In the Matter of Katie Kickertz, Respondent,v.New York University, Appellant.BriefN.Y.February 10, 2015State of New York Court of Appeals BRIEF FOR PETITIONER-RESPONDENT DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 1-800-531-2028 - Email: appeals@dickbailey.com -Website: www.dickbailey.com Supreme Court, New York County, Index No. 103461/10 In the Matter of the Application of KATIE KICKERTZ, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules -against- NEW YORK UNIVERSITY, Respondent-Appellant. TO BE ARGUED BY: BRYAN ARBEIT, ESQ. COURT OF APPEALS NO. APL-2013-00248 TIME REQUESTED: 20 MINUTES LEEDS BROWN LAW, P.C. Attorneys for Petitioner-Respondent One Old Country Road, Suite 347 Carle Place, New York 11514 (516) 873-9550 Date Completed: June 16, 2014 i TABLE OF CONTENTS Page TABLE OF AUTHORITIES ....................................................................................iv STATUS OF RELATED LITIGATION ...................................................................1 PRELMINARY STATEMENT.................................................................................1 QUESTIONS PRESENTED......................................................................................6 STATEMENT OF FACTS ........................................................................................7 A. NYU’s Motion to Dismiss Based on Documentary Evidence..............8 B. Justice Schlesinger Dismisses the Petition............................................9 C. The Appellate Division Reverses the Petition’s Dismissal and Grants the Petition ...............................................................................10 1. The Undisputed Facts Before the Appellate Division ..............10 D. The Appellate Division’s Findings .....................................................13 E. Final Judgment of the Supreme Court ................................................15 ARGUMENT ...........................................................................................................15 I. THIS COURT DOES NOT HAVE JURISDICTION OVER NYU’S APPEAL BECAUSE THE DOUBLE DISSENT WAS ON A MIXED ISSUE OF LAW AND FACT.......................................................................15 II. NO SUBSTANTIAL RIGHT OF NYU WAS PREJUDICED BY NOT BEING ABLE TO ANSWER ..............................................................16 A. NYU Had a Full and Fair Opportunity to Litigate..............................17 B. There Is No Prejudice To NYU Based on Its Inability To Offer Certain Evidence .................................................................................20 ii a. Evidence that Katie falsified the chart and treatment records ............................................................21 b. Evidence that the investigators reviewed the “fraudulent documents”..................................................22 c. Evidence regarding Katie’s responsibility to bring witnesses .........................................................................24 d. Evidence regarding who actually determined the procedural matters ..........................................................24 e. Whether evidence to resolve the disputed factual issues bear on the issue of “substantial justice” at the hearing ......................................................................27 f. Evidence regarding the reliability of the Investigating Panel Report statements attributed to Hershkowitz and Meeker................................................27 C. NYU Was Not Prejudiced By the Appellate Division Rulings Regarding the Nature of the Expulsion, or as a Result of Not Having an Opportunity to Demonstrate that Katie Would Have Received a Failing Degree Regardless of the Amount of PMV She Generated......................................................................................30 III. THE APPELLATE DIVISION’S REVERSAL OF THE DISMISSAL AND GRANT OF THE PETITION SHOULD BE AFFIRMED .................30 A. The Undisputed Documentary Evidence Proved that NYU Did Not Substantially Follow the 2009 Code ............................................30 B. Because Katie Satisfied All Her Requirements For Graduation, Including Remediating Her Deficiency In PMV Credits, the Appellate Division Correctly Found that Katie’s Expulsion Under the Code Of Conduct Was Unquestionably Disciplinary In Nature..............................................................................................35 iii C. The Appellate Division Acted Within Its Authority to Grant the Petition.................................................................................................40 D. The Appellate Division Correctly Found that the Penalty of Expulsion Was Shocking to One’s Sense of Fairness and is an Alternative Basis Which to Affirm the Reversal of the Dismissal of the Petition .....................................................................44 IV. IF IT WAS REVERSIBLE ERROR NOT LET NYU ANSWER, THIS COURT SHOULD REMIT THIS CASE TO THE APPELLATE DIVISION TO DETERMINE WHEN AND UNDER WHAT TERMS NYU CAN ANSWER........................................................46 CONCLUSION........................................................................................................48 iv TABLE OF AUTHORITIES Cases Page(s) Badr v. Hogan, 75 N.Y.2d 629, 631 (1990) .................................................................................16 Bethelite Cmty. Church v. Dep't of Envtl. Prot. of City of NY, 8 Misc.3d 274, 280 (Sup Ct, N.Y. County 2004) ...............................................41 Blank v. Bd. Of Higher Ed., 51 Misc.2d 724 (Sup. Ct., Kings Co. 1966) .......................................................43 Brun v. Wallach, 42 Misc.3d 1212(A) (Table), 2014 N.Y. Slip Op. 50028(U), 2014 WL 181430, at *5 (N.Y. Sup. Ct. Jan. 16, 2014).......................................................33 Citizens Against Retail Sprawl v. Giza, 280 A.D.2d 234, 240 (4th Dep’t 2001) ..............................................................16 Clogher v. New York Medical College, 112 A.D.3d 574, 574 (2d Dep’t 2013)................................................................43 Cohen v. Cronin, 39 NY2d 42, 44, n* 1976....................................................................................31 Eidlisz v. New York Univ., 61 A.D.3d 473, 475 (1st Dep’t 2009), aff’d as modified, 14 N.Y.3d 730 (2010) ..................................................................................................................43 Ewanciw v Atlas, 65 A.D.3d 1077, 1078 (2d Dep’t 2009)..............................................................16 Gruen v. Chase, 215 A.D.2d 481 (2d Dep’t 1995)........................................................................31 Haynes v. Board of Ed., Cold Springs Harbor Central School Dist., 57 A.D.2d 959, 395 N.Y.S.2d 76 (2d Dep’t 1977).............................................46 v Healy v. Larrson, 67 Misc.2d 374 (Sup. Ct., Schenectady Cnty 1971), aff’d, 42 A.D.2d 1051 (1st Dep’t 1973), aff’d, 35 N.Y.2d 653 (1974)..........................................43 Hollwedel v. Duffy-Mott Co., 263 N.Y. 95, 106 (1933) .....................................................................................41 Kelly v. Safir, 96 N.Y.2d 32, 39 (2001) .....................................................................................21 Kickertz v. New York University, 99 A.D.3d 502 (2012) .........................................................................................10 Kickertz v. NYU (“Kickertz II”), 110 A.D.3d 268, 275 (1st Dep’t 2013) ...................................................10, 14, 46 Loebl v. New York Univ., 255 A.D. 257, 258 (1st Dep’t 1998) ...................................................................31 Matter of Bethelite Community Church, Great Tomorrows Elementary Sch. v. Dept. of Envtl. Protection of City of N.Y., 8 N.Y.3d 1001 (2007)..................41 Matter of Daniel H., 15 N.Y.3d 883, 884 (2010) .................................................................................15 Matter of Nassau BOCES Cent. Council of Teachers v. Bd. of Coop. Educ. Services, 63 N.Y.2d 100, 102 (1984)..................................................................16 McConnell v. Le Moyne Coll., 25 A.D.3d 1066, 1068-69 (4th Dep’t 2006) .......................................................31 Nestorowich v. Ricotta, 97 N.Y.2d 393, 400-01, (2002)...........................................................................16 Northern Westchester Professional Park Associates v. Town of Bedford, 60 N.Y.2d 492, 499 (1983) .................................................................................40 O’Hara v. Del Bello, 47 N.Y.2d 363, 368 (1979) .................................................................................17 vi O'Connor v. Papertsian, 309 N.Y. 465, 471–72 (1956) .............................................................................40 Olsen v. Bd. of Higher Ed., 49 N.Y.2d 408, 414 (1980) .................................................................................43 Rabouin v. Metropolitan Life Ins. Co., 25 A.D.3d 349, 350 (1st Dep’t 2006) .................................................................40 Rich v. Lefkovits, 56 N.Y.2d 276, 283 (1982) .................................................................................16 Rindos v. Board of Educ. of Longwood Cent. School Dist., 20 A.D.3d 572, 573 (2d Dep’t 2005)..................................................................46 Sam and Mary Housing Corp. v. Jo/Sal Market Corp., 100 A.D.2d 901, 903 (2d Dep’t 1984), aff’d. 64 N.Y.2d 1107 (1985) ..............23 Schnaars v. Copiague Union Free School Dist., 275 A.D.2d 462 (2d Dep’t 2000)........................................................................46 Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43, 53 (1999) .....................................................................................40 Susan M. v. New York Law School, 76 N.Y.2d 241, 245 (1990) .................................................................................31 Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 660 (1980) .................................................................................31 Waterbury v. Sturtevant, 18 Wend. 353, 360 (N.Y. Ct. Corr. Errors 1837) ...............................................33 Yenom Corp. v. 155 Wooster St., Inc., 33 A.D.3d 67, 70 (2006) ...............................................................................43, 44 Zannet Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 515 (1st Dep’t 2006) .................................................................20 vii Zartoshti v. Columbia Univ., 79 A.D.3d 470, 471 (1st Dep’t 2010) .................................................................31 Statutes/Regulations/Miscellaneous 22 N.Y.C.R.R. 130-1.1(a) ..................................................................................20, 43 22 N.Y.C.R.R. 130-1.1(c) ........................................................................................44 CPLR § 2002............................................................................................................16 CPLR § 3211(a)(1).....................................................................................................7 CPLR § 3211(a)(7).....................................................................................................7 CPLR § 5601(a) ...................................................................................................2, 15 CPLR § 5613............................................................................................................47 CPLR § 7804(f)....................................................................... 