In the Matter of Katie Kickertz, Respondent,v.New York University, Appellant.BriefN.Y.February 10, 2015To BE ARGUED By: JEFFREY K. BROWN, ESQ. ’upreme (Court for the fptate of jJu Pork %tppcttate itjtion:Jirt Mepartment 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. BRIEF FOR APPELLANT KATIE KICKERTZ LEEDS MORELLI & BROWN, P.C. Attorneys 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) 5224024 1-800-531-2028 JEFFREY . S . $upre e QCo rt for toe $ta e of jfiew ~ ~p eUat ~ibision:jfirs t1Bepart f t lication of , t Pursuant to Article 78 ractice Laws and Rules, I E SITY, t- s ndent. I , . . s titi er- ppe lant l ountry Road, Suite 347 rle Place, ew York 1514 873-9550 Jbro n lmblaw.com [ epr ed on Recycled Paper] r ourt, ew York County, Index No. 10346112010 ICK BAILEY SERVICE (212) 608-7666 (718) 5 2-4363 (516) 222-2470 (914) 682-0848 Fax: (718) 522-4024 -800-531-2028 TABLE OF CONTENTS Pages PRELIMINARY STATEMENT . I STATEMENTOF FACTS .......................................................................................3 ARGUMENT I. THE TRIAL COURT ERRED IN DENYING THE ARTICLE 78 PETITION ON THE MERITS.....................................................................12 A. CPLR 7804[H] Requires A Hearing Prior to Dismissalof an Article78 Petition ..............................................................................12 B. The Court Erred in Resolving the Merits of the Article 78 Petitionwith Hearsay .........................................................................19 C. Respondent’s Decision to Expel Katie was Arbitrary and Irrational...........................................................................................22 1. Respondent Admittedly Failed to Comply with Its Own Disciplinary Procedures...........................................................22 2. Respondent’s Expulsion Decree Was Arbitrary and Irrational Because It Was Contradicted by the Record Evidence Before the Peer Review Board.................................30 3. The Drastic Punishment of Expulsion Was Arbitrary Because It Was Disproportionate to Katie’s Alleged Offense, and Is Shocking to the Conscience............................33 a. The Sanction Itself Was Shocking and Excessive in Light of the Charges .................................................. 35 b. Katie’s Punishment Was Disproportionate Compared to Punishments Imposed Upon Other Students..........................................................................38 RELIMINARY STATEMENT ......................................................................... .... 1 OF FACTS ............................................ .. 3 . THE TRIAL COURT ERRED IN DENYING THE ARTICLE 7 I ........................................... .. 12 earing Prior to Dismissalof an 78 Petition ......................................... .. 12 in esolving the Merits of the Article 78 with Hearsay .......................... .. 19 t' ision to Expel Katie was Arbitrary and l ................. ..... 22 . t d i tedly Failed to Comply with Its Own r e ures ................ .. 22 ent' xpulsion Decree Was Arbitrary and cause It Was Contradicted by the Record f re the Peer Review Board .. 30 tic Punishment of Expulsion Was Arbitrary It as isproportionate to Katie's Alleged Is Shocking to the Conscience ............................ 33 ction Itself as Shocking and Excessive t f the Charges ......... ........... tie' ish ent as Disproportionate r d to Punishments Imposed Upon Other t ................... .. 38 C. The Precedents Cited in the Court Below Are Distinguishable...............................................................39 d. Conclusion.....................................................................41 II. THE TRIAL COURT ERRED IN GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION ...................................................42 A. The Standard for Dismissal of Article 78 Is Whether a Cause of ActionIs Pled..................................................................................... 42 B. Petitioner Properly Pled an Article 78 Case.......................................43 CONCLUSION....................................................................................................... c. ts ited in the Court Below Are ....................... . 39 . . 41 . THE TRIAL COURT E RED IN GRANTING RESP ' E PETITION ........................ .. 42 . f is issal of Article 78 Is Whether a Cause of Is Pled ............................. . rl led an Article 78 Case ........... 43 .................. ................... ... 