In the Matter of Katie Kickertz, Respondent,v.New York University, Appellant.BriefN.Y.February 10, 2015NEW YORK UNIVERSITY A private university in the public service Associate General Counsel OFFICE OF LEGAL COUNSEL ELMER HOLMES BOBST LIBRARY 70 WASHINGTON SQUARE SOUTH NEW YORK, N.Y. 10012-1091 TELEPHONE: (212) 998-2258 FACSIMILE: (212) 995-3048 EwMAIL: nancy.ki!son@nyu.edu October 18, 2013 By Hand Honorable Judges of the New York Court of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Rule 500.11 Letter Brief of Appellant New York University Matter of Kickertz v. New York University APL-2013-00248 New York County Clerk's Index No. 103461/2010 To The Honorable Judges of the New York Court of Appeals: We are counsel for Respondent-Appellant, New York University ("NYU'' or "the University") in the above-entitled matter. On August 21, 2013, the University filed a notice of appeal from a final judgment of the Supreme Court in this case following a 3-2 decision of the Appellate Division, First Department, granting petitioner's Article 78 petition, although the University had no opportunity to {00016590.2) answer the petition or contest its factual allegations. On September 26, 2013, this Court designated the University’s appeal for review pursuant to Rule 500.11.1 Preliminary Statement As we show below, the Appellate Division, First Department erred as a matter of law by reversing a Supreme Court order granting a pre-answer motion to dismiss and instead granting an Article 78 petition – over the dissent of two Justices – without allowing the University to file an answer, although there were many significant factual disputes. The majority opinion of the Appellate Division noted those disputes – regarding, for example, when petitioner Katie Kickertz, (“Kickertz”) first learned that she had an academic deficiency, how much time she had to correct it, and whether any extenuating circumstances somehow justified her admitted falsification of certain records she submitted in an effort to make it appear she had met the University’s requirements. And the Appellate Division majority noted that the record was incomplete and that important documents – including the minutes of the hearing of the University’s disciplinary review board – were not contained in the record then before the court. Yet notwithstanding these factual disputes and the incomplete record, the majority of the Appellate Division granted Kickertz’s Article 78 petition, based on her self-serving presentation of disputed facts, without giving the University an opportunity to answer the petition and 1 The University respectfully reserves any arguments from its submission to the courts below that are omitted here, pursuant to Rule 500.11(f). {00016590.2} 2 contest the facts. As the two dissenting Justices pointed out, this decision is a clear error of law, and squarely in conflict with this Court’s decision in Matter of Nassau BOCES Central Council of Teachers v. Board of Cooperative Educational Servs. of Nassau Co., 63 N.Y.2d 100, 469 N.E.2d 511, 480 N.Y.S.2d 190 (1984), requiring that the respondent receive an opportunity to answer before the court can properly resolve an Article 78 petition on the merits. Moreover, by in effect granting summary judgment against the University without notice, the Appellate Division violated this Court’s teachings in Matter of Bethelite Community Church v. Department of Environmental Protection of the City of New York, 8 N.Y.3d 1001, 870 N.E.2d 679, 839 N.Y.S.2d 440 (2007). The Appellate Division’s ruling was not only procedurally incorrect in failing to give the University an opportunity to answer, but also substantively erroneous, as a matter of law. Disregarding this Court’s controlling decision in Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 404 N.E.2d 1302, 427 N.Y.S.2d 760 (1980), the Appellate Division improperly overturned the University’s disciplinary determination. The Appellate Division found that the University did not substantially comply with its applicable procedures, but the court could reach that result only by disregarding the express language of the University’s disciplinary code and improperly imposing on the University due process requirements that are completely inapposite in the context of the academic and disciplinary decisions of {00016590.2} 3 a private university. The court then improperly found that the decision to expel a dental student who falsified patient records rather than fulfilling her degree requirements was shocking to the judicial conscience, based entirely on the student’s self-serving account of events, and completely disregarding the contrary views of the University professors who gave information to investigators for the disciplinary body. For all of these reasons, the Appellate Division’s decision must be reversed. The original determination of the Supreme Court to dismiss the petition should be reinstated, or, at a minimum, the case remanded to the Supreme Court to permit the University to answer the petition and for further appropriate proceedings. Procedural History Kickertz filed an Article 78 petition on or about March 15, 2010. On April 2, 2010, the University responded to the petition by moving to dismiss pursuant to CPLR 3211§§(a)(1) and 3211(a)(7). (R. 268-69).2 The New York County Supreme Court granted the University’s motion to dismiss in an Order entered on February 14, 2011(the “February 2011 Order”). (R. 4-20). Kickertz appealed to the Appellate Division, First Department, which entered a Decision on October 11 2012 (the “October 2012 Decision”), both reversing the Supreme Court’s February 2 Citations in the form “R. __,” with the appropriate page numbers inserted, refer to the Record on Appeal that Kickertz submitted to the Appellate Division, which the University is filing with this Court pursuant to the Court’s letter dated September 26, 2013. {00016590.2} 4 2011 Order and granting Kickertz’s Article 78 Petition. In re Kickertz, 99 A.D.3d 502, 952 N.Y.S.2d 147 (1st Dept. 2012). Two Appellate Division judges dissented, noting that the majority had improperly granted the petition without affording the University an opportunity to answer. On November 14, 2012, the University appealed to this Court from the October 2012 Decision of the Appellate Division. In an Order entered on January 15, 2013, however, this Court