4, 6, 16, 41, 42, 46, 48 Rules of the Board of Regents, Part 29, Unprofessional Conduct § 29.1(b)(10) ....39 1 STATUS OF RELATED LITIGATION On June 3, 2014, Petitioner-Respondent Katie Kickertz perfected her appeal to the Appellate Division, First Department, challenging the final judgment of the Supreme Court on the basis she was not awarded her Doctoral of Dental Surgery degree and attorneys’ fees. On September 10, 2013, the Appellate Division, First Department permitted Katie to replead six causes of action to the extent the allegations were not related to the disciplinary determination. Because the heart of Petitioner-Respondent’s claims concerned her disciplinary expulsion, further litigation of the plenary action was determined to be an ineffective use of resources. PRELMINARY STATEMENT Petitioner-Respondent Katie Kickertz (“Katie”) submits this brief in response to Respondent-Appellant New York University’s (“NYU”) d/b/a New York University College of Dentistry (“NYU Dental College”) appeal from the judgment of the Supreme Court, New York County, dated July 22, 2013, which was limited to declaring the Article 78 petition (“Petition”) granted and the decision to dismiss Katie from the NYU Dental College without the possibility of readmission (“expulsion”) annulled. The Supreme Court entered judgment pursuant to the decision of the Appellate Division, First Department, dated October 11, 2012, which reversed the dismissal of the Petition and ruled that the Petition 2 should be granted, and the Order of the Supreme Court dated June 12, 2013, which limited the relief to only the expulsion being declared annulled. First, NYU’s appeal should be dismissed because this Court does not have subject-matter jurisdiction over the appeal pursuant to CPLR § 5601(a). The double dissent of the Appellate Division agreed on the standard to apply, the BOCES exception, but disagreed whether the facts of this case warranted applying the exception. This is a mixed question of law and fact which does not entitle NYU to an appeal as of right under CPLR § 5601(a) which requires the double dissent to be on a question of law. Second, the Appellate Division’s Order should be affirmed because NYU cannot demonstrate any prejudice to show reversible error. NYU was not prejudiced from having the Petition granted without an answer because (1) NYU moved to dismiss based on its own and the Petition’s documentary evidence, (2) NYU argued that the facts were undisputed that it followed the 2009 Code, and (3) NYU argued that no discovery was necessary or proper and the case should be summarily resolved upon the parties’ submissions. Given the fully developed record on the issue of whether NYU substantially complied with the 2009 Code and NYU’s requests for the lower courts to rule on the issue, NYU cannot subsequently claim prejudice if the decision turns out unfavorable. Any claims of prejudice that NYU makes to this Court are frivolous or immaterial. 3 Third, if this Court reviews this case beyond dissent’s disagreement that the facts of this case did not meet the BOCES exception, this Court should still affirm the decision of the findings of the Appellate Division. The Appellate Division correctly found and analyzed Katie’s expulsion as a disciplinary matter. The expulsion was treated as a disciplinary matter under the Code of Ethics and Professional Conduct (“Code”), not NYU’s academic policy. Katie passed all her academic courses, competency exams, and both parts of the National Board of Dentistry Examinations. The recipient of the Dr. Bernard E. Rudner Memorial Award for superior performance in providing oral comprehensive care and managing a dental practice, Katie was expected to graduate on May 26, 2009. Even after the June 1, 2009 events, Katie continued working in the Clinic to fulfill her Practice Model Values (“PMV”) requirement and fully satisfy her academic requirements. NYU’s retrospective argument that Katie’s expulsion was academic and she would have failed her required clinical course regardless of the amount of PMV she generated is an arbitrary and bad faith argument that must be rejected. Moreover, NYU is not prejudiced from being precluded from making the argument, for either the first time or again. The Appellate Division correctly found that NYU did not substantially comply with its own rules by concluding that the undisputed facts showed that NYU did not substantially comply with either the 2005 or 2009 Code. NYU does 4 not argue on appeal that it complied with 2005 Code. With regard to the 2009 Code, NYU failed to provide Katie with an initial hearing before first making the expulsion decision. The hearing she was later afforded did not substantially conform to the 2009 Code because the evidence against Katie was not presented at the hearing, she was not given a fair opportunity to question witnesses, and procedural matters were not decided by the Peer Review Board (“PRB”). Katie was told that her requests for documents and help from her advisor at the hearing were inappropriate and inconsistent with the rules and that if she persisted, the hearing would not proceed. The Appellate Division found that based on the undisputed facts before the Court, Katie was not afforded the substantial justice at the hearing as she was promised under the Code. Because the Appellate Division’s determination was based on a developed record of undisputed facts, it properly invoked the BOCES exception to CPLR § 7804(f) and granted the Petition without an answer. Unlike other cases where the respondent moved to dismiss on procedural grounds, NYU moved to dismiss the Petition on the merits and based on documentary evidence. The parties briefed the issue of substantial compliance to the rules. Rather than argue it needed to answer, NYU argued that no additional discovery was necessary or proper for the lower courts to summarily decide based on the parties’ submissions. NYU’s claims of prejudice are frivolous or immaterial and Katie is the only party who would be 5 prejudiced by the prolonging of the litigation, both financially and emotionally. Under these circumstances, it is both appropriate and just to grant the Petition without an answer. Although the Appellate Division granted the Petition, the Supreme Court denied the Petition’s requested relief of her degree and attorneys’ fees. That denial is being appealed to the Appellate Division. Thus, this issue is not ripe for review. If this Court does review this issue, the Appellate Division acted within its discretion to make both awards. Because Katie satisfied all her academic requirements, the Appellate Division acted within its discretion to award her degree. The Appellate Division also acted within its discretion to award attorneys’ fees based on NYU’s frivolous conduct, including the meritless affirmative defense it complied with the 2009 Code and false assertions of material fact that Katie admitted to falsifying a patient chart and was notified of her PMV deficiency earlier. Because the Appellate Division had a sound basis to award both her degree and attorneys’ fees, this Court should not disturb those awards. Fourth, if necessary, and as an alternative basis for affirming the Appellate Division’s reversal of the Supreme Court’s dismissal of the Petition, this Court should affirm the Appellate Division’s finding that the Petition stated a claim that the expulsion penalty shocked one’s sense of fairness. In making this finding, the Appellate Division correctly viewed the facts in a light most favorable to Katie and 6 concluded that the premise for the Supreme Court’s holding on this issue was error. The Appellate Division also thoroughly analyzed the factors which contributed to its finding. NYU’s request that the educational institutions should be able to impose penalties that are shocking to one’s sense of fairness should be rejected and the Appellate Division’s finding on this issue, if necessary, should be affirmed. Finally, if it was error for the Appellate Division to not allow NYU answer, this Court should reject NYU’s invitation to vacate the Appellate Division’s finding in its entirety. Instead, the proper procedure would be to remit this case to the Appellate Division to determine when and under what terms NYU can submit an answer. CPLR § 7804(f) permits a court to limit a respondent’s answer “upon such terms as may be just” and it would be unjust to allow NYU to litigate every issue again. QUESTIONS PRESENTED 1. Whether this Court has jurisdiction over NYU’s appeal based on a double dissent whose reasoning involved a mixed question of law and fact. 2. Whether NYU was prejudiced by the Appellate Division granting the Petition without providing it with an opportunity to answer. 