47 ii : ;0 TABLE OF AUTHORITIES Pages Cases: ABNAmro Bank N. V. v. MBIA Inc., 26 Misc.3d 1223(A) (Table), 2010 WL 549074, at *11 (N.Y. Sup. Ct., N.Y. Cty., Feb. 17, 2010) ............................................. 28,29 Acosta v. New York City Dept. of Educ., 62 A.D.3d 455, 878 N.Y.S.2d 337 (1st Dep’t 2009)...................................37 Andersen v. Weinroth, 13 Misc.3d 1204(A), 824 N.Y.S.2d 752 (Table), 2006 WL 2569959, at (N.Y. Sup. Ct., New York Cty., Sept. 5, 2006)............................................20 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) ......19,20,46 Board of Managers of Marke Gardens Condominium v. 2401242 Franklin Ave., LLC, 71 A.D.3d 935, 936, 898 N.Y.S.2d 564 (2d Dep’t 2010) ................... 45 Campaign for Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307, 318 (1995)...........................................................................45 Castle Village Owners Corp. v. Greater New York Mut. Ins. Co., 868 N.Y.S.2d 189, 192 (1st Dep’t 2008)................................................15,44 EBCI, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 20, 99 N.Y.S.2d 170, 175, 832 N.E.2d 28 (2005).................. 15 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) .............................................................13, 40 Eidlisz v. New York University, 15 N.Y.3d 730, 932 N.E.2d 876 (N.Y. 2010)......13 Fm es : Amro Bank N. V. v. MBIA Inc., e ( ) ( able), 2010 , at . . . ., e . 17, 010) ............. 28, 29 v. e York City Dept. of Educ., . . , ' ) . 37 v. Weinroth, i e ( ), . . . t., e ork Cty., Sept. 2 ............................. 20 l v. lbany Co lege of Pharmacy of Union University, , , 20 ' ..... 19,20,46 rd f anagers of Marke Gardens Condom nium v. 2401242 Franklin Ave., , 5, 6, 8 N.Y.S.2d ep't 2010) . aignf r iscal Equity, Inc. v. State of New York, . . , 318 . 45 Vi lage Owners Corp. v. Greater New York Mut. Ins. Co., 9, t ep't . 15, 4 , Inc. v. Goldman, Sachs & Co., . . 11,20, 9 N.Y.S.2d 170,175,832 N.E.2d 28 (2005) .... ert v. Yeshiva University, ise.3d 699, 701-2, 780 N.Y.S.2d 283,286 ( . . Su . t., . . Cty. 2 04) ........................ 13,40 idlisz v. New York University, 15 . .3d 730, 932 N.E.2d 876 (N.Y. 2010) .. 13 iii --- --------------------~------------------------ Fernandez v. Columbia Univ., 16 A.D.3d 227 (1st Dep’t 2005)............................40 Flores v. New York University, 79 A.D.3d 502 (1st Dept. 2010).....................39, 40 Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985).......................................46 Goudy v. Schaffer, 24 A.D.3d 764, 765, 808 N.Y.S.2d 712 (2d Dep’t 2005) ............................37 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).......................................35 Holme v. Global Minerals and Metals Corp., 880 N.Y.S.2d 873, 2009 WL 387034, *3 (N.Y. Sup. Ct, N.Y. Cty. 2009)....................................................................44 In re Susan M v. New York Law School, 76 N.Y.2d 241, 245, 556 N.E.2d 1104 (1990) .............................................13 JFK Family Ltd. Partnership v. Millbrae Natural GasDevelopment Fund 2005, L.P., 873 N.Y.S.2d 234 (Table), 2008 WL 4308289, *25 (N.Y. Sup. Ct., Westchester Cty. 2008) .......................................................46 Kiblitsky v.Lutheran Medical Or., 32 Misc.3d 575, 578 n.1 922 N.Y.S.2d 769 (Sup. Ct.2011) ...................................................43 Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972 (1994).......................45 Long IslandContractors ’ Ass ’n v. Town of Riverhead, 793 N.Y.S.2d 494, 594 (2d Dept. 2005).......................................................43 Lyles v. Ravitch, 101 A.D.2d 862, 863 (2d Dept. 1984).........................................43 Mary v. Clark, 118 Misc.2d98, 100 (N.Y. Sup. Ct., Cortland County, 1983). 25 Matter of De Paoli v. Board of Educ., 92 A.D.2d 894 (2d Dept. 1983).................43 lv ndez v. Columbia Univ., ' ) .............. 40 v. ew York University, ( t t. 2010) . 39,40 v. elden, 754 1059, 1067 (2d Cir. 1985) ........ .. 46 v. Scha fer, . . 764, ( ep't 2005) . 37 v oard of Ed., Cold Springs Harbor Central Sch ol Dist., , . .S.2d 76 (2d Dept. 19 7) ...................... ... 35 lobal inerals and Metals Corp., . . 873, 2009 WL 387034, *3 t . 2009) .. 44 v. New York Law School, 1, 5, 6 N.E.2d 104 (1 90) .. 13 rt ership v. i lbrae Natural GasDevelopment Fund 2 05, (Table), 2 08 WL 4308289, *25 t. stchester Cty. 2 08) .... .. 46 ical Ctr., , . 