In the Matter of Katie Kickertz, Respondent,v.New York University, Appellant.

Brief

N.Y.February 10, 2015

To BE ARGUED BY: JEFFREY K. BROWN, ESQ. ’upum QEourt for tjt’tate of AJtu pork tppcttate thitoii:jfirt 33epartment In the Matter of the Application of KATIE KICKERTZ, Petitioner-Appellant, For a Judgment Pursuant to Article 78 of the Civil Practice Laws and Rules, -against- NEW YORK UNIVERSITY, Respondent-Respondent. REPLY BRIEF FOR APPELLANT KATIE KICKERTZ LEEDS MORELLI & BROWN, P.C. A ttorneys for Petitioner-Appellant One Old Country Road, Suite 347 Cane Place, New York 11514 (516) 873-9550 Email: Jbrown@lmblaw.com [Reproduced on Recycled Paper] Supreme Court, New York County, Index No. 103461/2010 DICK BAILEY SERVICE (212) 608-7666 (718) 522-4363 (516) 222-2470 (914) 682-0848 Fax (718) 522-4024 1-800-531-2028 To RGUED By: JEF REY K. BRO N, ESQ. ~upreme ~ourt for toe ~tate f ~ew ~ork ~p eUate 11Bibision:jfirst 11Bepartment In the atter f TI I etiti er- ppellant, r t t rticle 78 f t e s and Rules, I SIT , t- espondent. REP I I , P. . etitioner-Appellant ne ld Country Road, Suite 347 arle Place, New York 11514 (516) 873-9550 E ail: Jbrown@lmblaw.com [Reproduced on Recycled Paper] Supreme Court, New York County, Index No. 103461/2 10 DICK BAILEY SERVICE (212) 608·7 6 (718) 5224363 (516) 22·2470 (914) 682·0848 Fax (718) 522-4024 1-8 0-531-2028 TABLE OF CONTENTS Page TABLE OF AUTHORITIES . ii QUESTIONS PRESENTED ON APPEAL ............................................................... 1 PRELIMINARY STATEMENT ...............................................................................1 ARGUMENT.............................................................................................................5 A. Issues of Fact Require a Hearing under Article 78, and "Documentary Evidence" May Not Be Used to Circumvent the Right to a Hearing under CPLR §7804[h] ..................................................................................... 5 B. There Are Issues of Fact Concerning Whether Respondent Acted Arbitrarily and Irrationally in Expelling Katie, in Violation of Its Own Procedures......................................................................................................11 1. There Is an Issue of Fact Concerning Whether Katie Could Examine Witnesses Against Her as Required by the Peer Review Board Proposal and the Code of Ethics ...................................................11 2. There Is an Issue of Fact Concerning Whether the Code of Ethics and Professionalism Guaranteed Katie’s Right to Have an Attorney Presentat Her Hearing .............................................................................14 3. There Is an Issue of Fact Concerning Whether Supporting Evidence Was Considered at Katie’s Hearing, as Required by the Peer Review Board Proposal and the Code of Ethics and Professionalism.........................................................................................16 4. There Is an Issue of Fact Concerning Whether Meeker and Cornejo Made False Statements to the Investigating Panel, Whose Conclusion Respondent’s Dean Accepted...............................................16 5. There Is an Issue of Fact Concerning Whether the Peer Review Board Was Properly Constituted..............................................................17 C. There Is an Issue of Fact Concerning Whether Katie’s Expulsion Was Disproportionate and "Shocks the Conscience" in Response to an IsolatedIncident ............................................................................................18 CONCLUSION........................................................................................................22 PRINTING SPECIFICATIONS STATEMENT ..................................................... 23 F AUTHORITIES ...................................................... .............................. i I PRESENTED ON A PEAL .... ............... ... 1 I I RY STATEMENT ............... ............... 1 ........................ ........................ ... 5 Issues of Fact Require a Hearing under Article 78, and "Documentary " ay Not Be Used to Circumvent the Right to a Hearing R §7804[h] .......... ............... ... here Are I sues of Fact Concerning Whether Respondent Acted il and I rationa ly in Expelling Katie, in Violation of Its Own r s ............. .............. ... 11 . a Issue of Fact Concerning Whether Katie Could itnesses Against Her as Required by the Peer Review r osal and the Code of Ethics ......... ......... 11 I a Issue of Fact Concerning Whether the Code of Ethics i lis uaranteed Katie's Right to Have an Attorney at Her Hearing ............................. ... 14 Issue of Fact Concerning Whether Supporting sidered at Katie's Hearing, as Required by the oard Proposal and the Code of Ethics and lis ............... ............... ... 16 . Issue of Fact Concerning Whether Meeker and Cornejo tate ents to the Investigating Panel, Whose ent' ccepted ............................................... 16 . Issue of Fact Concerning Whether the Peer Review rl onstituted ............. .. 17 . I an Issue of Fact Concerning Whether Katie's Expulsion Was s t e onscience" in Response to an Incident .......................... : ............................. ... 18 ....................... .. 22 IFICATIONS STATEMENT .................. ... 23 TABLE OF AUTHORITIES Cases Page(s) Acosta v. New York City Dept. of Educ., 62 A.D.3d 455, 878 N.Y.S.2d 337 (1st Dep’t 2009) ............................................18 Andersen v. Weinroth, 13 Misc.3d 1204(A), 824 N.Y.S.2d 752 (Table), 2006 WL 2569959, (N.Y. Sup. Ct., New York Cty., Sept. 5, 2006) ......................8 Basile v. Albany College of Pharmacy of Union University, 279 A.D.2d 770, 771, 719 N.Y.S.2d 199, 201 (3d Dep’t 2001).........................2, 8 Dollas v. W.R. Grace and Co., 225 A.D.2d 319, 320, 639 N.Y.S.2d 323 (1st Dep’t 1996) ....................................9 Ebert v. Yeshiva University, 4 Misc.3d 699, 701-2, 780 N.Y.S.2d 283, 286 (N.Y. Sup. Ct., N.Y. Cty. 2004) ... 5 Ebert v. Yeshiva University, 28 A.D.3d 315 (1st Dep’t 2006)............................................................................20 Eidlisz v. New York University, 15 N.Y.3d 730, 932 N.E.2d 876 (N.Y. 2010) .........................................................5 Fay v. Vargas, 67 A.D.3d 568, 569, 888 N.Y.S.2d 405, 405 (1st Dep’t 2009) ..........................7-8 Fernandez v. Columbia Univ., 16 A.D.3d 227 (1st Dep’t 2005)............................................................................20 Flores v. New York Univ., Index No. 112583/09 (N.Y. Sup. Ct., NY County, Dec. 4, 2009)...................9, 10 Goudy v. Schaffer, 24 A.D.3d 764, 765, 808 N.Y.S.2d 712 (2d Dep’t 2005).....................................19 Haynes v. Board of Ed., Cold Springs Harbor Central School Dist., 57 A.D.2d 959, 395 N.Y.S.2d 76 (2d Dept. 1977) ...............................................18 !1I I I S s r sta v. New York City Dept. ofEduc., , 8 . .S.2d 337 (1st Dep't 2 09) .. 18 rsen v. Weinroth, e 1204( ), 824 N.Y.S.2d 752 (Table), 69959, (N.Y. Sup. Ct., New York Cty., Sept. 5, 2006) ...................... 8 l any Co lege of Pharmacy of Union University, 70, 71, 9 .Y.S.2d 1 9,201 (3d Dep't 2 01) ... 2, 8 a v Grace and Co., , 32 , 639 . .S.2d 323 (1st Dep't 1 96) .. 9 eshiva University, e , 701-2, 780 N.Y.S.2d 283, 286 (N.Y. Sup. Ct., N.Y. Cty. 2004) ... 5 t Yeshiva University, ( st ep't 2006) ........................ .. 20 v e York University, . . .2d 876 (N.Y. 2010) .................. ... 5 , (1st ep't 2009) . 7-8 z v. Columbia Univ., . . ' ) ............................ .. 20 York Univ., / . t., County, Dec. 4, 2 09) ... 9, 10 ffer, 5, . .S.2d 712 (2d Dep't 2 05) ............ ... 19 rd f . Cold Springs Harbor Central Sch ol Dist., . .S.2d 76 (2d Dept. 19 7) ............ ... 18 ii Hochha user v. Electric Ins. Co., 46 A.D.3d 174, 182-83, 844 N.Y.S.2d 374, 380-81 (2d Dep’t 2007) ................... 7 In re Ludlam Will, 26 Misc.2d 324, 325, 204 N.Y.S.2d 873 (N.Y. Sun. Ct., Nassau Cty., 1960)..... 15 Mary M v. Clark, 118 Misc.2d 98 (N.Y. Sup. Ct., Cortland County, 1983) .....................................14 Matter of Beilis v. Albany Med. Coll. of Union Univ., 136 A.D.2d 42, 44, 525 N.Y.S.2d 932 (3d Dep’t 1988).................................14, 20 Matter of Carr v St. John’s Univ., N.Y., 17 A.D.2d 632, 231 N.Y.S.2d 410 (2d Dep’t 1962) ...................................21 Matter ofFeatherstone v Franco, 95 N.Y.2d 550, 552-53 720 N.Y.S.2d 93 (2000)..................................................21 Matter of Kramer v Kinney, 87 A.D.2d 870, 870-71, 449 N.Y.S.2d 312 (2d Dep’t 1982)..........................20, 21 Matter ofNawaz v State Univ. off. Y Univ. at Buffalo School of Dental Medicine, 295 A.D.2d 944, 945, 744 N.Y.S.2d 590 (4th Dep’t 2002)..................................13 Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34N.Y.2d 222, 228, 313 N.E.2d 321 (1974)........................................................18 Matter of Ryan v. Hofstra Univ., 67 Misc.2d 651, 662 (N.Y. Sup. Ct., Nassau Country, 197 1) ..............................20 Miciotta v. McMickens, 118 A.D.2d 489, 492, 499 N.Y.S.2d 960,962 (1st Dep’t 1986) ............................ 6 Milbrandt & Co., Inc. v. Griffin, 5 Misc.3d 1011(A), 798 N.Y.S.2d 711 (Table), 2004 WL 2532292, at *3..4 (N.Y. Sup. Ct., Westchester Cty., Oct. 7, 2004) ........7 Fill ha t ic I Co., d 174, 182-83, 8 4 N.Y.S.2d 374, 380-81 (2dDep't2007) ........ 's Wi l, . 324,325, 04 N.Y.S.2d 873 (N.Y. SUIT. Ct., Nassau Cty., 1960) .... v. Clark, ( . . Sup. Ct., Cortland County, 1983) ... 