3. Whether the Appellate Court correctly reversed the dismissal of the Petition and acted within its discretion to grant the Petition. 7 a. Whether the Appellate Division correctly found that the expulsion decision was not academically based, but was “undeniably disciplinary in nature.” b. Whether the Appellate Division correctly found that NYU did not substantially comply with its own rules. c. Whether the Appellate Division acted within its discretion to grant the Petition. d. Whether the Appellate Division correctly found, as an alternative basis for reversing the dismissal of the Petition, that the expulsion shocked one’s sense of fairness. 4. If it was reversible error for the Appellate Division to not allow NYU to submit an answer, whether this Court should remit this case to the Appellate Division for further proceedings to determine when and under what terms NYU should be permitted to answer. STATEMENT OF FACTS Since 2009, Petitioner-Respondent Katie Kickertz (“Katie”) has been trying to obtain her Doctoral of Dental Surgery (“DDS”) degree denied by Respondent- Appellant New York University (“NYU”) d/b/a New York University College of Dentistry (“NYU Dental College”). (R.639, 648-49). In March 2010, Katie filed a petition commencing an article 78 proceeding (“Petition”). (R.23). The Petition 8 sought to reverse her permanent dismissal from NYU (“expulsion”), reinstate her to the program and award her degree, and attorneys’ fees, disbursements, and other costs. (R.39). Attached to the Petition was the Affidavit of Katie Kickertz dated March 14, 2010 with twenty exhibits annexed to it (“Kickertz Affidavit”) (R.60- 176), as well as the Affidavit of Dr. Eric J. Ploumis dated March 15, 2010 with an additional seven exhibits annexed to it (“Ploumis Affidavit”). (R.177-267). A. NYU’s Motion to Dismiss Based on Documentary Evidence On April 2, 2010, NYU moved to dismiss the Petition pursuant to CPLR 3211(a)(1) and 3211(a)(7). (R.268-69). NYU argued that it had “defenses based on documentary evidence,” which consisted primarily of on the exhibits attached to the Kickertz and Ploumis Affidavits. (R.274). NYU attached exhibits to its motion as documentary evidence to show that the 2009 version of the Code of Ethics and Professional Conduct (“Code”) was adopted and effective during Katie’s disciplinary proceeding. (R.302-17). NYU argued that because NYU “correctly followed the current 2009 procedures in deciding to dismiss Kickertz, its decision [was] not vulnerable to attack.” (R.287). NYU based this argument on the “[d]ocuments, including the exhibits to the Kickertz and Ploumis Affidavits, [which] show . . . that the College of Dentistry followed its applicable rules in the disciplinary proceeding against 9 Kickertz.” (R.285). NYU’s motion papers cited to thirteen of the twenty exhibits attached to the Kickertz Affidavit. (R.277-81, 86). In opposition to NYU’s motion, Katie disputed that she admitted to falsifying patient treatment records, and noted that the encounter forms were part of the Clinic records for the Practice Model Values (“PMV”) requirement. (R.462- 64).1 Katie disputed whether the 2005 Code was replaced with the 2009 Code (R.468-70), but still addressed NYU’s argument that it complied under the 2009 Code. (R.470-71). In its reply, NYU further addressed whether it complied with the 2009 Code. (R.626). NYU argued that there should not be discovery and the court should summarily resolve the case upon the parties’ submissions. (R.627). The parties fully briefed whether the expulsion penalty shocked one’s sense of fairness. (R.291-92, 473-76, 628). B. Justice Schlesinger Dismisses the Petition Justice Schlesinger granted NYU’s motion to dismiss the Petition on the grounds that “NYU substantially complied with the guidelines and procedures set forth in the Code of Ethics in effect at the time of the proceedings,” and because 1 NYU’s statement of facts claims, without citation, that Katie admitted to making the fraudulent entries in one patient’s chart. (Appellant’s Br. at 14). In a footnote, NYU discussed that Katie disputes that she falsified the patient chart. However, even in the footnote NYU falsely makes it appear as if Katie is just “now” contesting the making of the entry. (Appellant’s Br. at 15 n.5). 10 the court did not find that the expulsion shocked one’s sense of fairness. (R.4, 11- 14). C. The Appellate Division Reverses the Petition’s Dismissal and Grants the Petition The Appellate Division, First Department (“Appellate Division”) reversed and vacated the dismissal of the Petition, annulled NYU’s disciplinary expulsion, and granted the Petition (“Appellate Order”).2 (R.639-40, 663); see also Kickertz v. NYU (“Kickertz II”), 110 A.D.3d 268, 275 (1st Dep’t 2013). 1. The Undisputed Facts Before the Appellate Division “After passing all of her academic courses, competency exams, and both parts of the National Board of Dentistry Examinations,” the night before graduation, Katie received an email from Dr. Harry Meeker, her group practice director at the NYU Dental College General Dentistry Clinic (“Clinic”). (R.641). This email advised Katie that Meeker was “uncertain” about Katie’s status for graduation and that she still “owed” him something. (R.117, 642). Meeker was referring to Katie owing credits for her PMV requirement. (R.641). PMV credits were “not based on hours of service” but instead on “defined production levels/goals” measured by the amount of revenue a student generated for the Clinic. (R.83-85, 641-42). 2 Citations to the Appellate Order are made to the Record. The official citation to the Appellate Order is Kickertz v. New York University, 99 A.D.3d 502 (2012). 11 The day after graduation, Meeker emailed Katie with more specific information about her shortfall. (R.118, 643). Meeker told Katie her “PMV requirement as of today is $19,093 and the target is $21,000.” (R.118, 643). Meeker told Katie she should come back to the Clinic to make up the requirement before her diploma could be awarded even though Katie had already left New York for Boston to start her post-graduate residency orientation. (R.101, 118, 643-44). On June 1, 2009, Katie returned to the Clinic and met with Meeker and another instructor, Dr. David Hershkowitz. (R.114-15, 642, 645). After the meeting, Katie paid her PMV shortfall from her own funds. (R.114-15, 166, 646). To make the payment, Katie gave Luz Tartaglia, Hershkowitz’s secretary, “four encounter forms for a total of $2,050, and paid $200 in cash and $1,850 on her credit card, which Tartaglia accepted with full knowledge that [Katie] was paying the fees from her own funds.” (R.114-15, 166, 645-46). Katie does not deny creating the four encounter forms, but at all times denied that she falsified any patient chart or records. (R.166, 647). On July 16, 2009, NYU sent Katie “a letter notifying her that ‘the [Peer Review Board (“PRB”)] convened and, based upon the report of its Investigation Panel, determined that [Katie] made a fraudulent entry in a patient’s chart and, in addition, forged fraudulent treatment records for multiple patients.” (R.113, 647). “Based upon this finding, the [PRB] has recommended that [Katie] be dismissed 12 from the [NYU].” (R.113, 647). “The letter further advised [Katie] that the College Review Board had ‘determined that the investigation was thorough and the sanction reasonable and appropriate.’” (R.113, 647). Katie objected to this decision on the ground she was not afforded a hearing before the determination was made, as required by the Code. (R.647). “NYU withdrew the July 2009 determination because it had admittedly failed to follow its own internal procedures . . . .” (R.647). In advance of the hearing date, Katie requested a reasonable accommodation to allow her adviser to question witnesses and summarize documents on her behalf. Katie also requested various documents. (R.155-56, 653-54). Both of these requests were denied by Dr. Anthony Palatta, Assistant Dean of Student Affairs and Admissions. (R.157, 654). On October 7, 2009, the PRB held a “‘hearing’ and voted unanimously to dismiss [Katie], without possibility of reinstatement.” (R.74, 648). Neither Meeker, Hershkowitz, nor Tartaglia testified at the hearing – the case against Katie was based on the written Investigating Panel Report. (R.75-77, 652). The Investigating Panel Report contained hearsay that was not subject to cross-examination. (R.75- 77, 653). The allegedly fraudulent patient chart and encounter forms were not annexed to the Investigating Panel Report and there was nothing in the record 13 indicating those documents were reviewed by the investigators or the statements in the report were reliable. (R.75-77, 114-19, 652). “The College Review Board, consisting of three faculty members, [] confirmed that decision by a majority vote.” (R.159, 648). Palatta informed Katie of the decision and of her right to appeal to the dean of the NYU Dental College, Charles Bertolami. (R.159, 648). Katie appealed, but Bertolami upheld the decision. (R.161-73, 648). “[B]efore the PRB made its findings, Katie was instructed to go to the clinic and complete her PMV requirement.” (R.648). Even though she reached her PMV goal in early June, she was required to keep coming to Clinic to earn more PMV credits. (R.67-68, 94-96, 103, 648-49). Katie ultimately generated PMV well in excess of her $21,000 requirement. (R.649). As a result of completing her PMV requirement, Katie “satisfied all academic requirements for graduation.” (R.64, 103, 164-65, 172, 649). D. The Appellate Division’s Findings Based on the undisputed facts, the Appellate Division found that Katie’s expulsion was “undeniably disciplinary in nature.” (R.649). Applying a court’s traditionally limited review of disciplinary decisions, the Appellate Division found that the “facts, fully set forth in the record, establish NYU did not substantially comply with its own published guidelines and policies, whether judged under the 14 2005 Code or the 2009 Code.” (R.195, 201); see also Kickertz II, 110 A.D.3d at 275. Because there was a failure to substantially comply with either the 2005 Code or 2009 Code, the Appellate Division held “there [was] no need to remand to determine which code should have applied.” (R.656); see also Kickertz II, 110 A.D.3d at 275-76 & n.2. Based on the lack of substantial compliance with its published guidelines, the Appellate Division held that NYU’s disciplinary determination “must be annulled.” (R.656). Although unnecessary to the granting of the Petition, the Appellate Division added that even if NYU had substantially complied, the penalty of expulsion was shocking to one’s sense of fairness. (R.657); see also Kickertz II, 110 A.D.3d at 276. The Appellate Division based its finding on: Katie’s “exemplary” academic performance at NYU (R.658); the incident was at worst a single lapse of judgment in the face of extraordinary pressure (R.658); Katie was left without a “degree of any kind after seven years of educational toil and the expenditure of hundreds of thousands of dollars” (R.658); NYU did not give due weight to extenuating circumstances, grounded in the Code, regarding Katie’s treatment at NYU (R.659); and Katie’s penalty was more severe compared to similarly situated students. (R.659); see also Kickertz II, 110 A.D.3d at 276. 