granted Kickertz’s motion to dismiss the University’s previous appeal “on the ground that the [October 2012 Decision did] not finally determine the proceeding within the meaning of the Constitution.” In re Kickertz, 20 N.Y.3d 1004, 983 N.E.2d 765, 959 N.Y.S.2d 687 (2013). The University then moved before the Supreme Court for entry of a final judgment. The Supreme Court granted that motion and final judgment was entered on July 24, 2013 (“the Judgment”). The University has appealed from the Judgment as of right pursuant to CPLR 5601(d). Statement of Jurisdiction The University’s appeal from the Judgment brings the Appellate Division’s October 2012 Decision before this Court for review pursuant to CPLR 5601(d), because the Judgment finally determined the Article 78 proceeding. The University has an appeal as of right because in the October 2012 Decision, two {00016590.2} 5 Justices of the Appellate Division dissented on the question whether the court should have permitted the University to answer the petition. Questions Presented 1. Did the Appellate Division err as a matter of law when it granted Kickertz’s Article 78 petition, without allowing the University an opportunity to respond to the petition on the merits, although the Supreme Court had granted the University’s pre-answer motion to dismiss and there were numerous sharply disputed issues of fact? 2. Did the Appellate Division err as a matter of law when it failed to uphold the University’s determination to impose discipline on Kickertz, and in determining that the University had not substantially complied with its applicable disciplinary rules? 3. Did the Appellate Division err as a matter of law when it determined that the University’s decision to deny a DDS degree to Kickertz, who had admittedly falsified patient treatment records while enrolled in a clinical course at the University, shocked the court’s sense of fairness? 4. Did the Appellate Division err as a matter of law when it substituted its views for the judgment of professional educators at the University by invalidating the academic decision to expel Kickertz, although the court was {00016590.2} 6 required to defer to the University’s decision under the arbitrary and capricious standard of review applicable to this proceeding under Article 78? Statement of Facts Kickertz was a student of the New York University College of Dentistry (“NYUCD”). In her final year of study toward a DDS degree, Kickertz was enrolled in a required clinical course in General Dentistry. At the end of May 2009, Kickertz left New York City and traveled to Boston, Massachusetts, where she planned to begin a post-graduate residency program. (R. 99-100). Kickertz’s instructor had previously advised her, however, that she had failed to finish one of the requirements for successful completion of the General Dentistry Clinic. (R. 97). The requirement in question, known at the time as a “Practice Model Value” or “PMV” requirement, was a prerequisite to receiving a degree. (R. 99). As one of the documents on which Kickertz herself relied explains: [I]n order to graduate students are expected to perform a certain number of minimum discipline and competency requirements . . . . It is expected that by adding production goals to the educational mix, students will gain more experience and knowledge in delivering comprehensive care. As a result, one objective of this program is to graduate efficient and ethical practitioners ready to meet the challenges of ‘the real world.’ (R. 84). {00016590.2} 7 Upon learning that she needed to return to the clinic to perform additional work, Kickertz created certain records to make it appear that she had rendered dental care to four patients, including the extraction of sixteen teeth, in a time period of less than two hours. (R. 114-115). Faced with this obviously improbable scenario, her instructor investigated the facts and determined that the patients to whom Kickertz had supposedly rendered care had not in fact been present at NYUCD’s dental clinic on the relevant date. (R. 114). Ultimately, when confronted with this finding, Kickertz admitted that she had fabricated records to make it falsely appear that she had met the school’s requirements. (Id.). This incident led to a disciplinary proceeding at NYUCD in which Kickertz received a hearing before a Peer Review Board (“PRB”) (R. 29) which concluded that NYUCD should expel her with no possibility of reinstatement. (R. 30). Pursuant to the school’s disciplinary rules, a College Review Board (“CRB”) consisting of three faculty members upheld the PRB’s decision. (R. 159). The CRB decision was subject to review by NYUCD’s Dean Charles Bertolami, who ultimately decided on both academic and disciplinary grounds that Kickertz should not receive the DDS degree. (R. 30). Kickertz then filed her Article 78 petition on or about March 15, 2010. (R. 22-39). In her petition and supporting affidavits, Kickertz alleged, inter alia, that NYUCD had improperly dismissed her from its DDS program. Kickertz {00016590.2} 8 challenged her dismissal even though, as the Supreme Court noted in its February 2011 Order, it was “undisputed that . . . Kickertz fabricated patient records” (R. 7) so as to make it falsely appear that she had met the requirements of a clinical course. On or about April 2, 2010, the University moved to dismiss the petition under CPLR §§ 3211(a)(1) and 3211(a)(7).3 The University sought dismissal on the grounds that documents on which Kickertz relied – including exhibits to her moving affidavits – established misconduct sufficient to warrant dismissal for submission of false patient treatment records, and that the petition otherwise failed to state a cause of action. (R. 268-317).4 The University submitted an affidavit in support of its motion from NYUCD Assistant Dean Anthony Palatta to place NYUCD’s applicable disciplinary rules before the court (R. 302-17), because Kickertz had improperly relied on both the correct version of the rules and an earlier, outdated version to support her arguments. (See, e.g., R. 11, 181, 260-67, 412). 