14 tt r of ilis v. Albany Med. Coli. of Union Univ., , 44, (3d ep't 1988) .. 14, 20 f arr v St. John's Univ., 1 . .2d 632, 231 N.Y.S.2d 410 (2d Dep't 1962) .. 21 f Featherstone v Franco, . 9 (2000) .. .............. 21 f ra er v Kinney, 0, -71, 49 N.Y.S.2d 312 (2d Dep't 1982) .......................... 20, 21 f Nawaz v State Univ. of N. Y Univ. at Buffalo Sch ol of Dental Medicine, 4, 5, 4 .Y.S.2d ' . 13 f ll v. Board of Educ. of Union Free School Dist. No.1 of Towns of roneck, Westchester County, . .2d 222, 228, 313 N.E.2d 321 (1974) ........................................................ 18 f n v. Hofstra Univ., 51, 2 (N. . Sup. Ct., Na sau Country, 1971) ........................ 20 v c ickens, 8 . . , , . . .2d 960,962 (1st Dep't 1986) ... t . In . v. Gri fin, ( ), 798 N.Y.S.2d 7 1 (Table), t *3-4 . t., estchester Cty., Oct. 7,2 04) ........ 7 iii Miriam Osborn Memorial Home Assn v. Assessor of City of Rye, 9 Misc.3d 1019, 1034, 800 N.Y.S.2d 909, 913 (N.Y. Sup. Ct. Westchester Cty., 2005)............................ 9 Morales v. New York University, 83 A.D.2d 811,442 N.Y.S.2d 12 (1st Dep’t 1981), order affd, 55 N.Y.2d 822, 447 N.Y.S.2d 438, 432 N.E.2d 140 (1981)................ 5 Morisseau v. DLA Piper, 532 F.Supp.2d 595, 621 n. 163 (S.D.N.Y. 2008)....................................................7 Powell v. Javier, 24 Misc. 3d 141(A) (Table), 2009 WL 2407841, *1 (lstDep’t 2009)....................8 Quwrcia v. New York Univ., 41 A.D.3d 295 (1st Dep’t 2007)............................................................................20 Rindos v. Board of Educ. of Longwood Cent. School Dist., 20 A.D.3d 572, 573, 786 N.Y.S.2d 739 (2d Dep’t 2005).....................................18 Rutkunas v. Stout, 31 A.D.3d 566, 817 N.Y.S.2d 676 (2d Dep’t 2006), leave to appeal granted, 7N.Y.3d 716, 826 N.Y.S.2d 181, 859 N.E.2d 921, affirmed as modified by 8 N.Y.3d 897, 834 N.Y.S.2d 73, 865 N.E.2d 1239 (2006)...................................19 Sabin v State Univ. off. Y. Mar. Coll. at Fort Schuyler, 92 A.D.2d 831, 832, 460 N.Y.S.2d 332 (1st Dep’t 1983) ..............................13,20 Simpson v. Tommy HilfIger US. A., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629,63 2(2d Dep’t 2008)............................. 15 Tedeschi v. Wagner College, 49 N.Y.2d 652, 655-56, 404 N.E.2d 1302, 1306 (1980).......................................20 Walker ex rel. Velilla v. City of New York, 46 A.D.3d 278, 282, 847 N.Y.S.2d 173, 175-76 (1st Dep’t 2007)......................... 9 Wamsley v. East Ramapo Cent. School Dist. Bd. of Educ., 281 A.D.2d 633, 635, 723 N.Y.S.2d 53, 55 (2d Dep’t 2001).................................6 iv i i Osborn Memorial Home Ass In v. As ess r of City of Rye, i e.3d 1019, 1034, . . .2d 909, 13 (N.Y. Sup. Ct. Westchester Cty., ) ; . l v. ew York University, . 8 , 42 N.Y.S.2d 12 (1st Dep't 1981), ffd, 55 . . 822, 447 N.Y.S.2d 438,432 N.E.2d 140 (1981) .... isseau v. DLA Piper, . .2d , 1 (S. . . . 2 08) .................... ... 7 ll v. J vier, e. , 009 L 2407841, *1 (1st Dep't 2 09) .. ..... i v. e York Univ., . (1st ep't 2007) ... ......... 20 v oard of uc. of Longw od Cent. School Dist., . 73 (2d ep't 2005) .. 18 v. Stout, . .S.2d 676 (2d Dep't 2 06), . .3d 716,826 N.Y.S.2d 181,859 N.E.2d 921, ed s odified by , . . .2d 73, 65 N.E.2d 1239 (2 06) ................................... 19 i o N. Y Mar. Coli. at Fort Schuyler, . . .2d 332 (1st ep't 1983) . 13, 20 To my Hilfiger US.A., Inc., . . .2d 629, 63 2(2d Dep't 2 08) ... o lege, , 130 , 1306 (1980) ....... 20 I Veli la v. City of New York, . .S.2d 173, 175-76 (1st Dep't 2 07) ... l . ent. Sch ol Dist. Bd. ofEduc., 3,6 ,72 . 53,5 ' ...................... 6 i Wapnick v. Board of Regents of University of State off. Y., 41 A.D.2d 795, 796, 341 N.Y.S.2d 366, 367 (3d Dep’t 1973)...............................8 Wharton v. State University of New York at Buffalo, No. 07—CV-1 16A, 2011 WL 1486554, at *4 (W.D.N.Y. Apr. 19, 2011).............. 7 Wolff v. McDonnell, 418 U.S. 539 (1974)..............................................................................................14 Statutes/Regulations/Miscellaneous CPLR2001............................................................................................................ 15 CPLR3212[b] ......................................................................................................... 6 CPLR7801[h] ....................................................................................................... 17 CPLR7804[h] ..........................................................................................1,3,5,6,22 N.Y. CPLR §§ 7801...................................................................................................5 N.Y. CPLR7802 ................................................................................................... 5 New York Practice with Forms 2d § 4:35 (Westlaw 2011).....................................15 V ard of Regents of University of State N. , . . d 795, 796, 341 N.Y.S.2d 6, p't 1973) ............................... 8 t te University of New York at Buffalo, 7-CV-116A, 20 1 WL 1486554, at *4 ( . . . . Apr. 19,20 1) .. l f c onne l, ................. .................. ... 14 t s/ egu/ations/Miscel/aneous § 2001 ............................................................................................................ 15 § 3 12 [b] .... 6 § 7801 [h] .... 17 7804[h] ..... ...................... , 5,6, 2 §§ 7801 ................. ..................... 5 . §§ 7802 ....... .................... .... 5 rk ractice with Forms ( estlaw 2011) .. 15 v QUESTIONS PRESENTED ON APPEAL Did the Supreme Court improperly dismiss an Article 78 petition without the required 7804[h] hearing, by making factual findings based on hearsay statements contained in documents submitted for what they said, but not for the truth of the matter asserted? 2. Where a private university does not substantially comply with its own procedures in deciding to dismiss the petitioner, a dental student who did not admit to falsifying patient treatment records, may the student’s Article 78 petition be dismissed without the required 7804[h] hearing or the benefit of any discovery? 3. Where a university acts arbitrarily and irrationally in treating similarly- situated students differently, failing to comply with its own disciplinary procedures, and making false statements during disciplinary proceedings against a student, does that entitle the student to a new hearing, and a reversal of the student’s expulsion? PRELIMINARY STATEMENT Petitioner Katie Kickertz ("Katie") submits this memorandum of law in support of her appeal of the Supreme Court’s dismissal, per Justice Alice Schlesinger, of her Article 78 petition seeking an order granting her the Doctor of Dental Sciences ("DDS") degree, a reversal of the decision dismissing her from QUESTIONS PRESENTED ON APPEAL 1. Did the Supre e rt i rl dis iss an Article 78 petition witho ut the required 7804[h] heari , aking factual findings based on hearsay statem ents contained in docu e ts s i ted for what they said, but not for the truth of t he matter asserted? 2. here a private i rsity does not substantially comply with its own procedures in deciding to dismi s the petitioner, a dental student who did not admit to falsifying patient treatment records, may the student's Article 78 peti tion be dis issed ithout the required 7804[h] hearing or the benefit of any discov ery? 3. here a university acts arbitrarily and irrationally in treating similarly- situated students differently, failing to comply with its own disciplinary procedures, and making false statements during disciplinary proceedings agai nst a student, does that entitle the studen to a new hearing, and a r versal of the student' s expulsion? I I S E T Petitioner Katie Kickertz ("Katie") submi s this memorandum of law in support of her appeal of the Supreme Court's dismissal, per Justice Alice Schlesinger, of her Article 78 petition seeking an orde gra ting her the Docto r of Dental Sciences (" DS") degree, a reversal of the decision dismissing her fro m 1 New York University College of Dentistry ("Respondent"), and other appropriate relief. Respondent’s brief helpful narrows the issue on this appeal. First, it concedes that a private university must "follow its own rules in applying discipline." Second, it maintains that in Basile v. Albany College of Pharmacy, the Appellate Division, Third Department rejected a disciplinary decision based on hearsay. 2 Third, it acknowledges that Katie was not informed of any alleged deficiency in her PMV payments until the eve of graduation in May 2009. Although there is one allegation that she was informed in "mid-April," there is no evidence that she was informed of her progress towards meeting the requirement in 2007 or 2008, as required by Respondent’s registration bulletins and circulars. 4 Finally, two students conducted the investigation of Katie’s case . 5 After these students dismissed Katie from the DDS program without a hearing, Dean Anthony Palatta took over the proceeding, and informed Katie that she was dismissed after a "hearing" and a vote of two faculty members on October 23, 2009 . 6 Br. of Respondent in Case No. 103461/2010, P. 19 [hereinafter "Respondent’s Br."]. See also id. at 12, 20. 2 See id. at 21. Respondents attempt to distinguish this case, as noted below, but in legally irrelevant ways. Id. at5. " See id. See id. at 8. 6 See id. at 8-9. 2 rk niversity College of Dentistry ("Respondent"), and other appropriate ent' rief helpf l narro s the i sue on this appeal. First, it t at a private university must "follow its own rules in applying li e."