15 E. Final Judgment of the Supreme Court On July 22, 2013, the Supreme Court entered judgment in favor of Katie, declaring that the Petition was granted and the decision to expel Katie was annulled pursuant to the October 11, 2012 decision of the Appellate Division and the June 12, 2013 order of the Supreme Court. (R.636). The judgment did not award Katie her degree or attorneys’ fees. (R.39, 636). Katie is appeal the June 12, 2013 order of the Supreme Court and July 22, 2013 judgment to the First Department. ARGUMENT I. THIS COURT DOES NOT HAVE JURISDICTION OVER NYU’S APPEAL BECAUSE THE DOUBLE DISSENT WAS ON A MIXED ISSUE OF LAW AND FACT NYU does not have an appeal as of right to this Court under CPLR § 5601(a). Section 5601(a) requires a double dissent on a question of law. In Matter of Daniel H., this Court held that an issue which presents a “mixed question of law and fact” could not serve as a basis for an appeal under CPLR § 5601(a). Matter of Daniel H., 15 N.Y.3d 883, 884 (2010). Here, the Appellate Division agreed on the law, but disagreed on the application of the facts to the law. (R.656 (stating that the “dissent finds the exception [to the statutory mandate] does not apply.”)). This is a mixed question of law and fact. Because the Appellate Division’s double dissent was not on an issue 16 of law, this Court should dismiss NYU’s appeal for lack of subject matter jurisdiction. II. NO SUBSTANTIAL RIGHT OF NYU WAS PREJUDICED BY NOT BEING ABLE TO ANSWER No reversible error exists here because NYU cannot demonstrate that it was prejudiced by not being able to answer. CPLR § 2002 provides that “[a]n error in a ruling of the court shall be disregarded if a substantial right of a party is not prejudiced.” See Nestorowich v. Ricotta, 97 N.Y.2d 393, 400-01, (2002) (error is “harmless” where there is “ample evidence” to support the judgment or ruling of the court); Badr v. Hogan, 75 N.Y.2d 629, 631 (1990) (error must have “bearing on the critical issue” in order for error to be “sufficiently prejudicial” to warrant “reversible error”); Ewanciw v Atlas, 65 A.D.3d 1077, 1078 (2d Dep’t 2009). Thus, to warrant reversal based on an error NYU must show some disadvantage or harm as a result of the ruling. This Court in Matter of Nassau BOCES recognized that the mandate of CPLR § 7804(f) could be disregarded where there is no prejudice because the facts are undisputed. Matter of Nassau BOCES Cent. Council of Teachers v. Bd. of Coop. Educ. Services, 63 N.Y.2d 100, 102 (1984); see also Citizens Against Retail Sprawl v. Giza, 280 A.D.2d 234, 240 (4th Dep’t 2001) (concluding that “no prejudice will result from the failure to permit respondents to answer the petition”). This Court has applied a prejudice analysis to other contexts as well. Rich v. 17 Lefkovits, 56 N.Y.2d 276, 283 (1982) (reviewing whether defendant was prejudiced from the lack of notice before converting a pre-answer motion to dismiss to one for summary judgment); O’Hara v. Del Bello, 47 N.Y.2d 363, 368 (1979). Here, NYU cannot demonstrate any prejudice because it moved to dismiss based on documentary evidence, argued no additional discovery should be allowed, and requested the case be summarily resolved on the parties’ submissions. Now faced with an adverse ruling, NYU backtracks and claims it was prejudiced because: (a) it was precluded from litigating the case and defending the Petition on the merits; (b) it could not provide particular evidence; and (c) it was not given an opportunity to demonstrate the academic aspect of the PMV requirement or that Katie would have failed her required clinical course regardless of the amount of PMV she generated. These claims of prejudice are unavailing. The first two claims of prejudice are discussed below and the third way is discussed infra Section III.B. A. NYU Had a Full and Fair Opportunity to Litigate NYU claims it was prejudiced because it was precluded from litigating its case and defending the Petition on the merits. (R.38, 42, 50-51). This argument is frivolous because NYU vigorously attacked the merits of the Petition. Relying on its own documentary evidence attached to the Petition, NYU argued that it complied with the 2009 Code. (R.274-92). NYU relied on documentary evidence 18 for its statement of facts (R.277), and cited in its memorandum of law thirteen of the twenty exhibits attached to the Kickertz Affidavit. (R.277-81, 86). After reciting the facts from the documentary evidence, NYU made repeated claims that this evidence demonstrated NYU substantially complied with its rules: “On their face, certain of the Exhibits to the Kickertz and Ploumis Affidavits show that . . . . the Unversity followed its applicable rules in investigating and hearing the allegations against Kickertz . . . .” (R.275). “Kickertz cannot allege any bona fide deficiency in the procedures the College followed in connection with her dismissal, since the College followed the published rules that were in effect at the relevant time.” (R.281-82). “For all of these reasons, as we show below, and based on the documentary evidence, including documents that Kickertz has submitted as exhibits to her affidavit, and the College’s applicable disciplinary rules annexed to the Ploumis and Palatta Affidavits, the College has defenses to Kickertz’s claims. As a matter of law, Kickertz is entitled only to a hearing in accordance with the College’s established procedures, which she has already received.” (R.284). “Documents, including the exhibits to the Kickertz and Ploumis Affidavits, show . . . that the College of Dentistry followed its applicable rules in the disciplinary proceeding against Kickertz. Accordingly, the University has a complete defense to Kickertz’s claim, based on documentary evidence.” (R.285) “Because the College correctly followed the current 2009 procedures in deciding to dismiss Kickertz, its decision is not 19 vulnerable to attack, and Kickertz’s petition, to the extent it alleges procedural irregularities, is without merit.” (R.287). “Kickertz has no legitimate argument that the College did not substantially follow the applicable rules in her case. Her petition is, therefore, without merit.” (R.288). Katie responded to NYU’s argument that it complied with the 2009 Code by arguing where NYU did not comply. (R.470-72). On reply, NYU continued to litigate the merits of its substantial compliance with the Code, addressing the PRB’s reliance on only the Investigation Panel Report (R.620), Palatta’s control of the disciplinary proceedings (R.624), the failure to provide a fair opportunity to cross-examine witnesses (R.625), the failure to provide documents (R.626), and the failure to provide reasonable accommodations (R.625-26). Additionally, NYU argued that no additional evidence was necessary or warranted to resolve any issues in the Petition. (R.627). NYU argued that Katie should receive no discovery and the case should be summarily resolved upon the parties’ submissions. (R.627). NYU argues that it did not contest or dispute Katie’s factual allegations, since the Supreme Court would have to accept them as true. (Appellant’s Br. at 2, 21).3 But in its motion to dismiss, NYU argued that “[t]he law is clear that [the Supreme Court] is ‘not required to accept factual allegations that are contradicted by documentary evidence, or legal conclusions that are unsupportable in the face of 3 NYU does not cite to the record to support this statement. 20 undisputed facts.’” (R.285 citing Zannet Lombardier, Ltd. v. Maslow, 29 A.D.3d 495, 515 (1st Dep’t 2006)). Thus, NYU’s argument that it was prejudiced “because it had no opportunity to present the facts supporting its action or defend the petition on the merits” is frivolous because: (1) it asserts material factual statements that are false, (2) it is undertaken to primarily delay or prolong this litigation in an effort to break the resolve of young, highly indebted woman, (R.172) and (3) NYU previously argued there was no need for discovery. See 22 N.Y.C.R.R. 130-1.1(a). This frivolous argument does not establish the necessary prejudice to reverse. B. There Is No Prejudice To NYU Based on Its Inability To Offer Certain Evidence NYU argues that if it were given an opportunity to answer, it would provide an assortment of evidence. Much of this argument is flawed because NYU premises it on a misconceived notion that it can remedy the failure to offer evidence at the hearing by later offering that evidence. The 2009 Code is clear in requiring that such things as charges and supporting evidence are to be presented at the hearing and that the hearing itself should afford substantial justice. (R.155-57, 652, 655). It was undisputed that the only document submitted to the PRB was the Investigation Panel Report. (R.157). NYU did not present any witnesses or other documents at the PRB hearing. (R.75-77, 652-55). Thus, even if there were other witnesses or evidence that NYU could have submitted, it would be improper, as the 21 Appellate Division found,4 for NYU to produce them for the first time in the article 78 proceeding. (R.656). Assuming arguendo that NYU could produce evidence for the first time in this article 78 proceeding, the evidence NYU contends it would produce does not demonstrate prejudice because the evidence does not concern a material issue of fact. a. Evidence that Katie falsified the chart and treatment records NYU contends that if it were given an opportunity to answer, it would provide additional evidence that Kickertz falsified the chart and treatment records. (Appellant’s Br. at 47). However, Katie admitted to creating the encounter forms, so additional evidence on this matter would be immaterial. (R.647). As to the falsified patient chart, the Appellate Division found fault with the fact that it was not annexed to the Investigating Panel Report or offered as evidence during the PRB hearing. (R.652, 656). NYU cannot offer evidence that the chart was annexed to the Investing Panel Report or offered as evidence during the PRB hearing because – it is undisputed it was not offered. (R.114-19, 157). 