769 (Sup. Ct.20 1) ...... .. 43 rti z, . . .2d 972 (1994) .. 45 l d ontractors' 'n v. o n i (2d Dept. 2 05) ........... 43 avitch, 1 . ( e t. 1984) ..................... .. 43 M . i 98, 100 (N.Y. Sup. Ct., Cortland County, 1983).25 f li v oard of Educ., t. 1983) . 43 i Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34N.Y.2d222, 228, 313 N.E.2d 321 (1974) ......................................... 34,35 Matter of Zaidins v. Hashmall, 288 A.D.2d 316 (2d Dept. 2001)..........................43 McCrum v. Board of Ed. of New York City School Dist., 58 A.D.2d 864, 396 N.Y.S.2d 691 (2d Dep’t 1977) ....................................38 Meadows v. Planet Aid, Inc., No. 08 Civ. 02846, 2009 WL 3734316, *6 (E.D.N.Y. Nov. 4, 2009) ......... 44 Miciotta v. McMickens, 118 A.D.2d 489, 492, 499 N.Y.S.2d 960, 962 (1st Dep’t 1986)............14. 18 Natural Gas, 2008 WL 4308289, *25; Goldman, 754 F.2d at 1065-67.................46 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)........................13 New York State Soc. of Obstetricians and Gynecologists, Inc. v. Corcoran, 138 Misc.2d 591, 593 (Sup. Ct. N.Y. Co. 1987) ....................42 Quwrcia v. New York Univ., 41 A.D.3d 295 (1st Dep’t 2007)..........................40,41 Rindos v. Board of Educ. ofLongwood Cent. School Dist., 20 A.D.3d 572, 573 (2d Dep’t 2005)............................................................ 35 RCGLVMaspeth LLC v. Maspeth Properties L.L.C., 2010 N.Y. Slip op. 50503(U), 2010 WL 1133245, at *2 (N.Y. Sup. Ct., Kings County, Mar. 25, 2010)........................................ 45 Rovello v.Orofino Realty Co., Inc., 40 N.Y.2d 633 (1976) ....................................42 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.3d 716, 826 N.Y.S.2d 181, 859 N.E.2d 921, affirmed as modUled by 8 N.Y.3d 897, 834 N.Y.S.2d 73, 865 N.E.2d 1239 (2006) ............................................. 37-3 8 as tter of Pe ! v. Board of Educ. of Union Free School Dist. No.1 of Towns f rs ale & Mamaroneck, Westchester County, N.Y.2d 2, 28, 313 N.E.2d 321 (1974) ... 35 tt r of idins v. Hashmal!, . . 316 (2d Dept. 2 01) .. 43 v. Board of Ed. of New York City School Dist., , 396 . .S.2d 691 (2d Dep't 19 7) ............... 38 s v. Planet Aid, Inc., i . 02846,2009 WL 3734316, *6 ( . . . . Nov. 4, 2 09) .. i tta v. cMickens, , , . .S.2d 960,962 (1st Dep't 1986) ......... .. 14. 18 l 308289, ; l , - ........... 46 v. e York University, 1, . .S.2d 12 (lst Dep't 1981) order a fd, 2, . . .2d 438, 432 .E.2d 140 (1981) .. .. 13 ork State Soc. of Obstetricians and Gynec logi ts, Inc. . ( . t. . . Co. 1987) .................... 42 i v. New York Univ., ' ................ 40, 41 v oard of Educ. of Longwood Cent. School Dist., 't ) ...................... V Maspeth LC v. Maspeth Properties .L.C, Op. 1133245, at . . i gs County, Mar. 25, 2010) ... .... ! . r fino Realty Co., Inc., ) .................... . 42 v. tout, , 81 . .S.2d 676 ' l r t , , 85 .E.2d 921, ifi .E.2d 1239 (2 06) .................. 37-38 v Ryan v. Hofstra Univ., 67 Misc.2d 651, 662 (Sup. Ct., Nassau Country, 1971).... 39 Schnaars v. Copiague Union FreeSchool Dist., 275 A.D.2d 462, (2d Dept. 2000)................................................................. 35 Shaya B. Pacflc,LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 (2d Dept 2006)................................................................. 45 Starishevsky v. Hofstra University, 161 Misc.2d 137, 148, 612 N.Y.S.2d 794 (Sup. Ct. 1994) ..........................38 Tedeschi v. Wagner College, 49 N.Y.2d 652, 660, 404 N.E.2d 1302, 1306 (1980) .......................13, 23, 26 Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 305 (1979).................................... 44 Wamsley v. East Ramapo Cent. School Dist. Bd. of Educ., 281 A.D.2d 633, 635, 723 N.Y.S.2d53, 55 (2d Dep’t 2001) ......................14 Wapnick v. Board of Regents of University of State of N Y., 41 A.D.2d 795, 796, 341 N.Y.S.2d 366, 367 (3d Dep’t 1973) ....................20 Warner v. Elmira College, 59 A.D.3d 909,910, 873 N.Y.S.2d 381,382 (3d Dep’t 2009)...............27,30 Wolff V. McDonnell, 418 U.S. 539 (1974) ..............................................................25 VI "Me v. ofstr 67 i , . t., a sau Country, 1971) .... 39 . i reeSchool Dist., 75 . . t. 2000) ................ ... 3 ciji , . , it , Edelman & Dicker, LP, 8 . ept 2006) ................ ... v. fstra University, 61 isc. , . . 7 ( up. Ct. 1 94) ........................ . 38 . ollege, , .E.2d 1302, 1306 (1980) .. 