3 Kickertz filed a plenary action against the University and several individuals simultaneously with her Article 78 petition, and the University moved to dismiss that complaint as well. Justice Schlesinger granted the University’s motion to dismiss the plenary action in the same decision that resolved the motion to dismiss the Article 78 petition (R. 5, 17-20), and Kickertz simultaneously appealed both parts of the decision to the Appellate Division. In an Order issued on September 10, 2013, the Appellate Division affirmed the dismissal of ten of sixteen causes of action from the plenary complaint, while allowing Kickertz leave to replead six others. See Kickertz v. New York Univ., 971 N.Y.S.2d 271 (1st Dept. 2013). 4 The University’s motion is incorrectly dated April 2, 2009 (R. 269), but this is an obvious typographical error. {00016590.2} 9 Kickertz acknowledged in her Article 78 petition that she had received a disciplinary hearing before the PRB on October 7, 2009 (R. 29), but she did not include the minutes of that hearing among the voluminous submissions she filed with the Court in support of her petition (R. 23-267; R. 318-450).5 Thus, because the University filed a pre-answer motion to dismiss, the minutes of the PRB hearing were not part of the original record before the Supreme Court. Consequently, as the Appellate Division acknowledged, In re Kickertz, 99 A.D.3d at 507, 952 N.Y.S.2d at 152, those minutes were not available to the Appellate Division. Notwithstanding that the Appellate Division did not have access to these critically important records of the disciplinary PRB proceeding, the Appellate Division nevertheless concluded – based solely on Kickertz’s one-sided presentation of the facts – that NYUCD failed to follow its applicable disciplinary rules in that proceeding. As we show below, the alleged procedural violations did not exist, and the Appellate Division’s contrary determination was erroneous as a matter of law. 5 The University later submitted the minutes of the October 7, 2009 PRB hearing to the Supreme Court in support of its February 12, 2013 motion for entry of a final judgment. The University has subpoenaed all the materials submitted with that motion to this Court pursuant to Rule 500.11(c)(1). {00016590.2} 10 The February 14, 2011 Supreme Court Decision Granting The University’s Motion To Dismiss Kickertz’s Article 78 petition In a February 14, 2011 Order, Justice Alice Schlesinger of the New York County Supreme Court granted the University’s motion to dismiss the Article 78 petition. For purposes of her analysis, Justice Schlesinger reviewed the facts “in the light most favorable to Ms. Kickertz, as is required on a motion to dismiss.” (R. 5). Justice Schlesinger noted that the University’s decision to dismiss Kickertz resulted from “the application of its disciplinary rules, as well as academic standards.” (R. 8). The court acknowledged that NYUCD’s Code of Ethics prohibited “[a]ny action that interferes with the . . . clinical activities at the College; . . . engaging in unprofessional behaviors; . . . cheating . . . misrepresentation of one’s own academic or clinical work . . . and falsifying, tampering with or destroying any academic or clinical record, document or file. . .” (Id.). Moreover, Justice Schlesinger concluded that “[a]s an academic matter, NYU properly considered the ethical issues, consistent with both its inclusion in the curriculum of a course in Ethics and Ms. Kickertz’s failure to appropriately complete the PMV requirements included in the curriculum.” (R. 9). The Supreme Court recognized that judicial review of a university’s disciplinary decision is limited and that a private university has no obligation to make the “‘full panoply of due process rights’” available to a student in a {00016590.2} 11 disciplinary proceeding. (Id.). Further, the Supreme Court followed this Court’s precedents in recognizing that “judicial review of academic decisions by private institutions is perhaps even more restricted than review of disciplinary decisions . . . .” (R. 10). Ultimately, Justice Schlesinger concluded that Kickertz had failed to allege a meritorious claim under Article 78, because “NYU substantially complied with the guidelines and procedures set forth in the Code of Ethics in effect at the time of the proceedings.” (R. 11). The court noted that Kickertz’s “reliance on an outdated set of rules” – the University’s 2005 Code – was “misplaced.” (Id.). Moreover, the court also noted that, since the University’s disciplinary rules did not entitle Kickertz to “confront the witnesses interviewed by the PRB” during a pre-hearing investigative stage of the disciplinary proceeding, her claim of denial of due process was “unavailing.” (Id). Acknowledging that the court was required to defer to the University’s decision not to confer a DDS degree upon Kickertz as an academic matter unless that decision was “in bad faith or . . . arbitrary and capricious or irrational,” the Supreme Court found that Kickertz’s “initial response to the notice of the [academic] deficiency in PMV credits was to falsify patient records,” and that the University’s decision to expel her could not, therefore, be annulled. (R. 13). Finally, Justice Schlesinger rejected Kickertz’s argument that the penalty of expulsion from NYUCD without possibility of reinstatement was “‘so {00016590.2} 12 disproportionate as to shock one’s sense of fairness.’” (R. 13, citation omitted). Noting that Kickertz had committed a “serious ethical breach,” and that “the private educational institution is accorded great deference” (R. 14), Justice Schlesinger analyzed numerous precedents where the Appellate Division “similarly deferred to the penalty imposed by the educational institution . . .” (id.), concluding that NYUCD’s decision to expel Kickertz with no possibility of reinstatement should stand. The Decision of the Appellate Division The Appellate Division recognized in its October 11, 2012 decision that the University’s decision to impose discipline on Kickertz should be upheld if the University “‘substantially adhered to its own published rules and guidelines.’” In re Kickertz, 99 A.D.3d at 507, 952 N.Y.S.2d at 153. The court noted that the minutes of the PRB hearing were not in the record. See id., 99 A.D.3d at 507, 952 N.Y.S.2d at 152 (noting that the PRB determination had not “been produced”). Nevertheless, the Appellate Division determined – solely on the basis of Kickertz’s self-serving allegations – that the University had failed to follow its applicable disciplinary rules in imposing discipline on her. Id., 99 A.D.3d at 508-11, 