} Second, it maintains that in v. lbany Co lege of Pharmacy, llate ivision, Third Department r jected a disciplinary decision based on say? Third, it acknowledges that Katie was not informed of any alleged in her P V payments until the eve of graduation in May 2009.3 t r is one a legation that she was informed in "mid-April," th re is no t at she as informed of her progress towards meeting the requirement in , required by Respondent's registration bulletins and circulars.4 st ents conducted the investigation of Katie's case.s After thes is issed atie from the DDS program without a hearing, Dean Anthony over the proc eding, and informed Katie that she was dismissed after a and a vote of two faculty members on October 23, 2 09.6 I ent in Case No. 10346112010, p. [hereinafter "Respondent's Br."]. , 2 S e id. Respondents attemp to distinguish this case, as noted below, but in legally t s. 3 . t 4 See id. S i 6 S e id. But Respondent does not claim that the Supreme Court conducted a "hearing" required by CPLR 7804[h]. This alone constituted reversible error mandating reversal of the dismissal order. The remaining disputes between Katie and Respondent concern contested issues of fact. First, there is an issue of fact concerning whether Respondent violated its own disciplinary rules in failing to allow Katie to examine the witnesses against her, especially Harry Meeker, David Hershkowitz, and Ivan Cornejo. Although Respondent claims that Katie was granted a "hearing," it does not deny that she was denied the right guaranteed by both the 2009 and 2010 versions of Respondent’s rules to question witnesses and review the "evidence" against her at a hearing. 7 Second, there is an issue of fact concerning whether Respondent arbitrarily or irrationally concluded that Katie falsified patient treatment record. In its Opposition Brief, Respondent repeatedly and falsely claims that Katie "forg[ed]" or "falsified patient records." 8 As set forth below, however, the patient "encounter forms" used to calculate Practice Model Value ("PMV") fees and credit student accounts are not treatment records, and Respondent does not regard them as such. Third, there is a factual dispute about which student ethics policy was in effect at the time of Katie’s dismissal from the DDS program. Respondent argues that the established procedure in place was the 7 See id. at 17. 8 Id. atl6. 3 t spondent does not claim tha the Supreme Court conducted a required by CPLR 7804[h]. This alone constituted r versible error ti reversal of the dismi sal order. aining disputes betw en Katie and Respondent concern cont sted f f t. First, there is an i sue o fact concer ing whether Respondent it o n disciplinary rules in fa ling to allow Katie to examine the against her, especially Harry M eker, David Hershkowitz, and Ivan Although Respondent claims that Katie was granted a "hearing," it does t at she was denied the right guaranteed by both the 2009 and 2 10 f spondent's rules to question witne ses and review the "evidence" t a hearing.7 Second, there is an i sue o fact concerning whether t arbitrarily or i rationally concluded that Katie falsified patient t . In its O pos tion Brief, Respondent r peatedly and falsely i "forg[ ed]" or "falsified patient records."s As set forth below, t patient "encounter forms" used to calculate Pra tice Model Value l'v'l ") fees and credit student a counts are not treatment records, and t s ot regard them as such. Third, th re is a factual dispute about t t ics policy was in e fect at the time of Katie's dismissal from the Respondent argues that th established procedure in place was the 7 t 17. Id. 16. Peer Review Board ("PRB") "Proposal," but incredibly, it fails to note that this procedure was denoted a "Proposal," even according to Dean Palatta. R. 302-308. Katie has also submitted evidence that at the time of her dismissal, Respondent’s website announced that the rules governing disciplinary proceedings were governed by a "New York University College of Dentistry Code of Ethics and Professional Conduct" ("Code of Ethics"), which stated that a faculty member must be present on the Investigating Panel in cases of alleged misconduct, that matters involving alleged misconduct "will be brought before the Council on Ethics and Professionalism" comprised of at least nine faculty members overseeing the proceeding, that the Council shall recommend a resolution of the matter to the Dean, that the student has the right to "legal counsel from outside the University," and that the hearing shall involve presentation of the "supporting evidence" to the Investigation Panel, including a "fair opportunity" by the student to question the University’s witnesses. R. 67-68, 321-22, 396-99. Accordingly, it was the "Code of Ethics," not the "Proposal," which governed "all aspects of ethical and professional conduct within the College and establishes the process to be followed by the College for adjudicating instances of noncompliance with the Code." 9 In fact, the "Proposal" only became a "Peer Review Board" and a "Code of Ethics" in R. 275 (Respondent cited "the published Code of Ethics and Professional Conduct of the College of Dentistry" as the governing document on ethical behavior); R. 12, 37-38 (Katie agreed "Code of Ethics" was in force, not the PRB Proposal). ri Peer Revie Board (" l," but incredibly, it fails to note that th is procedure was denote a " r l," even according to Dean Palatta. R.302 -308. Katie has also sub itte i t t at t ti e of her dismi sal, Responde nt's website announced t at t rules governing disciplinary proceedings were governed by a " e rk niversity College of Dentistry Code of Ethics an d Professional onduct" (" ode of Ethics"), which stated that a faculty membe r must be present on the Investigating Panel in cases of alleged misconduct, th at matters involving alle ed isconduct "wi l be brought before the Council on Ethics and Professionalism" comprised of at least ine faculty members over seeing the proceeding, that the Council shall reco mend a resolution of the matter t o the Dean, that the student has the righ to "legal counsel from outside the Univer sity," and that the hearing shall involve presentation of the "supporting evidence" t o the Investigation Panel, including a "fair o portunity" by the student to question the University's itness s. R. 67-68,321- 2,396- 9. Accordingly, it was the " Code of Ethics," not the "Proposal," which governed "all aspects of ethical and professional conduct within the College and establishes the process to be foll owed by the College for adjudicating instances of noncompliance with the Code.,,9 In fact, the "Proposal" only became a "Peer Review Board" and a "Code of Eth ics" in 9 R. 275 (Respondent cited "the published Code of Ethics and Professional Conduct of the College of Dentistry" as the gover ing document on ethical behavior); R. 1 2,37-38 (Katie agreed "Code of Ethics" was in force, not the PRE Pr posal). 4 20 10. R. 427. At that time, the word "Proposal" was removed from the document’s title. Id. Finally, there is an issue of fact about whether Katie’s expulsion was disproportionate in light of the facts that (1) her alleged misconduct followed instructions given to her by Respondent’s own employees, (2) Respondent was not harmed by her alleged misconduct in any way, and (3) the lesser sanction of suspension for one year was available and has been endorsed by this Court. ARGUMENT A. Issues of Fact Require a Hearing under Article 78, and "Documentary Evidence" May Not Be Used to Circumvent the Right to a Hearing under CPLR 7804[h] Article 78 is a judicial proceeding, and therefore, is not subject to Respondent’s Peer Review Board Proposal’s provision that the rules of evidence may be waived. See N.Y. CPLR §§ 7801, 7802; Eidlisz v. New York University, 15 N.Y.3d 730, 932 N.E.2d 876 (N.Y. 2010); Morales v. New York University, 83 A.D.2d 811, 442 N.Y.S.2d 12 (1st Dep!t 1981), order affd, 55 N.Y.2d 822, 447 N.Y.S.2d 438, 432 N.E.2d 140 (1981) (upholding claim that Article 78 petition regarding credits toward doctorate degree could go forward); Ebert v. Yeshiva University, 4 Misc.3d 699, 701-2, 780 N.Y.S.2d 283, 286 (N.Y. Sup. Ct., N.Y. Cty. 2004) ("Under CPLR Article 78, [private universities] are accountable for the 5 2010. R.427. t t at ti , the ord "Proposal" was removed from the docu ent's title. Id. Finally, there is i t ther atie's expulsion was disproportionate in li t f t facts that (1) her alleged misconduct followed instructions given to r ent' o n e ployees, (2) Respondent w as not harmed by her allege i uct in any way, and (3) the lesser sanction of suspension for one e r as available and has b en endorsed by this Court. A. Issues of act equire a Hearing under Article 78, and "Documentary Evidence t e Used to Circumven the Right to a Hearing under §780 [ Article 78 is a judicial proc eding, and therefore, is not subject to Respondent's Peer Review Board Proposal's prov sion that the rules of evid ence may be aived. . . PLR §§ 7801, 7802; i lisz v. New York Univer sity, 15 N.Y.3d 730, 932 N.E.2d 876 (N.Y. 2010); rales v. New York University, 83 A.D.2d 811, 442 N.Y.S.2d 12 (1st Dep't 1981), rder a fd, 5 . .2d 822, 4 47 N.Y.S.2d 438,432 N.E.2d 140 (1981) (upholding claim that Article 78 petit ion regarding credits toward doctorate degree could g forward); Ebert v. Yeshiv a University, 4 isc.3d 6 9, 701-2, 780 N.Y.S.2d 283, 286 (N.Y. Sup. Ct., N.Y . Cty. 2004) ("Under CPLR Article 78, [private universities] are accountable for th e 5 proper discharge of their self-imposed and statutory obligations.") (emphasis added). Justice Schlesinger committed reversible error in dismissing Katie’s Article 78 petition without granting her the required hearing under CPLR § 7804[h] as to the disputed issues of fact. See CPLR § 7804[h] ("If a triable issue of fact is raised in a proceeding under this article, it shall be tried forthwith."); Wamsley v. East Ramapo Cent. School Dist. Bd. of Educ., 281 A.D.2d 633, 635, 723 N.Y.S.2d 53, 55 (2d Dep’t 200 1) (dismissal of Article 78 petition erroneous where "a triable issue of fact was raised ... and, therefore, the Supreme Court should not have dismissed the proceeding without conducting a hearing") (citing CPLR § 7804[h]); Miciotta v. McMickens, 118 A.D.2d 489, 492, 499 N.Y.S.2d 960, 962 (lstDep’t 1986) (similar) (citing CPLR § 7804[h]). 