4 Although NYU correctly points out that Kelly v. Safir, 96 N.Y.2d 32, 39 (2001) involves the review of an administrative agency decision, (Appellant’s Br. at 47), Safir’s limited review of the facts and record before the agency hearing level is equally applicable here where the court is reviewing whether NYU followed its own rules at the hearing. 22 b. Evidence that the investigators reviewed the “fraudulent documents” NYU says it would provide additional evidence that the investigators reviewed the “fraudulent documents.” (Appellant’s Br. 47). NYU does not explain how this additional evidence, only from the investigators, is material. Even if the investigators reviewed the documents, the undisputed fact would remain that the documents were not attached to the Investigating Panel Report or introduced at the PRB hearing. (R.114-19, 157). Moreover, the existence of such evidence is highly suspect because Hershkowitz’s June 1, 2009 email states that the four encounter forms were thrown away. (R.114). Thus, unless Hershkowitz was lying in his email, it would be impossible for the investigators to have reviewed “fraudulent documents.” (R.114). As to the falsified patient chart (singular), the Investigation Panel Report only notes that Hershkowitz was in possession of the photocopy of the chart entry – it does not indicate that the chart entry was shared with or reviewed by the investigators. (R.115). Had the investigators reviewed the falsified chart, which was produced to the Supreme Court on remittitur, it would have been obvious that Katie’s student number was not next to the entry as both Hershkowitz contended in his June 1, 2009 email and NYU continues to falsely assert on this appeal, (Appellant’s Br. at 12; R.114): 23 5 Thus, the existence of any evidence that the investigators reviewed “fraudulent documents” is belied by the record and common sense. Moreover, the only one who was prejudiced by any lack of production was Katie. Hershkowitz’s June 1, 2009 email directly implicated Katie by asserting that even though the signatures next to the entry were not legible, Katie’s student’s number was legible. (R.114). But why would Katie distort her easily recognizable signature (see R.82), while nonetheless writing her student number legibly next to it? If Katie’s student number was not next to the entry, why would Hershkowitz write to Wolff that it was? The failure to produce the actual falsified chart before Katie’s expulsion only prejudiced Katie because she could not defend herself 5 “In New York, courts may take judicial notice of a record in the same court of either the pending matter or of some other action.” Sam and Mary Housing Corp. v. Jo/Sal Market Corp., 100 A.D.2d 901, 903 (2d Dep’t 1984), aff’d. 64 N.Y.2d 1107 (1985). This allegedly falsified chart is located at page 132 of the record presently before the Appellate Division. It would be an injustice to permit NYU to continue to make false assertions with impunity. 24 against Hershkowitz’s accusations. NYU cannot remedy this prejudice to Katie by producing the chart now, and NYU certainly has suffered no prejudice by not being able to submit the chart as part of an answer. c. Evidence regarding Katie’s responsibility to bring witnesses NYU argues that if it were permitted to answer, it would show that Katie’s requests for witnesses were not denied, but she was instructed it was her responsibility to contact the witnesses and tell them the location and time of the hearing. (Appellant’s Br. at 48). However, NYU’s desire to introduce this evidence is premised on NYU’s distortion of who was responsible for presenting evidence. The Appellate Division found that the 2009 Code required the charges and supporting evidence to be presented by the Investigating Panel. (R.652). NYU’s argument highlights that it failed to fulfill its responsibility to present evidence. d. Evidence regarding who actually determined the procedural matters NYU argues that “it is not clear” who actually made the decisions Palatta relayed and absent other evidence, such as the PRB hearing record or the testimony of Palatta, there is no way of knowing what communications may have taken place and who made these decisions. (Appellant’s Br. at 48). First, NYU does not affirmatively argue that it was prejudiced from not being able to introduce evidence to show it was not Palatta who actually determined matters of procedure the Appellant Division attributed to him. (Appellant’s Br. at 49). Second, this 25 speculative argument fails because NYU relied on documentary evidence showing Palatta made these decisions. (R.157). Palatta, in advance of the PRB hearing, determined that allowing anyone to ask questions on Katie’s behalf was inappropriate and inconsistent with the relevant rules. (R.157).6 Palatta also informed Katie that if she did not abide by the rules the hearing would not take place. (R.157-58). Palatta made these determinations since he does not say they were made after consulting the PRB or inform Katie they are subject to a determination by the PRB. (R.157). Rather, Palatta says the decisions are “not going to change” and the hearing will not proceed if she does not follow the rules. (R.157-58). NYU argues that the Appellate Division ignored the fact that Kickertz addressed the procedural questions to Palatta and that it would have been improper for Palatta not to respond to Katie. (R.63). NYU takes a logical leap in this argument and assumes that just because it was proper to respond, his responses were proper. A proper response from Palatta would have been to direct Katie’s requests to the PRB, not deny them himself, as “[a]ll matters of procedure not specified in this Code shall be decided by the [PRB] at its discretion.” (R.265). 6 NYU writes in its preliminary statement that at the hearing “Kickertz and her faculty adviser had a chance to respond to the charges against her.” (Appellant’s Br. at 1 (emphasis added)). This statement is false. (R.322-23). 26 Apparently accepting the obvious fact that Palatta was acting independently, NYU argues that Palatta was “simply informing Kickertz of the procedures already set forth in the Code, rather than making decisions on new procedural matters.” (Appellant’s Br. at 63). But NYU’s absurd arguments are based on contorted provisions of the 2009 Code. Thus, they would not create a material issue of fact. First, NYU argues that Palatta’s refusal to allow Katie’s advisor to ask questions at the hearing was really Palatta informing Katie of the 2009 Code’s requirement that the questions be posed through the PRB Chair. (Appellant’s Br. at 63). But NYU omits that the 2009 Code only requires the questions to be asked through the PRB Chair “unless the Chair determines otherwise.” (R.265). Thus, the PRB Chair had discretion to allow the questioning. (R.265). It is absurd to read Palatta’s writing as NYU does when Palatta called Katie’s request “inappropriate, and inconsistent with the relevant rules.” (R.157). Palatta also threatened that the hearing would not proceed if Katie did not abide by the rules. (R.158). But no provision in the 2009 Code provided Palatta with the ability to threaten the cancellation. (R.264-65). The 2009 Code specifically states that even if a student does not answer the charges or appear at the hearing, it must proceed with the hearing before imposing disciplinary penalties. (R.265). Palatta was not simply informing Katie of the rules, he was fabricating them. Thus, NYU cannot use absurd arguments to demonstrate it was 27 prejudiced by the finding of the Appellate Division when the finding was based on its own documentary evidence.7 e. Whether evidence to resolve the disputed factual issues bear on the issue of “substantial justice” at the hearing NYU argues that the disputed factual issues acknowledged by the Appellate Division need to be resolved in order to determine whether Katie received “substantial justice.” (Appellant’s Br. at 46). But the Appellate Division determination was only with respect to the PRB hearing itself, because the 2009 Code required that “[t]he hearing shall be conducted in a manner to achieve substantial justice . . . .” (R.265). The fact that PRB did not require the production of the witnesses or evidence to resolve the disputed circumstances surrounding Katie’s charges means that the hearing itself was not conducted in a manner to achieve substantial justice. Thus, the existence of factual issues only supports the Appellate Division’s finding that substantial justice was not afforded. f. Evidence regarding the reliability of the Investigating Panel Report statements attributed to Hershkowitz and Meeker NYU cannot show that it was prejudiced by not being able to provide evidence demonstrating the reliability of the statements Hershkowitz and Meeker purportedly made to the Investigating Panel. (R.652). First, this evidence is 7 Even if Pallata or the PRB Chair were willing to testify that the PRB made the procedural decisions, which is highly suspect, the fact remains that the decisions were wrong and did not substantially comply with the relevant rules. 