13,23,26 . , , 474, 414 N.Y.S.2d 304,305 (1979) ................. t apo Cent. Sch ol Dist. Bd. of Educ., , , 53,55 (2d Dep't 2 01) ........... . 14 ard of Regents of University of S ate ofN Y., . .2d 795, , . . .2d , p't 1973) .................... 20 . l ir o lege, 910, 3 . .S.2d 381, 382 (3d Dep't 2009) ......... . 27,30 ljJv ll, ] . . 539 (1974) ........................... .. 25 vi PRELIMINARY STATEMENT This is a fairly straightforward appeal involving the trial court’s adjudication of a CPLR Article 78 Petition ("the Petition") on a motion to dismiss without the benefit of discovery or a hearing. The Petition was filed by Katie Kickertz ("Katie" or "Petitioner") after her summary expulsion by Respondent New York University ("Respondent"), following some perfunctory "hearings" before an improper agency of Respondent, with little of Katie’s evidence considered by Respondent’s agents. The first issue in this appeal is whether Article 7804[h] unambiguously requires a hearing to resolve disputed issues of fact in an Article 78 proceeding. Justice Schlesinger ruled that such a hearing was not required, with an effect on Katie that was "devastating" and "awful," as the trial court itself observed. R. 13, 20. Although the trial court attempted to justify its disposition of the case by alleging that Katie falsified patient medical records "to obtain academic credit for her own benefit," this finding was unsupported by the record evidence and was procedurally improper to make on a motion to dismiss. R. 14. The second issue in this appeal was whether an Article 78 petition may be resolved on the basis of hearsay statements. The Respondent argued below that the NYU College of Dentistry’s Code of Ethics and Professional Conduct provided that the rules of evidence might not apply in a disciplinary hearing, so that hearsay I mill ____ ----------..----------.--.- I straightforward appeal involving the trial court's adjudication rticle 78 Petition ("the Pe tion") on a motion to dismiss without the f r r a hearing. The Pe tion was filed by Katie Kickertz r " etitioner") after her summary expulsion by Respondent New York (" espondent"), following some perfunctory "hearings" before an f espondent, with little of Katie's evidence consid red by t' i i t is appeal is whether Article 7804[h] unambiguously ring to resolve disputed issues of fact in an Article 78 proceeding. lesinger ruled that such a hearing was not required, with an ffect on " evastating" and "awful," as the trial court itself observed. R. 13, Although the trial court attempted to justify its disposition of the case by t t atie falsified patient medical records "t obtain cademic credit for fit," this finding was unsu ported by the record evidence and was i r t a e on a motion to dismi s. R. 14. issue in this a peal was whether an Article 78 petition may be t asis of hearsay statements. The Respondent argued below that the l f entistry's Code of Ethics and Professional Conduct provi ed f evidence might not a ply in a disciplinary hearing, so that he rsay 1 evidence could be used. R. 620-621. However, the question is not whether Respondent was entitled to rely on hearsay in its "hearing", but whether the Supreme Court could rely on hearsay in resolving the factual merits of this Article 78 Petition. The CPLR is obviously quite clear that hearsay evidence may not dictate an Article 78 ruling. Katie is arguing in Petition that Respondent was arbitrary and capricious in a series of actions, including her expulsion. Accordingly, she was entitled to a hearing with admissible evidence as to whether the allegations made in her petition were true or false. The third major issue is whether a university has an unreviewable discretion to change its degree requirements, graduation fees, and disciplinary procedures in ways that contradict its own advertising, manuals and documentation, and public statements to faculty and students. Under the trial court’s reasoning, a university could create an unreviewable discretion on the part of the dean not to graduate students who had completed all their academic work, or could suddenly impose a requirement that third-year dental students earn an additional $1 million in billable dental fees before graduating. Moreover, a university could disregard its own internal procedures and due process rights guaranteed by its own Code of Ethics. Katie submits that this is not the law in New York, or in any other state, for that matter. 