10 Respondent also does not deny that the Supreme Court dismissed this Article 78 petition without the required § 7804[h] hearing. 11 Further, it concedes that hearsay statements contained in documents submitted by a party for the truth of the matter asserted formed the basis of the dismissal. 12 Respondent wrongly characterizes R. 114-16 as "admissions" by Katie to having "fabricated patient records." Respondent’s Br. at 10-11. R. 114-16, in fact, 10 Cf also CPLR § 3212[b] ("Except as provided in subdivision (c) of this rule [a motion for summary judgment] shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."). 11 Respondent’s Br. at 14, 16. 12 See Id. at 10-11, 16. me pa r er discharge of their self-imposed t t t ry li ations.") (emphasis ). ti chlesinger commi ted reversible error in dismissing Katie's Article tition ithout granting her the required hearing under CPLR § 7804[h] as to isputed i sues of fact. [ ] ("If a triable i sue o fact is raised r ceeding under this article, it shall be tried forthwith."); v. ast o Cent. Sch ol Dist. Ed. of Educ., . . 633, . . d , p't 200 l of rticle 78 petition erroneous wh re "a triable f f t as raised ... and, therefore, the Supreme Court should not have t e proceeding without conducting a hearing") (citing CPLR § 7804[h]); t v. c ickens, . . 4 , st Dep't ( iting CPLR § 7804[h]). \ t also does not deny tha the Supreme Court dismissed this Article ithout the required § 7804[h] hearing. ll Further, it concedes that t te ents contained in document submitted by a party for the truth of the rted for ed the basis of the dismissal. 12 ly characterizes R. 14-16 as "admissions" by Katie to t tient records." Respondent's Br. at 10-11. R. 114-16, in fact, 10 Cj als ("Except as provided in subdiv sion (c) of this rule [a motion for shall be denied if any party shall show fact sufficient to require a trial of f "). 11 Respondent's . 12 S e i . t , . 6 includes e-mail messages from Respondent’s employees, as well as summaries prepared by students of witness statements. Such e-mails and memoranda are not "admissions" of Katie as the non-moving party, but hearsay submitted by the moving party, Respondent, containing statements by out-of-court declarants offered for the truth of the matter asserted. See Hochhauser v. Electric Ins. Co., 46 A.D.3d 174, 182-83, 844 N.Y.S.2d 374, 380-81 (2dDep’t 2007) (holding that statement in a business record offered for its truth was "impermissible hearsay"); Wharton v. State University of New York at Buffalo, No. 07—CV-1 16A, 2011 WL 1486554, at *4 (W.D.N.Y. Apr. 19, 2011) (excluding hearsay e-mail "evidence" because business records exception "will not cover most of the numerous e-mail messages that plaintiff has submitted") (citing Morisseau v. DLA Piper, 532 F.Supp.2d 595, 621 n. 163 (S.D.N.Y. 2008) (unsworn emails admissible only to "prove the fact that they were made"). 13 Far from admitting to falsifying or forging patient treatment records, Katie expressly denied having done this. R. 436-437. In fact, Respondent’s "documentary evidence" was made up of internal self- serving memoranda prepared by Meeker and Hershkowitz and delivered to the Investigating Panel ("IP"). This "evidence" therefore constituted hearsay which Justice Schlesinger erred in crediting. See, e.g., Fay v. Vargas, 67 A.D.3d 568, 13 See generally Milbrandt & Co., Inc. v. Griffin, 5 Misc.3d 1011(A), 798 N.Y.S.2d 711 (Table), 2004 WL 2532292, at *34 (N.Y. Sup. Ct., Westchester Cty., Oct. 7, 2004) (evidence that "essentially paraphrases" other evidence is inadmissible hearsay). 7 il essages from Respondent's employ es, as well a su maries students of witne s statements. Such e-mails and memoranda are not i s" of atie as the non-moving party, but hearsay submitted by the i art , espondent, containing statements by out-of-court declarants f the truth of the matter a serted. ser v. Electric Ins. Co., 46 . , 380-81 (2d Dep't 2 07) (holding that t i a business record offered for its truth was "impermissible he rsay"); t te University a/New York at Buffalo, 07-CV- 16A, 20 1 WL *4 . . . . pr. 19,2011) (excluding hearsay e-mail "evidence" si ess records exception "will not cover most of the numerous e-mail t lainti f has submi ted") (c ting v. LA Piper, . . . . 2008) (unsworn emails admi sible only to fact that they were made,,).13 a i ting to falsifying or forging t t r rds, atie expre sly denied having done this. R. 436-437. dent's "documentary evidence" was made up of internal self- r da prepared by M eker and Hershkowitz an deliv red o the . This "evidence" therefore consti uted hearsay which lesinger e red in crediting. , v. Vargas, 13 S e generally Milbrandt & Co., Inc. v. Griffin, i . 7 l , t -4 (N. . Sup. Ct., estchester Cty., Oct. 7, 4) (evidence t r idence is inad issible hearsay). 569, 888 N.Y.S.2d 405, 405 (1st Dep’t 2009) (incident report subsequently prepared by police officer was inadmissible because it "contains [] hearsay, and presumably self-serving, statements ... as to the ultimate issue of fact."); Powell v. Javier, 24 Misc.3d 14 1(A) (Table), 2009 WL 2407841, * 1(1st Dep’t 2009) ("unsworn, self-serving statements" inadmissible on motion practice under CPLR); Wapnick v. Board of Regents of University of State off. V., 41 A.D.2d 795, 796, 341 N.Y.S.2d 366, 367 (3d Dep’t 1973) (rejecting dismissal of Article 78 petition that was based on a conclusion relying on an affidavit that "was unsworn, and therefore amounted to no more than hearsay"); see also Basile v. Albany College of Pharmacy of Union University, 279 A.D.2d 770, 771, 719 N.Y.S.2d 199, 201 (3d Dep’t 2001) (refusing to dismiss Article 78 petition because hearsay does not "rationally support the determinations of the Committee"); Andersen v. Weinroth, 13 Misc.3d 1204(A), 824 N.Y.S.2d 752 (Table), 2006 WL 2569959, (N.Y. Sup. Ct., New York Cty., Sept. 5, 2006) (rejecting defendant’s internal memoranda as "self-serving" and "not credible") Respondent argues that Justice Schlesinger was entitled to take "judicial notice" of its internal memoranda "to the extent they discredited inconsistent allegations" by Katie. Defendant’s Brief in Case No. 103462/2010 [herein after "Defendant’s Plenary Opp. Br."] at 19. However, judicial notice is improper even of sworn affidavits or depositions, let alone "hearsay and opinion," because the , , . . l p't 2009) (incident report subsequently red by police o ficer was inadmissible because it "contains [] he rsay, and l self-serving, statements .. as to the ultimate issue of fact. "); e l v. . 14 , 2009 L 2407841, * 1 (1st Dep't 2009) r , self-serving statements" inadmissible on motion pra tice under CPLR); rd a/ ents a/ niversity a/State a/N.Y., 1 , . . 66, 7 (3d Dep't 1973) (rejecting dismissal of Article 78 petition sed on a conclusion relying on an affidavi that "was unsworn, and a ounted to no more than hearsay"); sile v. lbany Co lege 0/ y a/ ion University, , 771, 719 N.Y.S.2d 1 9,201 (3d ' (refusing to dismi s Article 78 pet tion because hearsay does not ll support the detenninations of the Co mittee"); v. einroth, , 24 .Y.S.2d 752 (Table), 2 06 WL r ty., Sept. i efendant's internal memoranda as and "not credible"). t argues that Justice Schlesinger was entitled to take "judicial f it i ter al e oranda "to the exten they discredited incon istent Defendant's Brief in Case No. 10346212010 [h rein after t' t 1 However, judicial notice is improper even r sitions, let alone "hearsay and opinion," because the 8 courts may not take judicial notice of a "fact’ which is controverted." Walker ex rel. Velilla v. City of New York, 46 A.D.3d 278, 282, 847 N.Y.S.2d 173, 175-76 (1st Dep’t 2007); accord Dollas v. W.R. Grace and Co., 225 A.D.2d 319, 320, 639 N.Y.S.2d 323 (1st Dep’t 1996) ("A Court may only apply judicial notice to matters of common and general knowledge which are well established and authoritatively settled, and are not doubtful or uncertain."); Miriam Osborn Memorial Home Assn v. Assessor of City of Rye, 9 Misc.3d 1019, 1034, 800 N.Y.S.2d 909, 913 (N.Y. Sup. Ct. Westchester Cty., 2005) ("Judicial notice of a fact is only proper where there are ’adjudicative facts’ which are commonly known to exist") The poor quality of the "documentary evidence" in this case distinguishes it from Flores v. New York Univ., Index No. 112583/09 (N.Y. Sup. Ct., NY County, Dec. 4, 2009). That case is distinguishable because it involved seven signed affidavits attesting to the petitioner’s cheating in class, including two involving personal observations of cheating. See id., slip op. at 2. The court expressly noted that "Petitioner was found to have cheated on a quiz" and the "College substantially complied with its own Code." Id., slip. op. at 5. In Katie’s case, there were no signed affidavits attesting to cheating on which this Court can rely to affirm the dismissal. Instead, there is ambiguous documentary evidence at best, and Katie is entitled to a hearing on these ambiguities and issues of fact. The statements cited by NYU here are unsigned emails and summaries of oral t t j icial notice of a "'fact' which is controverted." l ex I Veli la v. City of New York, . . 