952 N.Y.S.2d at 153-54. The Appellate Division accepted Kickertz’s argument that the University was required to comply with a 2005 version of the Code of Ethics, despite the {00016590.2} 13 University’s argument that a later 2009 version of the Code governed. Id., 99 A.D.3d at 508, 952 N.Y.S.2d at 153. The court faulted the University for failing to allow Kickertz to attend the hearing with an outside advisor or legal counsel pursuant to the 2005 Code, although the 2009 Code eliminates any such entitlement. Id. Furthermore, the Appellate Division suggested that NYUCD Dean Anthony Palatta acted improperly by enforcing the 2009 Code rather than allowing Kickertz to elect to follow the superseded 2005 procedures. Id., 99 A.D.3d at 510, 952 N.Y.S.2d at 154. In addition, the Court suggested that the University was somehow not capable of providing a fair hearing to Kickertz, because the University had initially overlooked its obligation to afford her a hearing. Id., 99 A.D.3d at 508-09, 952 N.Y.S.2d at 153-54. The initial failure to grant a hearing was, however, an error that Kickertz conceded the University corrected. (R. 29). Turning to the hearing itself, although the minutes were not in the record, the Appellate Division faulted the University because the PRB did not hear live testimony from certain witnesses who, Kickertz has argued, would have supported her case. Id., 99 A.D.3d at 509-10, 952 N.Y.S.2d at 154-55. There was no evidence, however, that Kickertz called these individuals to testify before the PRB. The Appellate Division also accepted Kickertz’s argument that the PRB improperly failed to review certain documents and evidence which the Appellate {00016590.2} 14 Division apparently considered necessary to corroborate statements made to investigators for the PRB. Id., 99A.D.3d at 509, 952 N.Y.S.2d at 154. Nothing in the PRB’s procedures, however, required the PRB to obtain any such evidence or corroboration. The Appellate Division further faulted the PRB for considering “hearsay,” id., but the University’s 2009 Code of Ethics clearly states that PRB hearings “shall not be restricted by rules of evidence used in a court of law.” (R. 265). Finally, although the University had no opportunity to answer the petition, the Appellate Division accepted Kickertz’s factual assertions concerning the alleged deficiencies in the PRB hearing, concluding that the facts were “fully set forth in the record.” In re Kickertz, 99 A.D.3d at 510, 952 N.Y.S.2d at 155. The Appellate Division further concluded that Kickertz’s one-sided presentation “establish[ed] that NYU did not substantially comply with its own published guidelines and policies . . . .” Id. Moreover, the Appellate Division determined that it could properly reverse the Supreme Court’s decision granting the University’s pre-answer motion to dismiss, and instead grant the relief sought in the Article 78 petition, despite the existence of what the Supreme Court recognized were “[s]harp factual disputes” (R. 5). In its opinion, the Appellate Division recognized that the parties disagreed about, inter alia, which version of the Code of Ethics and Professional Conduct, a {00016590.2} 15 2005 version or a 2009 version, applied to this case. In re Kickertz, 99 A.D.3d at 508, 952 N.Y.S.2d at 153. Similarly, the Appellate Division noted a dispute concerning whether the PMV requirement was merely intended to generate revenue, as Kickertz alleged, or was instead a valid academic requirement, intended to help students gain experience and knowledge. Id., 99 A.D.3d at 503, 952 N.Y.S.2d at 149. The parties also disagreed about when Kickertz learned that she had failed to meet the PMV requirement, whether immediately before a graduation ceremony, as Kickertz alleged, or weeks earlier, as Kickertz’s instructor stated (R. 99-100) – a question that went to the heart of evaluating the seriousness of Kickertz’s ethical breach. In re Kickertz, 99 A.D.3d at 503, 952 N.Y.S.2d at 150. Further, there was a dispute as to whether NYUCD had given Kickertz the means to satisfy the PMV requirement legitimately on June 1, 2009 or whether, as she asserted, she had no alternative but to forge patient records. Id., 99 A.D.3d at 505-06, 952 N.Y.S.2d at 151. Another disputed issue went to which (and how many) documents Kickertz had falsified in an effort to make it appear that she had met the PMV requirement, together with her reasons for doing so. Id., 99 A.D.3d at 506, 952 N.Y.S.2d at 151-52. The Appellate Division granted the petition despite its awareness of these factual disputes. {00016590.2} 16 Subsequent Proceedings As noted above, after the Appellate Division issued its October 2012 Decision, the University appealed, but this Court granted Kickertz’s motion to dismiss the appeal on grounds of non-finality. See In re Kickertz, 20 N.Y.3d 1004, 983 N.E.2d 765, 959 N.Y.S.2d 687 (2013). Accordingly, the University moved before the New York County Supreme Court on February 12, 2013 for entry of a final judgment. In submissions in support of the request for final judgment, the University included a copy of the minutes of the October 2009 PRB hearing, among other things.6 The University also correctly anticipated that Kickertz would ask the Supreme Court to include in its judgment a provision directing the University to issue a DDS degree to her. Accordingly, to demonstrate the impropriety of any such request, the University included in its submissions copies of the patient treatment records that Kickertz had falsified in June 2009, together with materials showing that Kickertz failed to successfully complete the clinical course in which she was enrolled when she falsified those records.7 Indeed, Kickertz is not entitled to a DDS degree, having failed to fulfill NYUCD’s degree 6 See the Affidavit of Dr. Anthony Palatta, sworn to on January 24, 2013 (“Palatta Aff.”), Ex. 24. 