2 R evidence could be used. R. 620-621. How ver, the question is not w ether espondent was entitled to rely on hearsay in its "hearing", but w ther the re e Court could rely on hearsay in resolving the factual merits of this Article titi . The CPLR is obviously quite clear that hearsay evidence may not i t t an rticle 78 ruling. Katie is arguing in Petition that Respondent was itr r and capricious in a series of actions, including h r expulsion. i l , she was en itled to a hearing with admissible evidence as to whether ll ations made in her pe tion were true or false. t ir ajor i sue is whether a university has an unreviewable discretion its degree requirements, graduation fees, an disciplinary procedures in tradict its own advertising, manuals an documentation, and public students. Under the trial court's reaso ing, a university reviewable discretion on the part of the dea not to graduate co pleted a l their academic work, or could suddenly impose a t t ird-year dental students earn an additional $1 m llio in billable t l i . Moreover, a university coul disregard its own i t due proce s rights guaranteed by its own Code of Ethics. ti t i is not the law in New York, or in any other state, for that tt r. 2 STATEMENT OF FACTS Justice Schlesinger’s order dismissing the Article 78 Petition concedes that "[s]harp factual distinctions" existed in the parties’ versions of events. R. 5. While Justice Schlesinger states that the "facts" underlying the decision were "presented in the light most favorable" to Katie; however, as set forth below, this was not the case. Id. According to the Order, Respondent announced a "Group Practice Model" graduation requirement in Fall of 2007. R. 6. This was applicable retroactively to students who had enrolled and paid tuition between spring of 2005, when Katie committed to attend Respondent, and the spring of 2007, when other students were enrolling and paying tuition. R. 6. This "PMV" requirement was raised in Fall of 2008 from $27,000 over the entire time of a student’s enrollment, to $21,000 in the 2008-2009 academic year alone. R. 6. Thus, Katie "faced an insurmountable requirement of $37,000" in PMV monies she would be forced to earn for Respondent before being allowed to graduate. R. 6. The Order notes that there is a factual dispute regarding who was responsible for ensuring that Katie met the constantly-changing PMV requirements, Katie herself or her clinic advisor, Dr. Harry Meeker. R. 6-7. Justice Schlesinger concedes that there was a factual dispute regarding when Dr. Meeker informed Katie that there was an issue with her PMV, with Katie presenting a sworn affidavit that she was not informed until the eve of her 3 l singer's order dismi sing the Article 78 Pe tion concedes that isti ctions" existed in the parties' versions of events. R. Schlesinger states tha the "facts" underlying the decision were t in the light most favorable" to Katie; however, as set forth below, this t case. t t rder, Respondent a nounced a "Group r ation requirement in Fa l of 007. R.6. This was applicable ti ely to students who had enrolled and paid tuition between spring of 2005, c i ted to a tend Respondent, and the spring of2 07, when other iti . . This "PMV" requirement was i ll of 8 fro $27, 0 over the entire time ofa student's enrollment, i t - 9 acade ic year alone. R. 6. Thus, Katie "faced an re uire ent of 7,000" in PMV monie she would be forced to dent before being allowed to graduate. R 6. r tes that there is a factual dispute regarding who was l f r ensuring that Katie me the constantly-changing PMV , atie herself or her clinic advisor, Dr. Harry Meeker. R. 6-7. Schlesinger concedes tha there was a factual disput regarding when Dr. r infor ed Katie that there was an issue wit her PMV, with Katie ti a s orn a fidavit that she was not informed until th eve of her graduation, and Respondent presenting a hearsay summary of an interview with Dr. Meeker that he told a so-called Peer Review Board that he advised Katie of this issue in April 2009. R. 6-7. The heart of the dismissal Order is Justice Schlesinger’s finding that Katie "falsified patient records." R. 7, 13. Based on this finding, the trial court held that Petitioner’s actual completion of Respondent’s PMV requirement, at the invitation of Respondent, did not make Respondent’s refusal to grant her the DDS degree arbitrary and capricious. R.13. The Order states, in part: "It is undisputed that, in an attempt to obtain the necessary PMV credits, Ms. Kickertz fabricated patient records." R. 7. Justice Schlesinger’s finding that Katie "falsified patient records" was not only disputed, it was made without a hearing.’ Katie had offered evidence in opposition to this finding that she made no such admission: 5. I have never "admitted to falsifying patient treatment records" as NYU claims. All of their examples are statements taken out of context. What NYU calls "forgery" was merely filling out "encounter forms" to facilitate my payment of the money owed to NYU. These forms are internal NYU documents that support staff uses to monitor the PM’! payments of students. The encounter forms are not recorded in the patient’s chart. To imply that my actions amounted to entering false data into the patient’s records is a blatant mischaracterization of the facts. 6. NYU’s allegation that I falsified patient’s charts is even more ludicrous due to the fact that the University does not maintain charts for their patients. The only data that is collected is for the purposes of billing. To my As set forth below, such a hearing was guaranteed to Katie by CPLR 7804[h]. ti n, and Respondent presenting a hearsay su mary of a intervie with ker that he told a so-called Peer Review Board that he advised Katie of this . R. 6-7. rt f the dismi sal Order is Justice Schlesinger's finding that Katie ti t rec r s." R. 7, 13. Based on this finding, the trial court held that ti er' act al l tion ent's requirement, at the invitation t, did not make Respondent's refusal to grant her the DS degree ri i . R.13. The Order states, in part: "It is undisputed that, in t t obtain the nece sary PMV credits, Ms. Kickertz fabricated patient . . lesinger's finding that Katie "falsified patient records" was not it ade ithout a hearing. 1 Katie had off red evidence in t this finding that she made no such admission: . h never "ad itte to falsifyin patient treatment recor as s. A l of their examples are statements taken out of context. at "for was merely fi ling out "encounter forms" to t of the money owed to NYU. Th se forms are internal nts t rt t P V pay f t dents. T en s d 's hart. ly t a t a t enteri fal data into the patient's i a latant mischaracterization of the facts. . 's llegation that I fa ied t's arts e m t t e fact that the University does not maintain charts for their The only data that is collected is for the purposes of billing. To my 1 l , such a hearing was guaranteed to Katie by CPLR 7804[h]. 4 knowledge, beyond this data, there are no long term records kept regarding patients treated at the clinic. 7. I created the encounter sheets because I truly believed that Dr. Meeker and Dr. Hershkowitz had directed me to pay the balance of what I allegedly owed out of pocket. Due to Dr. Meeker and Dr. Hershkowitz’s refusal to offer me patients to treat, I could not fathom how else they would have expected the money to be earned. In fact, Dr. Hershkowitz specifically told me "You’re not getting any of your patients back. You have to give us the money or you’re not going to graduate." Moreover, Dr. Meeker had, on several occasions, manipulated encounter sheets to facilitate students earning PMV credit by crediting procedures that had not occurred. The information on encounter sheets would typically take several days to enter NYU’s computer system and Ivan Comejo, the clinic manager, would frequently make Dr. Meeker’ s changes without any supporting paperwork. 8. After I paid the balance of my PMV requirement on June 1, 2009, I was summoned back to NYU and confronted by Dr. Hershkowitz. I explained that I acted as he directed me to by paying the balance out of pocket. I admitted creating the encounter forms, but at no time claimed that I had falsified a patient’s chart or records. My credit card was credited with a portion of the PMV payment that I made, however to date NYU has never refunded the $200.00 that I paid in cash. R. 436-437. As Eric Ploumis, a professor of dentistry at Respondent, stated in his affidavit in opposition to Respondent’s motion to dismiss: 4. NYU’s allegation that Katie made fraudulent entries into patient’s charts is an incorrect and misleading assessment of the events that transpired. Katie created encounter sheets for the amount of PMV that she is alleged to have owed NYU. Encounter forms are only used by the NYU secretarial staff to administer the PMV payments by students to the University, and are not part of a dental clinic patient’s chart. 5. Katie had no ability to access the patient’s charts or records. NYU never maintained patient treatment records beyond what was needed to bill insurance providers for the services that were allegedly being preformed in the clinic. PMV payments never appear in patient records. 