278, 282, 847 N.Y.S.2d 173, t ep't 2007); rd ollas v. W . Grace and Co., . .2d 319, 320, 639 . . . d 32 (1st Dep't 1 96) ("A Court may only a ply jud cial notice to matters f and general knowledge which are well established and authoritatively are not doubtful or uncertain."); sborn e orial o e A s'n sessor of City afRye, . 1019, 1034, 8 0 N.Y.S.2d 909, 913 (N.Y. stchester Cty., 2 05) ("Judicial notice of a fact is only proper where ' ti facts' hich are commonly known to exist"). lit f the "documentary evidence" in this case distinguishes it v. e York Univ., 112583/09 (N.Y. Sup. Ct., NY County, That case is distinguishable because t involved s ven signed ti t t e petitioner's cheating in cla s, including two involving servations of cheating. i The court expre sly noted i er s found to have cheated on a quiz" and the "College lied ith its own Code." ' i its a testing to cheating on which this Court can rely to Instead, there is ambiguous documentary evidence at best, earing on these ambiguities and issues o fact. The t here are unsigned emails and su maries of oral 9 interviews, rather than affidavits. Moreover, unlike Flores, Katie’s case did not involve a violation of NYU’s academic standards, for the Academic Standards and Policies for the Predoctoral Program in Dentistry at NYU College of Dentistry never once set forth an academic PMV requirement. See R. 318-21, 360-83. Thus, students other than Katie were permitted to graduate despite submitting inaccurate encounter forms. R. 321. This made Katie’s expulsion arbitrary. In any event, even if this Court accepts the alleged documentary evidence as admissible, it does not "resolve[] all factual issues in [defendant’s] favor," establish "undisputed facts" or "clearly contradict[]" Katie’s petition under Article 78, as Respondent’s own case law requires for a dismissal based on documentary evidence. Respondent’s Article 78 Opp. Br. at 14. Specifically, even if the Peer Review Board Proposal, which Respondent alleges to be the "applicable rules," was in effect, Respondent admits that it did not produce the witnesses against Katie so that she could question them, as was her right under the PRB Proposal. See id. at 17-18. This presents at least one issue of fact concerning whether Respondent complied with its own procedures. Moreover, the PRB Proposal required that the "supporting evidence" be presented to the Investigating Panel and a hearing conducted so as to achieve "substantial justice." R. 265. Yet Katie’s request that the evidence be brought before the PRB was rejected by Respondent, without comment. R. 76, 181, 322-24, 412. Respondent’s faculty member Eric Ploumis 10 interviews, rather than affidavits. oreover, unlike Flores, Katie's case did n ot involve a violation f 's f t cade ic Standard s and Policies for the Pre t r l ra in entistry at NYU College of Dentistry never once set forth a a i requirement. See R. 318-21, 360-83. Thus, students other than atie r er i ted to graduate despite submitting inaccu rate encounter for s. . . This made Katie's expulsion arbitrary. In any event, e if t i ourt accepts the alleged documentary evidence as admissible, it does t "r l [] a l factual i sues in [defendant's] favor," establish "undisp te f t or "clearly contradict[]" Katie's petition under A rticle 78, as Respondent's case law requires for a dismi sal based on documen tary evidence. Respondent's Article 78 O p. Br. at 14. Specifically, even if the P eer Review Board roposal, which Respondent alleges to be the "applicable rules ," was in effect, Respondent admits that it id not produce the witnesses against Katie so that she could question them, as was he right under the PRB Proposal. Se e id. at 17-18. This presents at least one issue of fact concer ing whether Respond ent complied ith its own procedures. Moreover, the PRB Pr posal required tha t the "supporting evidence" be presented to the Investigating Panel and a hearing conducted so as to achieve "substantial justice." R. 265. Yet Katie's request that the evidence be brought before the PRB was rejected by Respondent, without comment. R. 76, 181,3 2-24,412. Respondent's faculty member Eric Ploum is 10 submitted an affidavit showing that Respondent’s Dean told him that "no matter what the PRB decided, the Deans could send the decision back until they got the holding that they desired." R. 181. Respondent’s Dean steered Katie’s case into a forum of students whom Professor Ploumis regarded as "susceptible to influence from the dean and administration," in violation of the Code of Ethics which requires "independent and objective" faculty decision makers. R. 180-81. Finally, there is an issue of fact regarding whether Respondent arbitrarily violated its own commitment to grant reasonable accommodations to students with disabilities after Katie made a request on May 30, 2009, for a reasonable accommodation that her attorney be allowed to question the witnesses against her in a hearing conducted in September or October 2009. R. 121. Numerous procedures of Respondent established Katie’s right to such an accommodation. R. 122-26, 141, 227-28, 239. B. There Are Issues of Fact Concerning Whether Respondent Acted Arbitrarily and Irrationally in Expelling Katie, in Violation of Its Own Procedures 1. There Is an Issue of Fact Concerning Whether Katie Could Examine Witnesses Against Her as Required by the Peer Review Board Proposal and the Code of Ethics It is clear from Katie’s filings and Respondent’s brief that Respondent violated its own Peer Review Board Proposal. The most important right that it guarantees to students is that in all cases: "Each side shall have a fair opportunity 11 ffi avit sho ing that Respondent's Dean told him that "no matter t decided, the Deans could send the dec sion back until they got the R. 181. Respondent's Dean ste red Katie's case into a f st dents hom Profe sor Ploumis regarded as "susceptible to influence and administration," in violation of the Code of Ethics which i endent and objective" faculty decision makers. R. 180-81. t re is an i sue of fact regarding whether Respondent arbitrarily it o n commitment to grant reasonable acco modations to students with fter atie ade a request on May 30, 2 09, for a reasonable ti t at her a torney be allowed to question the witnes es gainst her i t er or ctober 2009. R. 121. Numerous f ent established Katie's right to such an a co modation. R. . r r Issues of Fact Concerning Whether Respondent Acted Irr ti na ly in Expelling Katie, in Violation of Its Own . here Is an I sue of Fact Concerning Whether Katie Could Examine ainst er as Required by the Peer Review Board the Code of Ethics tie' filings and Respondent's brief that Respondent ie oard Proposal. The most important right tha it t ts is that in a l cases: "Each side shall have a fair opportunity to question the witnesses of the other." R. 313. (emphasis added). It is undisputed that Katie asked for the presence at her hearing of all witnesses whose testimony was set forth in PRB investigating panel report, especially Dr. Meeker and Dr. Hershkowitz. Respondent refused to call these witnesses at Katie’s hearing, in clear violation of the Code of Ethics and Peer Review Board Proposal. As Dr. Ploumis says: 10. The manner in which Katie’s hearing in front of the PRB was conducted can hardly be called a matter of substantial justice. Unlike the Code of Ethics that was in place when Katie became a NYU student, the PRB rules denied her outside counsel. I served as Katie’s representative in the hearing, however my role was extremely limited by the PRB rules and by Dr. Palatta. 11. At the hearing, I was not allowed to question witnesses or participate beyond advising Katie. Dr. Palatta threatened that, were Ito interject or participate in any otherway, I would be removed from the hearing and Katie would have to proceed alone. I wanted to protest against Dr. Palatta’s unfair restrictions, however, due to Katie’s ongoing emotional concerns, I feared for her safety and future should she be without a supporter in the proceedings. 