7 See the Affidavit of Dr. David Hershkowitz, sworn to on February 11, 2013, Exs. 4-7, and the March 6, 2013 Affidavit of Dr. Mark Wolff and its exhibits. {00016590.2} 17 requirements.8 Finally, the University proffered materials showing that Kickertz is not entitled to receive a DDS degree from the University for the additional reason that she used her NYUCD credits to obtain advanced standing at the dental school of Indiana University, which conferred a DDS degree on her in July 2012.9 Had the University been permitted to answer the petition before a court ruled on the merits, it would have presented all of these materials (among others) to the court. POINT I THE APPELLATE DIVISION IMPROPERLY GRANTED THE PETITION WITHOUT GIVING THE UNIVERSITY AN OPPORTUNITY TO ANSWER THE PETITION AND PRESENT ITS VIEW OF THE FACTS The University filed a pre-answer motion to dismiss Kickertz’s Article 78 petition, and the Supreme Court granted that motion. But the Appellate Division reversed and granted the petition without notice to the University and without giving it a chance to answer the petition. This was a clear legal error. Nothing in the CPLR requires the respondent in an Article 78 proceeding to submit an answer or affidavits if it considers the petition defective as a matter of law. In this instance, the University made the reasonable judgment that, since 8 After the Supreme Court declined to include provisions in its Judgment requiring the University to issue a DDS degree to Kickertz and to award attorneys’ fees to her, Kickertz moved before the Appellate Division to “resettle” the October 11, 2012 Decision so as to provide both forms of relief. The University opposed that motion, which is currently sub judice before the Appellate Division. 9 See the Affidavit of Dr. Charles S. Bertolami sworn to on February 11, 2013 and its exhibits. {00016590.2} 18 Kickertz admitted in her various submissions below that she had created certain fictitious records in order to make it falsely appear that she had fulfilled the requirements of a clinical course at NYUCD (see, e.g., R. 166, 168, 172, 174, 175), the decision to dismiss her from the University was a patently reasonable one that could not be dismissed as arbitrary and capricious. See In re Kickertz, 99 A.D.3d at 506, 952 N.Y.S.2d at 152 (noting that Kickertz admitted to creating “encounter forms” relating to her non-existent clinical work). The Appellate Division ultimately disagreed with this assessment, but the Appellate Division’s ruling on that point – based solely on the allegations of Kickertz’s petition – was not a proper basis for that court to, in effect, grant summary judgment in Kickertz’s favor. As the dissenters at the Appellate Division noted, id., 99 A.D.3d at 513-14, 952 N.Y.S.2d at 157, CPLR 7804(f) on its face provides that, where, as here, the respondent in an Article 78 proceeding raises an objection in point of law by moving to dismiss the petition and the motion is denied, “the court shall permit the respondent to answer upon such terms as may be just . . . .” CPLR 7804(f) (emphasis added). This Court’s precedents therefore clearly hold that the “mandate of CPLR 7804 (subd [f]) . . . proscribes dismissal on the merits following such a motion, unless the facts are so fully presented in the papers of the respective parties that it is clear that no [factual] dispute . . . exists and [there can {00016590.2} 19 be] no prejudice . . . from the failure to require an answer . . . .” Nassau BOCES, 63 N.Y.2d at 102, 469 N.E.2d at 511, 480 N.Y.S.2d at 190 (emphasis added); accord, Bethelite, 8 N.Y.3d at 1002, 870 N.E.2d at 679, 839 N.Y.S.2d at 440. This Court’s precedents also teach that the petition in an Article 78 proceeding “should not be granted before the respondent has filed an answer.” Nassau BOCES, 63 N.Y.2d at 103, 469 N.E.2d at 512, 480 N.Y.S.2d at 191 (citations omitted, emphasis added). The Appellate Division similarly violated that prohibition here. The requirement to allow the respondent notice and an opportunity to be heard before determining an Article 78 proceeding on the merits parallels the fundamental rule that a court must give notice before converting a motion to dismiss to one for summary judgment, as this court further noted in Nassau BOCES, 63 N.Y.2d at 103, 469 N.E.2d at 512, 480 N.Y.S.2d at 191; see CPLR 3211(c). The Appellate Division at one point purported to find that the facts were “fully set forth in the record,” but elsewhere in its Opinion the court noted that several factual issues were in dispute. In re Kickertz, 99 A.D.3d at 502-07, 259 N.Y.S.2d at 149-52, compare, id., 99 A.D.3d at 510, 259 N.Y.S.2d at 154. The disputed factual issues should have compelled the conclusion that the court could not properly grant the petition when the University had not yet filed an answer. {00016590.2} 20 The disputes concerned, inter alia, the purpose of the PMV requirement, when Kickertz learned of her deficiency in meeting it, whether Kickertz had an opportunity to meet it honestly, and the nature and extent of Kickertz’s falsification of NYUCD records. All these issues were critical to determining the significance of Kickertz’s ethical lapse, an issue which, in turn, was key to understanding both the appropriate disciplinary response to her behavior and whether it should properly have academic consequences. Compounding the clear legal error resulting from the failure to allow the University to answer in the face of numerous disputed factual issues, the Court faulted the University for the absence of “proof” and “evidence” that the University had not provided because of its decision to move against the petition rather than answering it. Id., 99 A.D.3d at 509, 259 N.Y.S.2d at 154. Assuming for argument’s sake that the University had any obligation to provide the “proof” and “evidence” that supposedly were lacking – a point we do not concede (see Point II, infra)10 – it was a clear legal error for the Appellate Division to rule against the University without allowing it to respond to the petition on the merits. In sole reliance on Kickertz’s self-serving and one-sided factual presentation, the Appellate Division concluded that the penalty of expulsion was disproportionate and shocking. Id., 99 A.D.3d at 511, 952 N.Y.S.2d at 156. Thus, 10 As we show in Point II, the Appellate Division’s determination that NYUCD failed to substantially comply with the applicable disciplinary rules was erroneous as a matter of law. {00016590.2} 21 without allowing the University to express its views on Kickertz’s academic record, it accepted her argument that her academic work had been “exemplary.” Id., 99 A.D.3d at 512, 952 N.Y.S.2d at 156. Ignoring the statement of a University faculty member that Kickertz had failed to attend a mandatory clinic for weeks before her graduation date (R. 