5 e this data, there are no long term records kept regarding tr ated at the clinic. t encounter sh ets because I truly believed that Dr. Me ker ershko itz had directed me to pay the b lance of what I all gedly t et. Due to Dr. Meeker and Dr. Hershkowitz's refusal to r tr I could not fathom how else they would have t be earned. In fact, Dr. Hershkowitz specifically told 're t tti g y i ts ck. You have to give us the 're not ing to duate." Moreover, Dr. Meeker had, on i s, manipulated encounter sheets to facili ate students earning crediting procedures that had not o curred. The information e s wo typic l take several days to enter NYU's t r Iva Cornejo, the clinic manager, would frequently eeker' s ithout any su porting paperwork. . t balanc of my PMV requirement on June 1, 2 09, I s s ned ck N and confront by Dr. Hershko I l ined t at h direct to by paying the balance out of I admitted creating the encounter forms, but at no time claimed that atient's chart or records. My credit card was credited with f t e P V payment that I made, however to date NYU has n ver t $200.00 that I paid in cash. 43 As Eric Ploumis, a professor of dentistry at Respondent, stated in his ition to Respondent's motion to dismi s: 's ti n t fra t e i patie t' arts an inco rect and misleadin a sess t of the events that Katie created encounter sheets for the amount of PMV that she is l ed to e . Encounter for are onl used by the NYU retarial staff admi the PMV payments by students to the are not part of a dental clinic patient's chart. . tie 's rts rds. N patient treatment records beyond what was ne ed to bill f r the services that were allegedly being preformed in PMV payments never a pear in patient records. R.411. In response to this evidence, Respondent did not provide affidavits or any documentary evidence for the proposition that Katie falsified patient records. R. 278-279, 285, 292. Most notably, Dean Anthony Palatta, despite submitting a sworn affidavit in support of Respondent’s motion to dismiss, was unable to argue or even conclude that Katie falsified patient records. R. 302-317. Moreover, Respondent stated in its Reply Memorandum of Law in Support of its Motion to Dismiss the Petition that "Kickertz asserts that this Court should reject the PRB’s decision [sic] in her case, because it rests solely on an email exchange between two New York University ("NYU") employees containing hearsay." R. 620. In response to Petitioner’s argument, Respondent stated that "Kickertz admitted to the student members of the PRB Investigating Panel who interviewed her that she had forged treatment records for four patients and falsified a chart entry for another patient." Id. In this passage, Respondent did not disclose to the Court in making this claim that it was paraphrasing what two students said that Katie allegedly stated to them. However, Respondent was unable to deny that these paraphrased comments might be "pure hearsay." Id. It was forced to maintain that "reliance on hearsay evidence was entirely appropriate" given "the legal standard that applies here" in an Article 78 proceeding. Id. t this evidence, Respondent did not provide affidavits or any idence for the proposition that Katie fals fied patient records. R. , . Most notably, Dean Anthony P latta, despite submitting a it i support of Respondent's motion to dismi s, was unable to argue t t tie falsified patient records. R. 302-317. Moreover, t stated in its Reply Memorandum of Law in Support of its M tion to tition that "Kickertz a serts tha this Court should r ject the PRB' s [si in her case, because it re t so ely on an email exchange between two ") e ployees containing hearsay." R.620. In titioner's argument, Respondent stated that "Kickertz admitted to the rs of the PRB Investigating Panel who interviewed her that s e had t ent records for four patients and falsified a chart entry for another , espondent did not disclose to the Court in making i t at it was paraphrasing wha two student said that Katie all gedly However, Respondent was unable to deny that th se paraphrased i t b "pure hearsay." f t aintain that "reliance on i ence was entirely a propriate" given "th legal standard th t applies i rticle 78 proc eding. 