28 inherently unreliable because it is hearsay and not subject to any exception. Second, the document itself creates a question of the reliability, which makes it impossible for NYU to prove its reliability. The Investigating Panel Report contains inconsistencies between Hershkowitz’s June 1, 2009 email to Wolff recounting the events of that day and the Investigating Panel interview summaries later with Hershkowitz and Meeker. The following chart shows the inconsistencies: Hershkowitz’s June 1, 2009 Email to Wolff Investigating Panel Interview with Hershkowitz Investigating Panel Interview with Meeker Katie’s Return to the Clinic Katie was contacted by Meeker, in Hershkowitz’s presence, and told to return to the school for the afternoon session. (R.14). Does not discuss how Katie came to meet with Hershkowitz, just starts with, “When DH first met KK after the incident . . . ” (R.115). “HM [] looked for KK. KK was in 4S conference room, so she was asked to come to HM’s office.” (R.116). First Meeting Between Hershkowitz, Meeker, Comejo, and Katie “When confronted with the charts and her fraudulent entry of treatment and signatures, the student finally told the truth and admitted that she ‘Did Not Perform any Extractions.’” (R.114). Denied not treating patients and “[w]hen KK was confronted further, she admitted that she did not see 2 of the patients, but she insisted that she did two extractions with an OS resident and the bleaching. “(R.115). Katie repeatedly denied not seeing the patients and when confronted with the fraudulent chart, admitted that she wrote it but did the extractions. (R.117). Later Katie admitted she did not see two of the patients, but insisted that she did the bleaching and saw one patient for 29 extractions, even though both Hershkowitz and Meeker told her they had proof the patients were not seen. (R.117). The discussion ended with KK leaving the room. (R.117). Second Meeting Between Hershkowitz and Katie At a second meeting about a half hour later between only Hershkowitz and Katie: “Again the student stated that she was Sorry; that she had not performed any treatment that day.” (R.114). “When DH met KK the second time on that day, KK finally admitted that she did not do any treatment that day.” (R.115). Does not discuss As shown in the chart, Katie could not admit she did not do any extraction during the first meeting while at the same time insisting she performed some. Because NYU would have the impossible task of proving the completely inconsistent statements are reliable, NYU is not prejudiced by not offering evidence regarding reliability. Similarly, the Appellate Division did not need to resolve the issue of reliability before concluding that the submission of the Investigating Panel Report did not comply with 2009 Code’s requirement that the actual evidence against Katie be presented at the hearing and that the hearing provide Katie with “substantial justice.” (R.265). 30 C. NYU Was Not Prejudiced By the Appellate Division Rulings Regarding the Nature of the Expulsion, or as a Result of Not Having an Opportunity to Demonstrate that Katie Would Have Received a Failing Degree Regardless of the Amount of PMV She Generated NYU claims it was prejudiced by the Appellate Division’s ruling that the expulsion was “undeniably disciplinary in nature” and because it could not show, that because of her conduct, Katie would have failed her required clinical course regardless of the amount of PMV she generated. As addressed fully infra Section III.B, this argument is without merit because: (1) the Appellate Division’s ruling on the issue was correct; (2) NYU’s argument that Katie would have received a failing grade despite returning and completing her PMV requirement is an arbitrary and bad faith argument; and (3) this Court can take judicial notice that NYU did make this argument on remittitur. Because there was no prejudice to NYU from not being provided an opportunity to answer, there is no reversible error. III. THE APPELLATE DIVISION’S REVERSAL OF THE DISMISSAL AND GRANT OF THE PETITION SHOULD BE AFFIRMED The Appellate Division correctly held that the undisputed facts showed NYU did not substantially comply with its Code under either 2005 or 2009 version. NYU does not argue that the Appellate Division incorrectly found it failed to comply under the 2005 version of the Code. This means the issue of whether the 2005 Code applied instead of the 2009 Code is irrelevant to this appeal because it 31 is deemed resolved that NYU would not have complied under the 2005 Code.8 Thus, this Court need only consider whether the Appellate Division correctly found that NYU did not comply with the 2009 Code, and its granting of the Petition without an answer was proper. Alternatively, even if NYU substantially complied with the 2009 Code, this Court can uphold the Appellate Division’s reversal of the Petition’s dismissal on the basis that the penalty is shocking to one’s sense of fairness. A. The Undisputed Documentary Evidence Proved that NYU Did Not Substantially Follow the 2009 Code “[W]hen a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension or expulsion that procedure must be substantially observed.” Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 660 (1980); Susan M. v. New York Law School, 76 N.Y.2d 241, 245 (1990) (noting difference between reviewing academic performance versus discipline); Zartoshti v. Columbia Univ., 79 A.D.3d 470, 471 (1st Dep’t 2010); McConnell v. Le Moyne Coll., 25 A.D.3d 1066, 1068-69 (4th Dep’t 2006); Loebl v. New York Univ., 255 A.D. 257, 258 (1st Dep’t 1998) (stating that “an institution such as New York University is held to the standard of ‘substantial compliance’ in following its own rules and procedures”); Gruen v. Chase, 215 A.D.2d 481 (2d Dep’t 1995). 8 Since NYU has not argued that the Appellate Division’s deicison that it did not comply with the 2005 Code was, it has waived this argument on appeal. See Cohen v. Cronin, 39 NY2d 42, 44, n* 1976. 32 The undisputed evidence before the Appellate Division was that NYU did not substantially follow its 2009 Code. NYU admitted to not initially providing any hearing before making the expulsion decision. (R.113, 651). This initial error was exasperated by the fact that the College Review Board did not find any procedural defects in PRB’s initial determination. (R.113). Specifically, the 2009 Code requires the College Review Board “to determine whether the process used by the PRB followed the procedures as outlined [in the Code].” (R.264). The College Review Board, however, only “determined that the investigation was thorough and the sanction reasonable and appropriate.” (R.113). Thus, NYU’s failure to afford an initial hearing was a failure to follow the applicable rules on multiple levels. After Katie’s objection to the lack of a hearing, NYU perfunctorily held a hearing. However, the evidence supporting Katie’s charges were not presented by the Investigating Panel. (R.265, 652). For example, Katie was charged with forging patient treatment records, but the treatment records were not offered as evidence. (R.159). Similarly, Katie was charged with making payments she knew to be false, but no testimony from the witnesses who knew about or accepted the payments was given at the hearing. (R.652). NYU’s suggestion that the Investigating Panel Report was a substitute for introducing evidence at the hearing is contradicted by the 2009 Code. (Appellant’s Br. at 58). The 2009 Code is clear that the written report with the “summary” of 33 the Investigating Panel’s finding is to be used to determine whether to initiate formal disciplinary proceedings – it is not a substitute for the “evidence” to be used at the proceeding. (R.264-65); see Waterbury v. Sturtevant, 18 Wend. 353, 360 (N.Y. Ct. Corr. Errors 1837) (“… hearsay is not evidence.”); Brun v. Wallach, 42 Misc.3d 1212(A) (Table), 2014 N.Y. Slip Op. 50028(U), 2014 WL 181430, at *5 (N.Y. Sup. Ct. Jan. 16, 2014) (“…hearsay is not ‘evidence[]’”). NYU, apparently having determined Katie’s guilt and punishment prior to the hearing, decided not to follow the rules and used the Investigation Panel Report instead of the actual evidence. The failure to submit the actual evidence prejudiced Katie because she was denied the opportunity to defend against the accusations and a fair opportunity to cross-examine witnesses. (R.265). The Appellate Division also found a lack of substantial compliance with the 2009 Code because the undisputed evidence showed that Palatta, instead of the PRB, made procedural rulings in advance of the hearing. (R.653). Palatta informed Katie that her repeated requests have someone ask questions on her behalf were “inappropriate, and inconsistent with the relevant rules.” (R.157). Palatta made clear that the response to this request was “not going to change.” (R.157). Palatta also threatened to abort the hearing if she did not concede to his ruling. (R.158). This usurpation of power by Palatta was inconsistent with the 2009 Code designed 34 to give students the opportunity to take responsibility for handling infractions of the Code and left all matters of procedure to the PRB’s discretion. (R.260).9 The Appellate Division found based on the undisputed record before it, the hearing Katie received was not conducted in a manner to achieve substantial justice. (R.653). NYU argues that Katie only had the right to question witnesses “actually presented at the hearing.” (Appellant’s Br. at 62). While logically it makes sense that Katie can only question witnesses that are at the hearing, the Code does not support NYU’s argument that it can decide to forgo presenting witnesses and thwart an accused’s ability to question her accusers. The Code requires evidence to be presented at the hearing, whether or not a student attends the hearing. (R.265). The Code only gives the PRB the power to limit witnesses and affidavits; it does not give the PRB the right to do away with them altogether. (R.265). The Code should also be construed so the hearing provides substantial justice. A fair opportunity to question your accusers and the effective assistance of counsel are fundamental rights in the adversarial process. U.S. CONST. AM. VI. Katie, who was deprived of these fundamental rights, did not receive substantial justice. Thus, the Appellate Division correctly found that NYU did not substantially comply under the 2009 Code. 9 Even if Katie could repeat her denied requests to the PRB, the PRB members, who Palatta may have selected (R.262), would be constrained to overrule his decision. 