committee Meeting held on April 5, 2006, state: "Students feel exploited over pressure to generate income in clinics, feel overwhelmed,' and that they pay too much feel like [sic] mules.' Faculty feel there is significant growth potential there. The point was made that we use dollars in the same way other schools use points, but it's the same financial requirement, and we're doing them a service by preparing them for their later practice. Resentment may fade, and the incentive and bonus program will really help. Clinic income will have to be a big revenue source."[*fn2]
It is from this obligation to generate revenue that petitioner's troubles arise. After passing all of her academic courses, competency exams, and both parts of the National Board Dentistry Examinations, at 9:54 p.m. on Monday, May 25, 2009 -- the night before she was supposed to graduate -- petitioner received an e-mail from her group practice director, Dr. Harry Meeker, advising her that he was "uncertain about [her] status for graduation. The paper that I have with me says you still owe me something." On Tuesday, May 26, 15 minutes before she was to graduate, Meeker told petitioner that she was short on PMV credits.
Petitioner claims that this was the first time she was informed of the PMV shortfall. Meeker allegedly disputed this. According to the report of the PRB's Investigating Panel, comprised of two students, Meeker told the investigators, without providing supporting documentation, that petitioner was supposed to meet with him three to four weeks before graduation to check graduation requirements, but did not do so, and that he notified petitioner of the deficiency in PMV credits in mid-April, and provided her with regular notices about it thereafter.
However, petitioner avers that Meeker never contacted her to set up an appointment or mentioned that such a meeting was needed. She states that after being told of the shortfall on graduation day, in a state of panic she told Meeker that she was moving to Boston the next day to start a pediatric dentistry residency at Boston University. Meeker replied that she should find him and Ivan Cornejo, the clinic manager, at the post-graduation reception to resolve the problem. At the reception, Cornejo, who told the Investigating Panel that he was not aware that there was a problem until that morning, advised petitioner to call Meeker and him the next day. Again, Meeker's version allegedly differed. According to the Investigating Panel Report, Meeker told the student investigators that on graduation day petitioner "knew she was deficient [in her PMV requirement] but she thought she did not have to do it." Petitioner denies this.
In any event, on May 27, 2009, Meeker advised petitioner by e-mail that "Your PMV requirement as of today is $19,093 and the target is $21,000. You should come back to make the requirement before your diploma can be awarded." Petitioner replied that she was already in Boston to start her residency orientation and that she would have fulfilled the requirement had she been timely advised of the deficiency and the need to remedy it. By e-mail dated May 29, 2009, Meeker responded: "Perhaps one of the reasons [the PMV] was not attained was due to the fact that you only treated patients in 10 out of 36 sessions in April, and incredibly did not see any patients in May .... "If you had treated even just an average number of patients during these 53 sessions that you did not attend, ... then you would have achieved and surpassed your PMV well before May."
By e-mail dated May 30, 2009, petitioner disputed Meeker's contentions and tendered a proposal to resolve her deficiency in PMV credits: "I am sick with grief from this situation. I have started my orientation in Boston and cannot return, nor do I have any patients to treat at NYU. I was finishing up my patients in April and in May. I had Invisalign and [oral surgery] consultations with patients and several disappointments [undoubtedly meaning cancellations]. The only major treatment I could've done was on my bridge patient because he needs a total of 3 FPDs. This was the patient that you said I could not do another bridge on because there are others who needed that requirement ... Additionally, I have been dealing with medical issues the past couple months. I am a deeply private person and did not wish to discuss this. It has been very hard and I do not want sympathy. When I checked my requirements back a few weeks ago I was fine ... I do not know if some procedures were entered incorrectly but now I do not have enough of the PMV which I thought I did. If this was the case I certainly would not have been okay with doing only consultation and referrals and disappointments the past few weeks. I have to be in MA to start my training but I also need to graduate. I worked hard over the past four years and tried very hard to not cause any problems and follow the guidelines. I worked hard to get accepted into a specialty program and I hope with all my heart that all this hard work does slip away [sic]. I regret deeply that this has happened and need your help. I would pay the school back the money that I did not earn for treatment if needed. I am stuck between a rock and a hard place. I have 11 family members in Illinois that are willing to help me by purchasing the at-home bleaching treatments, which at $175 each for 11 people would be $1925 and would put me over the needed PMV.... PLEASE email me asap [sic] if this will work."
Although other students had allegedly been allowed to purchase the home bleaching treatments to satisfy their PMV requirements, petitioner's offer was rejected.
Petitioner met with Meeker at the clinic on June 1, 2009. According to petitioner, Meeker told her that "it would have all been taken care of if [she] had not called or emailed [the clinic] because doing so made [his supervisor] Dr. [Mark] Wolff aware of the situation," and that she was "making [Meeker] look bad and it would reflect poorly on him in his upcoming performance review."[*fn3]
David Hershkowitz, an instructor at NYU, then joined the meeting. According to the Investigating Panel Report, Meeker told the student investigators that petitioner agreed that she "would continue patient care to complete the [PMV] requirement," and Hershkowitz told them that he "left [petitioner] with Dr. Meeker so that they could place ...