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Kickertz v. New York University

Supreme Court of New York, First Department

September 10, 2013

Katie Kickertz, Plaintiff-Appellant,
New York University, et al., Defendants-Respondents.

Plaintiff appeals from an order of the Supreme Court, New York County (Alice Schlesigner, J.), entered February 14, 2011, which, insofar as appealed from, granted defendants' motion to dismiss the amended complaint.

Leeds Morelli & Brown, P.C., Carle Place (Gregory N. Filosa and Jeffrey K. Brown of counsel), for appellant.

Bonnies S. Brier, New York University Office of General Counsel, New York (Nancy Kilson of counsel), for respondents.

Luis A. Gonzalez, P.J. Richard T. Andrias David B. Saxe Leland G. DeGrasse Judith J. Gische, JJ.


In this appeal, we consider to what extent, if any, plaintiff's claims against New York University (NYU) and three of its faculty members may be brought in a plenary action, rather than a CPLR article 78 proceeding, and to what extent, if any, they survive defendants' motion to dismiss.

NYU dismissed plaintiff from its Dental College, without the possibility of reinstatement, based on the finding of a Peer Review Board on Ethics and Professionalism, after a disciplinary hearing, 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 she needed to graduate [1]. In response, plaintiff filed both an article 78 proceeding against NYU, seeking to annul her expulsion, and this plenary action against NYU and three of its faculty members, seeking, among other things, a decree that defendants violated the New York State Human Rights Law (Executive Law § 290 et seq.), the New York City Human Rights Law (Administrative Code of City of NY § 8-107 et seq.), and General Business Law §§ 349 and 350, an award of compensatory and punitive damages, and a preliminary and permanent injunction enjoining NYU from denying her a Doctor of Dental Surgery (DDS) degree.

Supreme Court denied the petition and dismissed the article 78 proceeding, finding that NYU substantially complied with the guidelines and procedures set forth in the university's Code of Ethics in effect at the time of the disciplinary proceedings and that the penalty of expulsion was not so disproportionate as to shock the conscience (30 Misc.3d 1220[A], 2011 NY Slip Op 50131[U] [Sup Ct, NY County 2011]). The court then dismissed this plenary action "based on the dismissal of the claims asserted in the Article 78 proceeding, which was the proper vehicle to challenge the university's decision to expel [plaintiff], " adding that "an analysis of the sixteen causes of action asserted here necessarily leads to the same result" (id. at *8).

On appeal, this Court reversed and granted the article 78 petition on the ground that NYU did not substantially comply with its own published guidelines and policies relating to disciplinary proceedings, regardless of whether its 2009 or 2005 Code of Ethics applied, and that plaintiff was not afforded substantial justice (99 A.D.3d 502 [1st Dept 2012], appeal dismissed 20 N.Y.3d 1004 [2013]) (Kickertz I). Among other things, we found, based on our review of the record of the administrative proceedings submitted to us, that in violation of both the 2009 and 2005 codes, plaintiff was not given a fair opportunity to cross-examine her accusers and that key procedural rulings were made and/or influenced by a Dean of the Dental College. We also stated that even if NYU had substantially complied with its own guidelines and policies, we would find that the penalty of expulsion shocked our sense of fairness because, among other things, plaintiff's academic performance was exemplary, and this incident was at worst a single lapse in judgment in the face of extraordinary pressure created by NYU's waiting until the night before graduation to inform plaintiff of her PMV deficiency and its frustration of her efforts to obtain the needed PMV credits [1]. We now find that Supreme Court erred when it dismissed the plenary action in its entirety, and we modify to grant plaintiff leave to replead the fifth, ninth and eleventh through fourteenth causes of action in order to clarify the scope of her allegations, and to remedy, to the extent the facts and circumstances permit, the deficiencies in the complaint, thereby retaining the cognizable causes of action and excising all claims that either must be brought in an article 78 proceeding or are not sustainable for other reasons (stated herein).

"Judicial review of an academic institution's disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines and whether the determinations are based on a rational interpretation of the relevant evidence" (Kickertz I, 99 A.D.3d at 507 [internal quotation marks omitted]). Thus, to the extent plaintiff's causes of action are, in essence, a challenge to the determination to expel her, she was only entitled to article 78 review (see e.g. Maas v Cornell Univ., 94 N.Y.2d 87 [1999]; Padiyar v Albert Einstein Coll. of Medicine of Yeshiva Univ., 73 A.D.3d 634 [1st Dept 2010], lv denied 15 N.Y.3d 708 [2010]), and the filing of the article 78 proceeding mandated the dismissal of the plenary action insofar as it raised such claims (see Mt. Sinai Med. Ctr. v Empire Blue Cross & Blue Shield, 282 A.D.2d 207 [1st Dept 2001]). Conversely, to the extent the gravamen of plaintiff's causes of action is not a challenge to the decision to expel her and is not duplicative of the petition's allegations, she is not limited to article 78 review and may seek damages in a plenary action (see Wander v St. John's Univ., 99 A.D.3d 891, 893 [2d Dept 2012]; Wharry v Lindenhurst Union Free School Dist., 65 A.D.3d 1035 [2d Dept 2009]).

Plaintiff argues that the complaint should not have been dismissed because she alleges that before the disciplinary proceeding was initiated, defendants engaged in false and misleading advertising of the DDS program, breached contractual promises to her, defamed her, discriminated against her, and engaged in other tortious conduct. Each of these claims must be analyzed to determine whether it is limited to article 78 review and, if not, whether plaintiff stated a viable cause of action.

In her first cause of action, plaintiff alleges that in the spring of 2005, in violation of sections 349 and 350 of the General Business Law, NYU misled prospective students by failing to disclose that it had decided to impose a new PMV requirement starting in the fall semester of the 2005-2006 academic year, and that had she known of this requirement she would not have enrolled at NYU.

General Business Law § 349(a) declares unlawful "[d]eceptive acts or practices in the conduct of any business". To state a section 349 cause of action, a plaintiff must allege that the defendant's challenged act was consumer-oriented and materially misleading and resulted in injury to the plaintiff (Stutman v Chemical Bank, 95 N.Y.2d 25, 29 [2000]). The standard for recovery under General Business Law § 350, while specific to false advertising, is otherwise identical to that under section 349 (Denenberg v Rosen, 71 A.D.3d 187, 194 [1st Dept 2010], lv dismissed 14 N.Y.3d 910 [2010]).

Although plaintiff's General Business Law §§ 349 and 350 claim does not challenge NYU's decision to expel her, it was correctly dismissed because plaintiff cannot establish that NYU had a duty to describe every aspect of its prospective graduation requirements and potential future curriculum changes in the dental program to applicants in precise detail. "Implicit in a university's general contract with its students is a right to change the academic degree requirements, provided that such changes are not arbitrary and capricious" (Babiker v Ross Univ. Sch. of Medicine, 2000 WL 666342, *6, 2000 U.S. Dist LEXIS 6921, *22 [SD NY 2000], affd 86 Fed.Appx 457 [2d Cir 2004]; Delta Kappa Epsilon Alumni Corp. v Colgate Univ., 11 Misc.3d 1060 [A], 2006 NY Slip Op 50327[U], *3-4 [Sup Ct Madison County 2006]), affd38 ...

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