99-100), the Appellate Division adopted Kickertz’s argument that she committed only “a single lapse in judgment in the face of extraordinary pressure.” Id., 99 A.D.3d at 512, 952 N.Y.S.2d at 156. The prejudice to the University from the foreclosure of an opportunity to answer before the Appellate Division ruled in Kickertz’s favor on the merits could hardly be more clear. At a minimum, this Court should reverse the legally erroneous decision of the Appellate Division, to the extent that it granted the petition without affording the University an opportunity to file an answer and contest Kickertz’s factual allegations. In addition, for the reasons we discuss below in Points II, III, and IV, this Court should reverse the decision of the Appellate Division and reinstate the Supreme Court’s Order dismissing the petition. {00016590.2} 22 POINT II THE APPELLATE DIVISION ERRED AS A MATTER OF LAW BY INVALIDATING THE UNIVERSITY’S DETERMINATION AFTER THE UNIVERSITY COMPLIED WITH ITS DISCIPLINARY RULES This Court has established that a university’s obligation in imposing discipline on a student is to comply with its applicable disciplinary rules. Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 404 N.E.2d 1302, 427 N.Y.S.2d 760 (1980). The Appellate Division erred as a matter of law by construing this standard to require compliance with a different set of rules that the Appellate Division devised after the fact. In the first instance, the Appellate Division improperly determined that the PRB hearing failed to comply with the 2009 Code of Ethics, although the minutes of the PRB hearing were not before the Appellate Division. See In re Kickertz, 99 A.D.3d at 507, 952 N.Y.S.2d at 152. The Appellate Division improperly relied solely on Kickertz’s one-sided characterizations of events at the hearing, together with her self-serving interpretations of the 2009 version of the Code. Secondly, the Appellate Division improperly substituted its views concerning how the PRB should have conducted itself for the actual disciplinary rules that applied to Kickertz’s case. The Appellate Division suggested that the University failed to comply with a 2009 Code of Ethics and Professionalism by, inter alia, failing to allow Kickertz to cross-examine witnesses who had been {00016590.2} 23 interviewed by an Investigative Panel of the PRB before the PRB hearing.11 Id., 99 A.D.3d at 509-10, 952 N.Y.S.2d at 154. Further, the Appellate Division incorrectly determined that the University violated the 2009 Code of Ethics because it declined to follow the 2005 Code of Ethics in order to allow Kickertz to attend the hearing with counsel, although the 2009 Code of Ethics had eliminated any such entitlement. See id., 99 A.D.3d at 508, 952 N.Y.S.2d at 153. Kickertz had no right to interview or cross-examine the persons who spoke with the PRB’s Investigating Panel. The Code of Ethics required the Chair of the PRB to appoint such a panel, consisting of two students (R. 264). The function of the Investigating Panel, however, was solely “to conduct an investigation to ascertain facts and recommend a disposition of [a disciplinary] complaint.” Id. Following the report of the Investigating Panel, a PRB hearing was mandatory because dismissal was a possible sanction. (Id.). The 2009 Code of Ethics, rather than the views of the Appellate Division, established the acceptable parameters for Kickertz’s PRB hearing. Such a hearing was to be “conducted in a manner to achieve substantial justice [but] not [to] be restricted by the rules of evidence used in a court of law.” (R. 265, emphasis added). While each of the parties had the right under the 2009 Code of Ethics to 11 Kickertz also argued (incorrectly) that an earlier, 2005 version of that Code remained in effect. The 2005 version of the Code of Ethics, however, was superseded by a revised, 2009 edition. (See R. 302-17, R. 322, 402-09). {00016590.2} 24 call witnesses and to question any opposing witnesses through the Chair of the PRB, (id.), the PRB was not required to hear any particular witnesses, and had discretion to limit the number of witnesses and to accept affidavits in lieu of live testimony. (Id.). Moreover, contrary to the Appellate Division’s conclusions, nothing in the Code of Ethics required the members of the Investigating Panel to appear in person to present their charges or supporting evidence to the PRB through live witnesses, rather than through a copy of the investigative report. Instead, the PRB had the discretion to determine “[a]ll matters of procedure not specified in [the] Code.” (Id.). Ignoring the PRB’s broad discretion to determine how to conduct its hearings, the Appellate Division faulted it for failing to comply with a non-existent requirement to hear testimony from specified witnesses (Hershkowitz, Meeker and Tartaglia). In re Kickertz, 99 A.D.3d at 509, 952 N.Y.S.2d at 154. In addition, the Appellate Division erred in imposing a burden on the University to call witnesses when it had no obligation to do so; Kickertz could have called any of them to testify (R. 265), but she failed to do so. Similarly, the Appellate Division faulted the PRB for failing to examine documents or obtain proof that the Appellate Division considered important after the fact. Id. Ignoring the express statement in the Code of Ethics that PRB hearings “shall not be restricted by the rules of evidence used in a court of law” (R. 265), the Appellate Division faulted the PRB {00016590.2} 25 for considering “hearsay in the Investigating Panel Report [that] was not subject to cross-examination . . . .” Id., 99 A.D.3d at 509, 952 N.Y.S.2d at 154. In short, the Appellate Division substituted its views as to what procedural safeguards would be optimal for the actual requirements of the 2009 Code of Ethics. The Appellate Division’s approach was erroneous as a matter of law. Moreover, the 2009 Code of Ethics did not, contrary to the Appellate Division’s ruling, require the PRB to permit a student’s advocate to question witnesses. Compare, id., 99 A.D.3d at 510, 952 N.Y.S.2d at 154. To the contrary, the Code of Ethics specified that, unless the Chair of the PRB determined otherwise, parties do not question witnesses directly; instead PRB Members might “address questions to any party . . . or to any witnesses called by the Parties or by the [PRB].” (R. 265). Indeed, where a party