35 B. Because Katie Satisfied All Her Requirements For Graduation, Including Remediating Her Deficiency In PMV Credits, the Appellate Division Correctly Found that Katie’s Expulsion Under the Code Of Conduct Was Unquestionably Disciplinary In Nature NYU argues that the Appellate Division wrongly treated Katie’s expulsion as a disciplinary matter rather than an academic one. But the undisputed facts show that NYU treated the expulsion as a disciplinary matter. (R.103-04). Katie also satisfied her academic requirements despite the events of June 1, 2009, thus reinforcing her expulsion was a disciplinary decision. Beginning in the 2005-06 academic year, NYU Dental College began to require third and fourth year dental students “to meet defined production level/goals” aimed at increasing student productivity and revenue in the clinics. (R.83-85). This PMV requirement was measured by the amount of revenue a dental student generated from self-pay fees. (R.85, 94). Toward the end of the 2005-06 academic year, the NYU Dental College Space and Revenue Committee noted that students felt “exploited over [the] pressure to generate income in clinics, feel ‘overwhelmed,’ and they pay too much [to] feel like ‘mules.” (R.249). Despite these observations, no decision was made to abandon the PMV requirement, noting that “[r]esentment may fade,” the faculty felt “there is significant growth potential,” and the “Clinic income will have to be a big revenue source.” (R..249). 36 On May 27, 2009, Meeker wrote Katie that her PMV requirement as of that date was $19,093 and the target was $21,000. (R.101). Meeker wrote: “You should come back to make the requirement before your diploma can be awarded.” (R.101 (emphasis added)). On June 1, 2009, Katie returned to the Clinic, and based on her understanding of conversations with Meeker and Hershkowitz, paid $2,050 to cover the PMV shortfall by creating treatment encounter forms for the receptionist to enter payment. (R.166). Hershkowitz reported this event to Palatta, who subsequently convened an Investigating Panel of the PRB. (R.114). On June 2, 2009, Katie returned to the Clinic to fulfill her PMV goal. (R.67, 648). Katie reached her required PMV goal of $21,000 on June 8, 2009. (R.68, 94, 648).10 Despite reaching her goal, Katie continued working at the Clinic during the summer. (R.68, 95). It is undisputed that besides her PMV requirement, Katie was set to graduate on May 26, 2009. (R.64-65, 101, 164-65). The Appellate Division correctly found based on the undisputed record before it that Katie “had satisfied all academic requirements for graduation.” (R.649). The Appellate Division also correctly characterized Katie’s expulsion, “based on charges of ‘inappropriate professional behavior,’ under a Code of Ethics,” as being “undeniably disciplinary in nature.” (R.649). 10 NYU has not refunded Katie her $2,005 payment, thus that amount is reflected in her PMV total. Deducting the $2,050 payment from her fourth year to date amount as of June 9, 2009 ($23,468), Katie had $21,418 in earned PMV credits as of that date. 37 NYU argues that it was “deprived of any opportunity to demonstrate the academic purposes served by the PMV requirement and the College’s clinical program.” (Appellant’s Br. at 44). This argument is a red-herring because the expulsion was treated as a disciplinary decision. It was not made under NYU’s academic policy, and Katie was able to satisfy her academic requirements by continuing to work at the Clinic after the June 1, 2009 events and she satisfied her PMV goal through treating patients. The argument is also a red-herring because the Appellate Division did not find that there was no academic value at all to the PMV requirement. Rather, the Appellate Division questioned whether the intent behind the requirement was to generate revenue for the Dental College. (R.640-41). The documentary evidence shows that Katie’s expulsion was treated as a disciplinary matter. (R.103-04, 218-29, 260-67). NYU has a separate academic policy. (R.218-29). This academic policy provides for “academic disciplinary action” when a student does not meet the minimum standard for achievement. (R.223). A student can be dismissed under the academic policy (R.223). A student is subject to dismissal under the academic policy for: (1) receiving an F grade at the end of a remedial course; (2) receiving multiple F grades at any time during the academic year; or (3) receiving an F grade in an academic year being repeated. (R.223). A dismissal under the academic policy is made by the Office of Academic Affairs and the student can appeal the decision to a faculty committee on academic 38 review and standards. (R.224). Katie’s expulsion did not remotely follow this academic policy. Thus, even if NYU’s decision was an academic decision - which it was not - NYU still failed to substantially comply with its own rules. NYU also argues that Katie would have failed her required clinical course regardless of the amount of PMV she generated. (Appellant’s Br. at 51). But this argument is an arbitrary and bad faith argument in light of the undisputed fact that Katie continued to work at the Clinic during the summer to fully remediate her PMV shortfall.11 Thus, NYU cannot be prejudiced from being precluded from making it. It is arbitrary and irrational for Katie to have been told to return to complete her PMV requirement if the events on June 1, 2009 were so severe that Katie would fail the Clinic, “regardless of the amount of PMV she generated.” (Appellant’s Br. at 51). Katie’s failure in the clinic cannot rationally be the result of the June 1, 2009 events as NYU contends. If Wolff or Hershkowitz seriously questioned whether Katie was an “efficient and ethical practitioner” based on the June 1, 2009 events (see Appellant’s Br. at 67), it would have been unethical for 11 NYU’s brief argues that “the PMV credits were simply a way of measuring whether a student had achieved the clinical experience required to graduate.” (Appellant’s Br. at 66). Thus, by its own admission, once Katie reached her PMV goal she achieved the clinical experience required to graduate, based on NYU’s measurement tool. 39 them to allow Katie to continue to treat patients.12 But NYU has never contended it was wrong to allow Katie, who was the recipient of the Dr. Bernard E. Rudner Memorial Award for superior performance in providing oral comprehensive care and managing a dental practice (R.64), to continue to treat patients after June 1, 2009. Instead, both Wolff and Hershkowitz permitted Katie to treat patients on June 2, 2009. (R.79-80). Moreover, Katie’s continuation of clinical instruction was part of NYU’s academic policy which permitted remediation (R.221-22). NYU’s academic policy permits students who are deficient in clinic requirements at the time of graduation to complete all requirements by mid-August of the same academic year and graduate in September. (R.227). These students are called “Extended Seniors.” (R.227). To have Katie remediate her clinic requirements, and at the same time reserve the argument that she would fail regardless of her remediation, is bad faith. NYU’s argument that Katie would have failed the Clinic “regardless of the amount 12 See Rules of the Board of Regents, Part 29, Unprofessional Conduct § 29.1(b)(10) (unprofessional conduct for any licensed profession includes “delegating professional responsibilities to a person when the licensee delegating such responsibilities knows or has reason to know that such person is not qualified, by training, by experience or by licensure, to perform them”). 40 of PMV she generated” is an arbitrary and bad faith argument. NYU is not prejudiced by being precluded from making it.13 The Appellate Division correctly found that Katie’s expulsion was unquestionably disciplinary in nature. It was made according to NYU’s disciplinary policy, not its academic policy. Katie satisfied all her graduation requirements by completing her PMV requirement. Thus, when the Dean affirmed the expulsion decision under the Code, that decision was unquestionably disciplinary in nature. C. The Appellate Division Acted Within Its Authority to Grant the Petition The Appellate Division’s authority “is as broad as that of the trial court” and “may render the judgment it finds warranted by the facts.” Northern Westchester Professional Park Associates v. Town of Bedford, 60 N.Y.2d 492, 499 (1983); see also Small v. Lorillard Tobacco Co., Inc., 94 N.Y.2d 43, 53 (1999) (“The Appellate Division, as a branch of Supreme Court, is vested with the same discretionary power and may exercise that power, even when there has been no abuse of discretion as a matter of law by the nisi prius court.”); O'Connor v. Papertsian, 309 N.Y. 465, 471–72 (1956); Rabouin v. Metropolitan Life Ins. Co., 13 In any event, NYU’s assertion that it did not have “an opportunity . . . to demonstrate – because of her misconduct – Kickertz would have received a failing grade in [the] required clinical course regardless of the amount of PMV she generated” is a false statement of material fact because, as a matter of judicial notice, it did make this argument to the Supreme Court on remittitur. This argument resulted in Katie not receiving her degree. (R. 636). 41 25 A.D.3d 349, 350 (1st Dep’t 2006); Hollwedel v. Duffy-Mott Co., 263 N.Y. 95, 106 (1933). Because the Appellate Division made its finding regarding NYU’s substantial compliance with the 2009 Code on a developed record of undisputed facts, the Appellate Division properly invoked this Court’s BOCES exception to CPLR § 7804(f) and grant the Petition without an answer. (See generally R.1- 628). NYU did not move to dismiss on procedural grounds. Rather, it moved to dismiss the Petition on its merits, arguing that it failed to state a claim and that the documentary evidence proved NYU had a defense. (R.268). NYU advanced that no discovery was necessary or proper, and the court “must resolve this matter summarily upon the parties’ submissions to the extent there are no factual disputes.” (R.627). Thus, the application of the BOCES exception was proper. This case is unlike Matter of Bethelite Community Church, Great Tomorrows Elementary Sch. v. Dept. of Envtl. Protection of City of N.Y., where this Court found it was error not to permit an answer. 