12. NYU would not take even the most basic steps towards conducting the hearing in a manner compliant with substantial justice. Katie’s requests for documents and contact information for witnesses were summarily denied. Katie was not even provided with a means for contacting Dr. Meeker, the coordinator of her PMV hours who left NYU in August of 2009. Additionally, my request that Dr. Hershkowitz and Mr. Cornejo be ordered to attend the hearing were denied even though their false statements were the basis of the charges against Katie. Properly defending Katie against the charges without adequate access to witnesses and documents was an impossible task. 12 ti the itnesses of . R. 313. (emphasis a ded). It is undisputed t tie asked for the presence at her hearing of all witnes es whos estimony set forth in PRB investigating panel report, especially Dr. Me ker and Dr. it . Respondent refused to call th se witnes es at Katie's hearing, in l ti of the Code of Ethics and P er Review Board Proposal. As Dr. is says: r in hich atie's hearing in front of the PRB was n ardly be ca led a ma ter of substantial justice. Unlike the f t ics that was in place when Katie became a NYU student, the E ie er outside counsel. I served as Katie's represen ative in i , however my role was extremely limited by the PRE rules and latta. ri , I as not allowed to question witnesses or participate i i t Dr. Palatta threatened that, were I to interject or t i a other way, I would be removed from the hearing and Katie t r ceed alone. I wanted to protest against Dr. P latta's unfair er, due to Katie's ongoing emotional concerns, I feared t and future should she be without a su porter in the . . ld ot take even the most basic steps towards conducting r c liant ith substantial justice. Katie's reque ts t and contact information for witnesses w re su marily Katie was not even provided with a means for contacting Dr. coordinator of her PMV hours who left NYU in August of2009. , request that Dr. Hershkowitz and Mr. Cornejo be ordered aring ere denied even though their false s atements w re the i t ti . Properly d fending Katie gainst the t adequate a ce s to witne ses an documents was an R. 412-413. Katie corroborates this account in her affidavit. R. 73-76. Thus, there is an issue of fact as to an important procedural violation in Respondent’s zeal to dismiss Katie without a fair hearing under its own rules. When Katie attended her hearing in October, 2009, she was unable to question witnesses against her, most importantly Dr. Meeker. Accordingly, there was no fair opportunity to question witnesses and no consideration of the supporting evidence, both of which were required by the Code of Ethics and the Peer Review Board Proposal. The hearing offered to Katie violated not only Respondent’s own rules, but also canonical norms of due process. This Court has recognized that "procedural due process" in the expulsion context requires being "represented by counsel, [and having] had a full and fair opportunity to contest the charges, present relevant proof and cross-examine witnesses." Sabin v State Univ. off. Y. Mar. Coil, at Fort Schuyler, 92 A.D.2d 831, 832, 460 N.Y.S.2d 332 (1st Dep’t 1983). In another case, before affirming the expulsion of a student for cheating on a final examination, the court emphasized that the student was "allowed to cross-examine the professor who had caused notes to be placed in their confidential files [with a charge]." Matter ofNawaz v State Univ. ofN.Y. Univ. at Buffalo School of Dental Medicine, 295 A.D.2d 944, 945, 744 N.Y.S.2d 590 (4th Dep’t 2002) (emphasis added). In a third case cited by Respondent, the court held that a one-year leave of absence from a university was only justifiable because it occurred after "testimony 13 r . Katie co roborates this a count in her a fidavit. R.73-76. Thus, th re i e of fact as to an important procedural violation in Respondent's zeal to it t f ir earing under its o n rules. When Katie atten ed her i in ctober, 2 09, she was unable to question witnes es gainst her, most l r. A cordingly, there was no fair opportunity to question s s and no consideration of the su porting evidence, both of which were by the Code of Ethics and the P er Review Board Proposal. i ffered to atie violated not only Respondent's own rules, but l r s of due process. This Court has recognized that "procedural ss" in the expulsion context requires being "repr sented by counsel, [and ad a fu l and fair o portunity to contest the charges, pr sent relevant f cross-examine witne ses." iv. /N. . all. . . ( st ep't 1983). In another r affir ing the expulsion of a student for cheating on a final , the court emphasized tha the student was d t cross-examine r fess r t s to be placed in their confidential files [with a / awaz v State Univ. a/NY Univ. at Buffalo School a/Dental , , . .S.2d 590 (4th Dep't 2 02) (emphasis In a third case cited by Respondent, the court held that a one-year leave of iversity was only justifiable because it occurred after "testimony of two eyewitnesses," the "presentation of evidence, opportunity for confrontation and cross-examination of witnesses, and sufficiency of evidence." Matter of Beilis v. Albany Med. Coil, of Union Univ., 136 A.D.2d 42, 44, 525 N.Y.S.2d 932 (3d Dep’t 1988). In Mary M v. Clark, 118 Misc.2d 98 (N.Y. Sup. Ct., Cortland County, 1983), the court reversed the college’s finding that a student had cheated, and expunged all references to it from her academic record. In so doing, the court held: "minimal procedural due process requires that petitioner be given (1) written notice of the charges against her, (2) a written statement of the fact finders as to the evidence relied on and the reasons for the action taken, and (3) an opportunity to call witnesses and present documentary evidence." Id. at 100 (emphasis added) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). As in that case, Katie could not question Respondent’s witnesses or present documentary evidence. This Court should reverse the expulsion, and at a minimum, order a new hearing in which Katie may call Respondent’s witnesses and examine its documentary evidence, including her Student Progress Reports and the records of the Council on Ethics and Professionalism regarding Respondent’s treatment of the PMV fees. 2. There Is an Issue of Fact Concerning Whether the Code of Ethics and Professionalism Guaranteed Katie’s Right to Have an Attorney Present at Her Hearing Katie’s verified petition and the corrected affidavit of her advisor, Dr. Eric Ploumis, established that Respondent’s Code of Ethics and Professionalism was in 14 f e itnesses," the "presentation of evidence, rtunity for confrontation r ss-examination o(witne ses, sufficiency of evidence." tt r f Beilis y . Co i. of Union Univ., . , 44, . . .2d 932 (3d ' ). v. Clark, ( . . Sup. Ct., Cortland 1983), the court reversed the college's finding that a student had cheated, all references to it from her academic record. In so doing, the court i i al procedural due proce s requires that petitioner be given (1) written f t e charges against her, (2) a written s atement of the fact finders as o the lied on and the reasons for the action taken, and (3) an opportuni y to s ent docu entary evidence." asis added) jfv. ll, As in that case, Katie could not dent's itnesses or present documentary evidence. This Court t e expulsion, and at a minimum, order a new hearing in which ll espondent's witne ses and examine its documentary evidence, tudent Progre s Reports and the records of the Council on Ethics lis re arding Respondent's treatment of the PMV f es. There Is an I sue of Fact Concerning Whether the Code of Ethics i nalism Guaranteed Katie's Righ to Have an Attorney t t er earing ' ifie petition and the corrected affidavit of her advisor, Dr. Eric i t at espondent's Code of Ethics and Professionalism was in effect at the time of her expulsion, and that the PRB Proposal did not become final until 2010. R. 26-29, 37-38, 318-24, 402-10, 411-13, 427-34. In response, Respondent argues Katie admitted that the PRB Proposal was in effect, and that Justice Schlesinger was not required to accept the corrected Ploumis affidavit submitting the Code of Ethics into evidence as the applicable rules. 14 However, courts in New York routinely permit such corrections, and do not insist on making findings based on an uncorrected affidavit, as Respondent successfully urged the Supreme Court to do. See, e.g., CPLR § 2001 (providing that "if a substantial right of a party is not prejudiced, the mistake, omission, defect or irregularity shall be disregarded, provided that any applicable fees shall be paid."); Simpson v. Tommy Hilfiger USA., Inc., 48 A.D.3d 389, 392, 850 N.Y.S.2d 629, 63 2(2d Dep’t 2008) ("reasonable justification" for submitting amended pleadings include where original filings were not intentional or willful); In re Ludlam ’s Will, 26 Misc.2d 324, 325, 204 N.Y.S.2d 873 (N.Y. Sun. Ct., Nassau Cty., 1960) (accepting "a corrected affidavit of service"); Carmody-Wait, New York Practice with Forms 2d § 4:35 (Westlaw 2011) (under CPLR § 2001, "the courts have been liberal in correcting and allowing amendments of affidavits."). Moreover, Respondent’s disability policies guaranteed Katie’s right to a reasonable accommodation of her multiple disabilities. R. 122-26, 141, 227-28, ’’ Respondent’s Br. at 15. 15 ti e of her expulsion, and tha the PRB Proposal id not become final R. 26-29, 37-38, 318-24, 402-10, 4 1-13, 427-34. In response, t argues Katie admitted tha the PRE Proposal was in effect, and that lesinger was not required to a cep the corrected Ploumis affidavit t ode of Ethics into evidence as the applicable rules. Ho e r, i ork routinely permit such corrections, an do not insist on making on an unco rected a fidavit, as Respondent successfully urged the rt t do. e. ., (providing that "if a substantial right i t prejudiced, the mistake, omission, d fect o irregularity shall be r ided that any a plicable f es shall be paid."); v. Tommy A., Inc., , , 850 . .S.2d 629, 63 2(2d Dep't 2 08) l j stification" for submitting amended pleadings include where i ere not intentional or willful); udlam IS , , . . . d 87 (N. . Surr. Ct., Nassau Cty., 1960) (accepting "a i it of service"); Carmody-Wait, r ractice with Forms l 11) (under CPLR § 2 01, "the courts have been liberal in allo ing amendments of affidavits."). ent' isability policies guaranteed Katie's right to a acco odation of her multiple disab l ties. R. 12 -26, 41,227-28, 14 Responde t' r. t 5. 239. The main accommodation that she requested in her connection with her disciplinary proceedings was to have an attorney present to question witnesses on her behalf, in light of her psychotherapist’s sworn affidavit concerning Katie’s difficulties communicating subsequent to her conflict with Dr. Meeker. R. 73-74, 120-21. 