wished to question a witness whom the opposing party had called to testify at the hearing, the Code provided that “[q]uestions shall be posed through the Chair, unless the Chair determines otherwise.” (Id.). In any event, the only witnesses who appeared at the PRB hearing were Kickertz herself and her mother, both of whom testified on Kickertz’s behalf. Palatta Aff. Ex. 24. Kickertz obviously suffered no prejudice from the Chair’s refusal to allow Kickertz’s advisor to subject her and her mother to cross- examination. {00016590.2} 26 The Appellate Division’s rejection of the actual requirements of the Code of Ethics was erroneous as a matter of law. This Court held long ago that “when 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, 49 N.Y.2d at 660, 404 N.E.2d at 1306, 427 N.Y.S.2d at 764 (emphasis added). The school’s hearing requirements, moreover, need not be formal to pass muster. See, e.g., Matter of Harris v. Trustees of Columbia Univ.,98 A.D.2d 58, 71, 470 N.Y.S.2d 368, 376, aff’d on dissenting opinion, 62 N.Y.2d 956, 959-60, 468 N.E.2d 54, 54, 479 N.Y.S.2d 216, 216 (1984). New York courts have never required private colleges or universities to provide the full panoply of due process rights in their disciplinary proceedings. See, e.g., Ebert v. Yeshiva Univ., 28 A.D.3d 315, 315, 813 N.Y.S.2d 408, 409 (1st Dept. 2006); Fernandez v. Columbia Univ., 16 A.D.3d 227, 228, 790 N.Y.S.2d 603, 603 (1st Dept. 2005). For all of the foregoing reasons, the Appellate Division’s determination that the University failed to comply with the 2009 Code of Ethics was legally erroneous. As a result, the decision to reverse the Order of Supreme Court dismissing the petition was legally incorrect. The October 2012 Decision should be reversed, and the February 2011 Order dismissing the petition should be reinstated. {00016590.2} 27 POINT III THE APPELLATE DIVISION ERRED AS A MATTER OF LAW WHEN IT SUBSTITUTED ITS JUDGMENT FOR THE UNIVERSITY’S ACADEMIC DETERMINATION THAT KICKERTZ SHOULD NOT RECEIVE A DEGREE, WITHOUT FINDING THAT THE UNIVERSITY’S DECISION WAS ARBITRARY OR CAPRICIOUS Based on Kickertz’s own submissions in support of her petition, it is evident – as the Supreme Court concluded – that her initial response to learning of her academic deficiency was to falsify records. For example, in a letter to the Dean submitted on appeal from the PRB disciplinary decision expelling her from NYUCD, Kickertz admitted to creating false “encounter forms” and using cash and a credit card to pay for non-existent patient treatment. (R. 166). She further admitted to initially trying to make it appear that she had “performed the procedures during [her] education . . . .” (R. 168). She then tried to evade responsibility for her acts, claiming that she had “misinterpreted” faculty instructions. (R. 172). It was indisputably rational for the Dean of NYUCD to conclude that such a student failed to qualify to receive the DDS degree from NYUCD, both as a disciplinary matter and on academic grounds (see R. 30 at ¶ 18). Moreover, the Appellate Division recognized that Kickertz had admitted to falsely suggesting that she had performed certain procedures to meet course requirements. In re Kickertz, 99 A.D.3d at 506, 952 N.Y.S.2d at 152 (noting that {00016590.2} 28 “petitioner avers that she admitted creating . . . encounter forms”). The court further noted the findings of the PRB Investigative Panel that Kickertz had “admitted ‘forging treatment records for 4 patients . . . and forging a chart entry for one patient.’” Id. In deciding to annul the decision of the Dean of NYUCD to expel Kickertz without possibility of reinstatement, however, the Appellate Division found it unnecessary to “review whether [the University’s decision] was rationally based upon the evidence.” Id., 99 A.D.3d at 511, 952 N.Y.S.2d at 155. The court reached this result by concluding, based on Kickertz’s one-sided submissions, that the University had not complied with the applicable Code of Conduct. For all the reasons set out above, this ruling was legally erroneous. In addition, the Appellate Division supported its conclusion by reasoning that “it would be improper for NYU to produce the actual patient charts for the first time in the article 78 proceeding (see Matter of Kelly v. Safir, 96 N.Y.2d 32, 39 [2001]).” Id. This conclusion was wrong as a matter of law. Unlike Matter of Kelly, this case does not present the question whether there is substantial evidence in an administrative record to support a decision of an agency after a legally- mandated hearing. The decision at issue here was instead a decision of the Dean of {00016590.2} 29 the New York University College of Dentistry, with both academic and disciplinary components (see R. 265-66).12 The disciplinary aspects of this decision must be upheld if the University substantially followed its applicable disciplinary rules which, as noted above, was the case. See Point II, supra. The academic aspect of the decision is a matter committed to the discretion of the professional educators at NYUCD, and subject to review only under the highly deferential “arbitrary and capricious” standard. The law is very well settled that: When a university, in expelling a student, acts within its jurisdiction, not arbitrarily but in the exercise of an honest discretion based on facts within its knowledge that justify the exercise of discretion, a court may not review the exercise of its discretion . . . . Carr, 17 A.D.2d at 634, 231 N.Y.S.2d at 414 (citations omitted), aff’d w/o op., 12 N.Y.2d 804, 197 N.E.2d 18, 235 N.Y.S.2d 834 (1962); see Olsson v. Board of Higher Ed., 49 N.Y.2d 408, 413, 402 N.E.2d 1150, 1153, 426 N.Y.S.2d 248, 251 (1980) (noting that “decisions surrounding the issuance of [academic] credentials [should] be left to the sound judgment . . . of professional educators”). This academic discretion cannot be disturbed where it rests on a rational interpretation of the relevant evidence, but the Appellate Division found it 12 By contrast to the situation here, where an Article 78 proceeding arises from the decision of an administrative agency after a hearing, the Appellate Division must decide whether the determination is, “on the entire record, supported by substantial evidence.” CPLR § 7803.4; see CPLR § 7804(g). {00016590.2} 30 unnecessary to analyze whether the decision to