8 N.Y.3d 1001 (2007). In Bethelite, the respondent moved to dismiss on procedural grounds arguing that the “substantive question cannot be addressed and the petition must be dismissed since it not justiciable.” Bethelite Cmty. Church v. Dep't of Envtl. Prot. of City of NY, 8 Misc.3d 274, 280 (Sup Ct, N.Y. County 2004) (arguing there was not a final determination and a failure to exhaust administrative remedies). Here, NYU did the 42 opposite. NYU advanced a merits argument based on undisputed facts found in the documentary evidence. NYU cannot now be heard to complain when the decision turned out unfavorable. Because the Appellate Division based its decision on a developed record of undisputed facts, the Appellate Division properly invoked the BOCES exception to CPLR § 7804(f) and granted the petition. Because NYU’s disciplinary decision was annulled and the undisputed facts were that Katie had satisfied her requirements for graduation, the Appellate Division appropriately exercised its discretion to grant the Petition awarding her degree and attorneys’ fees. Since it was within the Appellate Division’s discretion to award the Petition and appropriate relief, this Court should not reverse that award. Additionally, a review of the Appellate Division’s decision granting the Petition’s requested degree and attorney’s fees is not ripe because Katie was denied that relief on remittitur. (R. 636). Katie is appealing the denial of her degree and attorneys’ fees to the Appellate Division. Only after the Appellate Division determined whether Katie was entitled to the award of the degree and attorney’s fee, would review by this Court be warranted.14 Even if this Court were to review the award of the degree and attorneys’ fees, the Appellate Division had a sound basis to make both awards. With respect to the degree, “there exists an implied contract between an institution and its 14 NYU has refused to remove the expulsion from her transcript. Apparently the Supreme Court declared the expulsion annulled but did not order it. (R. 636). 43 students such that if the student complies with the terms prescribed by the institution, [s]he will obtain the degree which [s]he sought.” Eidlisz v. New York Univ., 61 A.D.3d 473, 475 (1st Dep’t 2009), aff’d as modified, 14 N.Y.3d 730 (2010) (quoting Olsen v. Bd. of Higher Ed., 49 N.Y.2d 408, 414 (1980)); Clogher v. New York Medical College, 112 A.D.3d 574, 574 (2d Dep’t 2013). Thus, if an institution breaches this implied contract with a student, a court has the ability to order the conferral of a degree where the student has fulfilled the institution’s academic requirements. See Olsen, 49 N.Y.2d at 415-16; Healy v. Larrson, 67 Misc.2d 374 (Sup. Ct., Schenectady Cnty 1971), aff’d, 42 A.D.2d 1051 (1st Dep’t 1973), aff’d, 35 N.Y.2d 653 (1974) (ordering degree because petitioner completed the course of study as proscribed by the community college); Blank v. Bd. Of Higher Ed., 51 Misc.2d 724 (Sup. Ct., Kings Co. 1966) (finding petitioner entitled to his degree after taking certain courses in a manner prescribed by university officials). Here, the Appellate Division found based on the undisputed facts that Katie had satisfied all her academic requirements making the award of her degree a matter of formality. With respect to awarding attorneys’ fees, New York courts have discretion to award reasonable attorneys’ fees resulting from frivolous conduct. Yenom Corp. v. 155 Wooster St., Inc., 33 A.D.3d 67, 70 (2006); 22 N.Y.C.R.R. 130-1.1(a). Conduct is considered frivolous if (1) it is completely without merit in law and 44 cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken to primarily delay or prolong the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false. Yenom Corp., 33 A.D.3d at 70; 22 N.Y.C.R.R. 130-1.1(c). Here, the Appellate Division acted within its discretion to grant the Petition with attorneys’ fees based on NYU’s frivolous affirmative defense that the sham disciplinary process Katie received substantially complied with the 2009 Code and based on NYU’s false assertions of material fact that (1) Katie admitted to entering a fraudulent entry into a patient record and (2) Katie was notified of the PMV shortfall earlier. Because there was a sound basis for the Appellate Division to grant the Petition awarding Katie her degree and attorneys’ fees, this Court should not disturb the Appellate Division’s Order granting that relief. D. The Appellate Division Correctly Found that the Penalty of Expulsion Was Shocking to One’s Sense of Fairness and is an Alternative Basis Which to Affirm the Reversal of the Dismissal of the Petition The Appellate Division’s finding that the expulsion shocked one’s sense of fairness serves as an alternative basis to reverse Justice Schlesinger’s dismissal of the Petition. Justice Schlesinger dismissed the petition because she found the penalty of expulsion did not shock one’s sense of fairness. (R.13-14). Justice Schlesinger’s decision was based on her belief that it was an undisputed fact that 45 Katie fabricated patient records. (R.7, 13-14). The Appellate Division rejected Justice Schlesinger’s belief, writing that Katie “avers that she admitted creating the encounter forms but that at no time did she state that she had falsified a patient’s chart or records.” (R.647). The dissent also noted that it was a disputed issue whether Katie falsified a patient’s chart. (R.662). Thus, Justice Schlesinger erroneous finding, advanced by NYU (R.278-29), justified the Appellate Division’s reversal of her on this issue. The Appellate Division could have stopped by pointing out that Justice Schlesinger dismissed on a false premise. However, the Appellate Division went a step farther and analyzed the record to reach its conclusion that the expulsion shocked one’s sense of fairness. Given the record before the Appellate Division, that Katie’s “exemplary” academic performance at NYU (R.658); that the incident was at worst a single lapse of judgment in the face of extraordinary pressure (R.658); that Katie was left without a “degree of any kind after seven years of educational toil and the expenditure of hundreds of thousands of dollars” (R.658); that NYU did not give due weight to extenuating circumstances, grounded in the Code, regarding Katie’s treatment at NYU (R.659); and Katie’s penalty was more severe compared to similarly situated students (R.659), the Appellate Division 46 properly concluded that the penalty shocked one’s sense of fairness. See also Kickertz II, 110 A.D.3d at 276.15 NYU faults the Appellate Division for relying on facts which were disputed. (Appellant’s Br. at 44-45). But, this argument is misplaced. It would have been error for the Appellate Division not to view the disputed facts most favorably to Katie when determining whether to dismiss her Petition because she failed to state a claim that the penalty shocked one’s sense of fairness. (R.459-60). The Appellate Division was careful not to use these disputed facts in deciding to grant the Peition without an answer. Thus, the Appellate Dvision’s finding that the penalty shocks one’s sense of fairness serves as a alternate basis to affirm the reversal of the Supreme Court’s dismissal of the Petition. IV. IF IT WAS REVERSIBLE ERROR NOT LET NYU ANSWER, THIS COURT SHOULD REMIT THIS CASE TO THE APPELLATE DIVISION TO DETERMINE WHEN AND UNDER WHAT TERMS NYU CAN ANSWER NYU requests that if the Court finds that the Appellate Division erred by not permitting it to answer, it should vacate all the findings of the Appellate Division and remand back to the Supreme Court. (Appellant’s Br. at 50-52). NYU’s request for a tabula rasa should be denied. CPLR § 7804(f) permits a court to limit a 15 Separation from an academic program is a shocking and excessive remedy for a single day’s alleged misconduct. See, e.g., Rindos v. Board of Educ. of Longwood Cent. School Dist., 20 A.D.3d 572, 573 (2d Dep’t 2005); Schnaars v. Copiague Union Free School Dist., 275 A.D.2d 462 (2d Dep’t 2000); Haynes v. Board of Ed., Cold Springs Harbor Central School Dist., 57 A.D.2d 959, 395 N.Y.S.2d 76 (2d Dep’t 1977). 47 respondent’s answer “upon such terms as may be just.” Given the extensive litigation over the issues and findings of the Appellate Division, it would be unjust for NYU to litigate every issue again. This Court does not need to determine on what terms NYU should be permitted to answer since the Appellate Division did not consider this issue in the first instance. See CPLR § 5613. Thus, if NYU is entitled to answer, this Court should remit this case to the Appellate Division to determine when and under what terms it would be just for NYU to answer. 48 CONCLUSION If this Court does not dismiss NYU’s appeal for lack of subject-matter jurisdiction, this Court should affirm the order of the Appellate Division in its entirety for the reasons that NYU cannot demonstrate any reversible error and the Appellate Division properly invoked the BOCES exception to CPLR § 7804(f) when granting the Petition without an answer. In the alternative, this Court can affirm the reversal of the Supreme Court’s dismissal on the basis that the Petition states a claim that the penalty shocks one’s sense of fairness. Additionally, if it was error for the Appellate Division to not allow NYU to answer, the proper procedure would be to remit this case to the Appellate Division for a determination on when and under what terms it would be just for NYU to answer. Dated: Carle Place, New York June 16, 2014 Respectfully submitted, LEEDS BROWN LAW, P.C. ____________________________ Bryan Arbeit, Esq. Jeffrey K. Brown, Esq. Attorneys for Petitioner-Respondent Katie Kickertz One Old Country Road, Suite 347 Carle Place, New York 11514 (516) 873-9550