3. There Is an Issue of Fact Concerning Whether Supporting Evidence Was Considered at Katie’s Hearing, as Required by the Peer Review Board Proposal and the Code of Ethics and Professionalism The Proposal guarantees that "all other evidence in regard to the charges shall be presented to and considered by the Board," and that the "supporting evidence shall be presented by the Investigating Panel." R. 313 (emphasis added). Respondent concedes that the witnesses to Katie’s alleged misconduct were not presented to and not considered by the Peer Review Board. Respondent’s Br. at 17- 18. Thus, there is an issue of fact as to compliance with the rules set forth in the Proposal. 4. There Is an Issue of Fact Concerning Whether Meeker and Cornejo Made False Statements to the Investigating Panel, Whose Conclusion Respondent’s Dean Accepted Katie’s Article 78 petition alleged that Respondent’s employees made several false and malicious accusations against her to the Investigating Panel, which accusations the Supreme Court accepted uncritically. R. 31-33. Specifically, Respondent alleged repeatedly in their briefs below and before this 16 The main a commodation that she requested in her connection wit her li r proceedings was to have an attorney present to question witnes es on lf, in light of her psychotherapist's sworn affidavit concer ing Katie's unicating subsequent to her conflict with Dr. M eker. R. 73-74, . I a Issue of Fact Concerning Whether Su porting Evidence sidered at Katie's Hearing, as Required by the Peer Review r r sal and the Code of Ethics and Professionalism sal guarantees that i in regard to the charges ted to and considered by the Board," and that the "supporting ted by the Investigating Panel." R. 313 (empha is ad ed). t concedes that the witne ses to Katie's alleged misconduct w re not t t and not considered by the P er Review Board. Respondent's Br. at 17- . hus, there is an i sue o fact as to compliance wit the rules set forth in the Issue of Fact Concerning Whether Meeker and Cornejo Statements to the Investigating Panel, Whose Conclusion ent' ean ccepted ' i l petition a leged that Respondent's employ es made alicious a cusations against her to the Investigating Panel, ti s t e Supreme Court a cepted uncritically. R.31-33. s ondent a leged repeatedly in their briefs below and before this Court, that Katie admitted to being in violation of NYU’s academic requirements and to falsifying patient records. This was not true, as the encounter forms were not patient records. Moreover, Respondent represented to this Court that Meeker advised Katie of PMV fee shortfalls in mid-April, and that Katie admitted being at fault in an email dated May 30, 2009, which was actually before the alleged falsification occurred. 15 It also represented that at Respondent’s "hearing" on Oct. 7, 2009, there were witnesses and evidence presented. R. 9. This, too, was false as documented in Dr. Ploumis’ affidavit. R. 322. These issues of fact also warrant a hearing under CPLR § 7801[h]. 5. There Is an Issue of Fact Concerning Whether the Peer Review Board Was Properly Constituted There remain several other unresolved issues of fact ripe for a hearing. First, the Peer Review Board was supposed to be representative of the DDS students under the governing rules. Two members from each of the four pre-doctoral classes were supposed to be represented on the PRB. R. 306-317. Whether this was true has not been subject to discovery or a hearing. Second, the Chair of the PRB was supposed to be "the President of the Student Council" as "a student adjudicator." See id. Moreover, the College Review Board was meant to consist of three members of the faculty who chose their own chair. See id. These issues of fact exist as well. 15 Respondent’s Br. at 6. 17 Court, that Katie ad itte t i i i lation of NYU's academic requirem ents and to falsifying patient r r . This was not true, as the encounter forms w ere not patient records. reover, Respondent represented to this Court that M eeker advised Katie ofP fe s rtfalls in id-April, and that Katie admitted be ing at fault in an e ail date , 2009, which was actually before the alleged falsification occurred. IS It also represented that at Respondent's "hearing" on Oct. 7,2009, there ere it ess R.9. This, too, was false as documented in r. l i ' R.322. These issues f f ct also wa rant a hearing under CPLR § 7801[h]. 5. There Is an Issue of Fact Concerning Whether the Peer Review Board as r rly stituted There re ain se eral other unresolved i sues o fact ripe for a hearing. First , the Peer Review Board was su posed to be repr sen ative of the DS stude nts under the governing rules. Two members from each of the four pre-doctoral classes were supposed to be represented on the PRB. R. 306-31 7. Whether this wa s true has not been subject to discovery or a hearing. Second, the Chair of the PRB was supposed to be "the President of the Student Council" as "a student adjudica tor." See id. oreover, the College Review Board was meant to consist of three members of the faculty who chose their own chair. S e id. These issues of fact exist as well. 15 Respondent's Br. at 6. 17 C. There Is an Issue of Fact Concerning Whether Katie’s Expulsion Was Disproportionate and "Shocks the Conscience" in Response to an Isolated Incident Katie’s expulsion was arbitrary and disproportionate to the conduct charged, and therefore "shocking to one’s sense of fairness." Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 228, 313 N.E.2d 321 (1974). Termination from an academic program is a shocking and excessive remedy, and should be remitted for imposition of a lesser penalty, when the victim had a previously "unblemished" record. Rindos v. Board of Educ. of Longwood Cent. School Dist., 20 A.D.3d 572, 573, 786 N.Y.S.2d 739 (2d Dep’t 2005); Haynes v. Board of Ed., Cold Springs Harbor Central School Dist., 57 A.D.2d 959, 395 N.Y.S.2d 76 (2d Dept. 1977). The devastating economic impact of losing one’s livelihood outweighs the risk to the public posed by a single instance of misconduct. See, e.g:, Acosta v. New York City Dept. of Educ., 62 A.D.3d 455, 878 N.Y.S.2d 337 (1st Dep’t 2009) (reversing Supreme Court’s dismissal of Article 78 petition of teacher convicted of serious crimes as alleged danger to children or the community, because she was not "an unreasonable danger to those involved," which made decision denying her employment "without sound basis in reason") It is not disputed that Respondent was not harmed financially by any alleged misconduct by Katie because she paid the more than $2,000 in PMV fees that they Issue of Fact Concerning Whether Katie's Expulsion Was te a "Shocks the Conscience" in Response to an cident ie' pulsion was arbitrary and disproportionate to the condu t charged, "shocking to one's sense of fairne s." f l r f f nion Free Sch ol Dist. No.1 of Towns of Scarsdale & Mamaroneck, ty, . 3 (19 ). Termination e ic program is a shocking and excessive remedy, and should be f r i position of a le ser penalty, when the victim had a previously ished" record. v. oard of Educ. of Longw od Cent. Sch ol Dist., . p't v. oard of Ed., r entral School Dist., . (2d The devastating economic impact of losing one's livelihood t risk to the public posed by a single instance of misconduct. , v. e York City Dept. of Educ., . 't ) (reversing Supreme Court's dismi sal of Article 78 pe ition of nvicted of serious crimes as allege danger to children or the t , because she was not "an unreasonable danger to those involved," ecision denying her employment "without sound ba is in reason"). t disputed that Respondent was not harmed financially by any all ged uct by Katie because she paid the more than $2, 00 in PMV fees that they 18 demanded and worked in their clinic as they directed until July in reliance on their statement that she would be allowed to graduate if she did so. R. 66-68, 71-72, 81, 437-38. This fact supports reversing the penalty of dismissal and instructing Respondent to hand down a penalty less severe than dismissal on remand. Goudy v. Schaffer, 24 A.D.3d 764, 765, 808 N.Y.S.2d 712 (2d Dep’t 2005) (reversing penalty of dismissal of school employee under Article 78 where "the petitioner had no prior disciplinary problems" and there was no proof that "finances of the respondent were adversely affected by the petitioner’s transgressions"); Rutkunas v. Stout, 31 A.D.3d 566, 817 N.Y.S.2d 676 (2d Dep’t 2006), leave to appeal granted, 7 N.Y.3d716, 826N.Y.S.2d 181, 859 N.E.2d 921, affirmed as modified by 8 N.Y.3d 897, 834 N.Y.S.2d 73, 865 N.E.2d 1239 (2006). The evidence is undisputed that Katie took this action based on a good faith belief that she was acting under the instruction of program faculty who informed her that she had to produce the PMV fees without having any patients on her roster or she would not be allowed to graduate. R. 70-71, 81. A member of Respondent’s staff named Luz Tartaglia specifically instructed Katie to pay the PMV fees and fill out encounter forms "as if you did them" for patients, but Katie did not put any patients’ names on the forms or otherwise alter any patient chart or treatment record. R. 436. Dr. Hershkowitz had informed Katie: "You’re not 19 demanded and orke i t i li i as t e directed until July in reliance on their statement that she o l ll t if she did so. R. 6-68,71-7 2,81, 437-38. This fact supports reversing the penalty of dismi sal and instructing Respondent to hand a penalty le s severe