expel Kickertz had a rational basis. This conclusion was wrong as a matter of law.13 The Appellate Division explicitly applied the wrong legal standard to its review of the Dean’s academic decision to uphold Kickertz’s dismissal from NYUCD, by finding it unnecessary to determine whether that decision had a rational basis. For this reason too the October 2012 Decision was erroneous as a matter of law and must be reversed, and the Supreme Court’s February 2011 Order should be reinstated. POINT IV THE APPELLATE DIVISION ERRONEOUSLY DETERMINED THAT THE DECISION TO DENY A DDS DEGREE TO A STUDENT WHO ADMITTEDLY FALSIFIED PATIENT TREATMENT RECORDS DURING A CLINICAL COURSE SHOCKED THE SENSE OF FAIRNESS Reasoning that Kickertz’s academic performance at NYU had been “exemplary,” that her falsification of patient records was “at worst a single lapse in judgment [under] extraordinary pressure,” that her expulsion left her with “no degree of any kind” after years of toil and substantial expenditure of funds, that the University had frustrated Kickertz’s ability to complete the PMV requirements, and that NYUCD had punished Kickertz more harshly than other students, the 13 Moreover, given an opportunity to answer, the University would have provided compelling evidence that the Dean made his decision after reviewing the facts and appropriately concluding that Kickertz had engaged in serious misconduct. See the Bertolami Affidavit. {00016590.2} 31 Appellate Division majority found the penalty NYUCD imposed on Kickertz shocking to the court’s sense of fairness. In re Kickertz, 99 A.D.3d at 511-13, 952 N.Y.S.2d at 156-57. But all of these factual determinations were based solely on Kickertz’s version of the facts. Several of them are inconsistent with statements of NYUCD faculty in the record. (R. 99-100, 114-15). Given the opportunity to answer the petition, the University would have disputed each of these matters. The Appellate Division’s decision in effect granted summary judgment for Kickertz based on her self-serving factual assertions, without affording the University an opportunity to respond on the merits. This determination was a clear legal error. In Pell v. Board of Ed. of Union Free School Dist. No. 1, 34 N.Y.2d 222, 234, 313 N.E.2d 321, 327, 356 N.Y.S.2d 833, 842 (1974), this Court articulated the criteria courts should use to evaluate whether a penalty is shocking to the sense of fairness. A penalty does not pass muster under this standard: if the sanction imposed is so grave in its impact on the individual . . . that it is disproportionate to the misconduct . . . or turpitude of the individual, or to the harm or risk of harm to the . . . institution, or to the public generally . . . . Id. The Appellate Division could not properly analyze these criteria on the one- sided record it had before it. There was an obvious dispute as to whether Kickertz had performed well academically or committed only a single lapse in judgment, when her course instructor noted a repeated pattern of absences from clinical {00016590.2} 32 sessions stretching over numerous weeks. (R. 99-100). Similarly, it was apparent from Kickertz’s own submissions that the question whether NYUCD had provided Kickertz with the means to complete the PMV requirement honestly on June 1, or whether her falsification of records was somehow necessary, was “sharply” disputed. (R. 114). The Court could not properly resolve these sharp disputes based solely on Kickertz’s version of facts, although that is exactly the course of action that the court elected.14 The determination that Kickertz’s penalty was shocking was also substantively improper, as a matter of law. Appellate Division decisions hold that expulsion of a student from a University for misconduct far less serious than that at issue here is not shocking to the sense of fairness. See, e.g., Idahosa v. Farmingdale State Coll., 97 A.D.3d 580, 581, 948 N.Y.S.2d 104, 106 (2d Dept. 2012), lv. denied, 19 N.Y.3d 813, 976 N.E.2d 252, 951 N.Y.S.2d 723 (2012) (expulsion from nursing school for plagiarism); Flores v. New York Univ., 79 A.D.3d 502, 503, 911 N.Y.S.2d 631, 631 (1st Dept. 2010) (expulsion of student from NYUCD for cheating on an examination); Dequito v. New School For General Studies, 68 A.D.3d 559, 559 890 N.Y.S.2d 56, 57 (1st Dept. 2009) (expulsion of student for plagiarism). Kickertz’s misconduct here – falsification of 14 Additionally, while Kickertz argued before the Appellate Division that she would have no degree of any kind after her expulsion from NYUCD, and the Appellate Division accepted that conclusion, behind the scenes she was in the process of completing work to obtain a DDS degree from another school, using her NYUCD credits. See In re Kickertz, 99 A.D.3d at 512, 952 N.Y.S.2d at 156; compare the February 11, 2013 Bertolami Affidavit. {00016590.2} 33 patient clinical records – was far more significant than the cheating and plagiarism that the courts found sufficient to justify expulsion of students in previous cases. For all the foregoing reasons, the Appellate Division’s decision that Kickertz’s dismissal from NYUCD was shocking to the sense of fairness was erroneous as a matter of law, and should be reversed. Conclusion For the foregoing reasons, this Court should reverse the Appellate Division’s October 11, 2012 Decision, set aside the Supreme Court’s resulting July 24, 2013 Judgment, and reinstate the February 14, 2011 Decision of the Supreme Court dismissing the petition. In the alternative, the Court should, at a minimum, reverse the Appellate Division’s October 11, 2012 Decision and remand to the Supreme Court to permit the University to answer the petition, and for the Supreme Court to conduct such further proceedings this Court considers necessary to resolve this matter on the merits. The University further respectfully requests the opportunity {00016590.2} 34 to file a reply letter on this appeal pursuant to CPLR 500.11(e). Respectfully submitted, New York University Office of General Counsel Bonnie Brier, Esq., General Counsel By:__/s________________________ Nancy Kilson, Esq. Associate General Counsel 70 Washington Square South New York, New York 10012 (212) 998-2258 Attorney for Respondent-Appellant, New York University cc: Jeffrey K. Brown, Esq. Leeds Brown Law, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 {00016590.2} 35