than dismissal on remand. Go udy v. Schaffer, 24 . . , ( d ep't 2005) (reversin g penalty of dis issal f school employ e under Article 78 wh re "the petitione r had no prior disciplinary problems" and there was no pr of that "fi ances of the respondent ere adversely a fected by the pe tioner's transgressions"); utku nas v. Stout, 31 A. .3d 566, . . .2d 676 (2d Dep't 2 06), t peal gra nted, 7 N.Y.3d 716, 826 N.Y.S.2d 181, 859 N.E.2d 921, ified by 8 N.Y.3d 897, 834 . .S.2d 73, 865 N.E.2d 1239 (2 06). The evidence is undisputed that Katie t ok this action based on a good faith belief that she was acting under the instruction of program faculty who inform ed her that she had to produce the PMV fees without having any patients on her roster or she would not be allo ed to graduate. R. 70-71, 81. A member of Respondent's staff named Luz Tartaglia spec fically instructed Katie to pay th e P V fees and fill out encounter forms "as if you id them" for patients, but K atie did not put any patients' names on the forms or otherwise alter any patient ch art or treatment record. R. 436. Dr. Hershkowitz had informed Katie: "You're not 19 getting any of your patients back. You have to give us the money or you’re not going to graduate." R. 437. Respondent did not deny this in its Brief. A more appropriate sanction under the circumstances is suggested by two cases relied upon by the Supreme Court below: suspension for one year. See Quwrcia v. New York Univ., 41 A.D.3d 295 (1st Dep’t 2007) (student suspended for drug possession); Fernandez v. Columbia Univ., 16 A.D.3d 227 (1st Dep’t 2005) (student suspended for sending harassing communications to other students); cf. Matter of Kramer vKinney, 87 A.D.2d 870, 870-71, 449 N.Y.S.2d 312 (2d Dep’t 1982) (one student suspended for "cruelty" towards subordinate); Matter of Beilis v Albany Med. Coil, of Union Univ., 136 A.D.2d 42, 44, 525 N.Y.S.2d 932 (3d Dep’t 1988) (student given one-year leave of absence after second offense of cheating); Tedeschi v. Wagner College, 49 N.Y.2d 652, 655-56, 404 N.E.2d 1302, 1306 (1980) (student suspended for assault and refusal to take a final examination); Matter of Ryan v. Hofstra Univ., 67 Misc.2d 651, 662 (N.Y. Sup. Ct., Nassau Country, 1971) (explaining expulsion is a severe sanction and that the should impose other, more lenient punishments before expelling a student). The cases cited by Respondent are distinguishable on their face. Ebert v. Yeshiva University, 28 A.D.3d 315 (1st Dep’t 2006) (student expelled for physically assaulting another student); Sabin v State Univ. off. V Mar. Coil. at Fort Schuyler, 92 A.D.2d 831, 832, 460 N.Y.S.2d 332 (1st Dep’t 1983) (student 20 f r patients back. You have to give us the money or you're not . R.437. Respondent id not deny th s in its Brief. r appropriate sanction under the circumstances is suggested by two lied upon by the Supreme Court below: si n r. i v. e York Univ., . 't ) (student suspended ssession); ez v. Columbia Univ., p't t spended for sending hara sing co munications t other students); f f ra er v Ki ney, , 870-71,449 N.Y.S.2d 312 (2d ' 1 ) (one student suspended for "cruelty" toward subordinate); lbany ed. Co i. of Union Univ., , ,5 . ' 1 ) (student given one-year leave of absence after second offense of ner Co lege, 13 , t t suspended for a sault and refusal to take a final examination); f n v. ofstra Univ., . t., assau 1 ) (explaining expulsion is a severe sanction and that the should re lenient punishments befor expelling a student). ite y Respondent are distinguishable on their face. t v. niversity, ( st ep't 2006) (student expelled for l ssaulting another student); N. Y Mar. Coli. at , 832, 60 N.Y.S.2d 32 (1st Dep't 1983) (student expelled for vandalism and drug use); Matter of Kramer v Kinney, 87 A.D.2d 870, 870-71, 449 N.Y.S.2d 312 (2d Dep’t 1982) (one student expelled and one suspended for "cruelty"); Matter of Carr v St. John’s Univ., N.Y., 17 A.D.2d 632, 231 N.Y.S.2d 410 (2d Dep’t 1962) (archaic case involving student’s alleged marriage in violation of Catholic canon law). Cf also Matter of Featherstone v Franco, 95 N.Y.2d 550, 552-53 720 N.Y.S.2d 93 (2000) (assault and knifing) Respondent’s faculty member Dr. Ploumis wrote in his affidavit that in his "experience, students charged with cheating on class work or clinical documentation are typically required to repeat the class or academic year." R. 320. This made Katie’s punishment "excessive and disproportionate," and therefore irrational, in light of Respondent’s established practice and precedents. In another case roughly contemporaneously, with Katie’s, the "Council on Ethics and Professionalism," not the PRB, heard a case involving a student’s inconsistencies in paperwork submitted to a Group Practice Director (Meeker in Katie’s case). R. 393. The student was asked to repeat the academic year, not expelled. Id. In another case involving repeated cheating by a student on an examination, the Council on Ethics and Professionalism issued a written reprimand because the student suffered from an anxiety disorder, as did Katie. R. 393. In a third case of cheating, this time by plagiarism, the charges were resolved by a "censure." Id. It 21 expe led for vandalism and drug use); a ter of Kramer v Ki ney, 8 . .2d 870, 70-71,449 N.Y.S.2d 312 (2d Dep't 1982) (one student expelled and one s spended for "cruelty"); atter of Ca r v St. John's Univ., N.Y., . . 632, . .S.2d 410 (2d Dep't 1962) (archaic case involving student's all ged rriage in violation of Catholi canon law). f also Ma ter of Featherstone v , 9 . .2d , 55 - . .S.2d 93 (2 0) (a sault and kn fing). s ondent's faculty member Dr. Ploumis wrote in his affidavit that in his rience, students charged with cheating on class work or clinical t tion are typica ly required to repea the class or academic year." R.320. atie's punishment "exce sive and disproportionate," and th refore i li t f espondent's established practice and precedents. In another te poraneously, with Katie's, the "Council on Ethics and lis ," not the PRE, heard a case involving a student's incon istencies itted to a Group Practice Director (M eker in Katie's case). R. . The student was asked to repea the academic year, not expelled. . I i lving repeated cheating by a student on an examination, the i and Profe sionalism i sued a written reprimand because the st t i , a did atie. R.393. In a third case of c t plagiarism, the charges were resolved by a "censure." I . It 21 is only in Katie’s case that the Council on Ethics and Professionalism was arbitrarily done away with, and the penalty of dismissal was irrationally imposed. CONCLUSION Wherefore, Petitioner-Appellant, Katie Kickertz respectfully requests this Court reverse the Order of the New York County Supreme Court dated February 3, 2010, insofar as it denied Petitioner-Appellant’s Article 78 Petition and adjudged that the Article 78 Proceeding be dismissed, and remand the cause to the Supreme Court for a hearing under CPLR § 7804[h], or, in the alternative, that this Court reverse the decision expelling Katie from Respondent’s DDS program, and enter a new ruling granting Katie’s Article 78 petition and instructing Respondent to grant her the DDS degree upon certification that her coursework has been completed and her PMV has been paid. Dated: Cane Place, New York Feb. 17, 2012 Respectfully submitted, LEEDS MORELLI & BROWN, P.C. Attorneys for Appellant ,Mkv~.a_ffmsm V00MAN One Old Country Road, Suite 347 Carle Place, New York 11514 (516) 873-9550 (Phone) (516) 747-5024 (Facsimile) 22 i o l in atie's case that the Council on Ethics and Professionalism was r itrarily done away with, and the penalty of dismissal was irrationally imposed. I r f re, Petitioner-A pellant, Katie Kickertz respectfully requests this rt re erse the Order of the New York County Supreme Court dated February 3, i s far as it denied Petitioner-A pellant's Article 78 Petition and adjudged t t rticle 78 Proc eding be dismissed, and remand the cause o the Supr me f a hearing under CPLR § r, in the alternative, tha this Court t decision expe ling Katie from Respondent's DS program, and enter a i ranting atie's Article 78 petition and instructing Respondent to grant degree upon certification that her coursework has been completed and i . rle Place, New York . 7, l sub i ted, I & BROWN, P.C. ppe lant BY:~~cK.~ , Suite 347 rk 11514 si ile) APPELLATE DIVISION - FIRST DEPARTMENT PRINTING SPECIFICATIONS STATEMENT I hereby certify pursuant to 22 NYCRR section 600.10 that the foregoing brief was prepared on a computer using Microsoft Word for Windows. Type. A proportionally-spaced typeface was used, as follows: Name of Typeface: Times New Roman Point Size: 14 Line Spacing: Double Word Count. The total number of words in this brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of citations, proof of service and this Statement is 5,260. Dated: New York, New York February 17, 2012 LEEDS MORELLI & BROWN, P.C. Attorneys for Appellant One Old Country Road, Suite 347 Cane Place, New York 11514 (516) 873-9550 (Phone) (516) 747-5024 (Facsimile) 23 rtify pursuant to 2 NYC R section 600.10 that the foregoing brief was on a co puter using Microsoft Word for Windows. r rtiona ly-spaced typeface was used, as follows: f ypeface: Times New Roman i : 14 i : ouble t. he total number of words in this brief, inclusive of point headings exclusive of pages containing the table of contents, table of roof of service and this Statement is ork, New York 17, 12 LI & BROWN, P.C. s r Appe lant By: ~OW0g{·~ l ountry Road, Suite 347 rle Place, New York 1514 ( ) ( csi ile)