6 The Order characterized Petitioner’s conduct as "clearly wrongful" without citing any Code of Ethics and Professionalism or other manuals or contracts adopted by NYU. R. 7. Regarding the procedures selected by Respondent to expel Katie, the Order states "[b]efore NYU made its final determination to dismiss Ms. Kickertz, it afforded her a hearing before her peers." R. 7. It concludes that: "The hearing was conducted before the Peer Review Board pursuant to the rules then in effect." Id. Thus, Justice Schlesinger made a finding of fact that the PRB rules selected by Respondent were in effect at the time of Petitioner’s expulsion. This finding was contradicted by Respondent’s reply brief, as well as Petitioner’s memoranda. The former admitted that "the rules governing the Peer Review Board were initially labeled a ’Proposal’ they were also marked ’FINAL’." R. 618. (citing R. 260-267; R. 402-409; R. 306-317.) The Order also concedes that Katie was expelled improperly by Respondent. R. 11. First, Katie was unilaterally expelled by Respondent without a hearing. R. 69. Justice Schlesinger relegates this substantial event to a footnote. R. 8. Justice Schlesinger’s Order did not mention, however, the fact that Katie was subsequently expelled for the third time after the hearing referenced by the court by the same board that expelled her in absentia. R. 159-160. 7 i etitioner's conduct as "clearly wrongful" without f thics and Profe sionalism or other manuals or contracts . . 7. rocedures selected by Responden to expel Katie, the Order ade its final determination to dismiss Ms. Kickertz, it r eers." R.7. It concludes that: "The hearing was f re the Peer Review Board pursuant to the rules the in ffect." chlesinger made a finding o fact that the PRB rules selected by i ffect at the ti e of Petitioner's expulsion. This finding was dent' reply brief, as we l as Petitioner's memoranda. The itted that "the rules governing the Peer Review Board were initially ' ' ' '. R. 618. (citing R. 260-267; ; . 306-317.) r also concedes that Katie was expelled improperly by Respondent. . irst, atie was unilaterally expelled by Respondent without a hearing. R. Justice Schlesinge r legates thi substantial event to a footnote. R. 8. Justice l singer' rder did not mention, however, the fac that Katie wa subsequently lled for the third time after the hearing r f renced by the court by the same t t expelled her in absentia. R. 159-160. The Order also states that Respondent’s dismissal of Katie was "based on the application of its disciplinary rules, as well as academic standards." R. 8. The decision suggests, without actually deciding or citing any evidence supporting the statement, that Respondent properly replaced its "Code of Ethics" with a "Peer Review Board Proposal." Id. The Court cites in support of the idea that the Peer Review Board "Proposal" was the correct procedure, exhibit 7 to the Affidavit of Dr. Eric Ploumis. R. 260-267, 402-409. The Appellate Division should be made aware that initially, there was an error in the exhibit 7 that was attached to the Ploumis affidavit. This filing error was corrected by a subsequent filing pursuant to CPLR 2001. The Ploumis affidavit’s exhibit 7 was originally erroneously submitted as the Peer Review Board "Proposal" dated 2/6/09. However, the Code of Ethics, not the Peer Review Board Proposal, was actually submitted as an exhibit to correct the error. R. 402-409. The decision then finds that Respondent’s PMV requirement was "included in the curriculum." R. 9. It does not explain whether the 2005 curriculum, when Katie enrolled, or the 2009 curriculum, when she graduated, was what was meant. R. 60-61. There was no hearing on any of these issues before the Supreme Court. The Supreme Court concluded that under Court of Appeals’ precedent, the standard for judicial review of an academic decision by a private university under Article 78 is "arbitrary or irrational." R. 10. The Court then finds that "NYU states that Respondent's dismi sal of Katie was "based on f i is i li ar rules, as e l as academic standards." R. 8. The sts, ithout actually deciding or citing any evidence supporting the s ndent properly replaced its "Code of Ethics" with a "Peer r osal." it s in support of the idea tha the Peer " roposal" was the correct procedure, exhibit 7 to the Affidavit of . . 260-267,402-409. The A pellate Div sion should be made t i itially, there was an error in th exh bit 7 that was ttached o the it. This f ling error was corrected by a subsequent filing pursuant The Ploumis affidavit's exhibit 7 was or ginally erroneously t eer eview Board "Proposal" dated 2/6/09. How ver, the Code t t eer Review Board Proposal, was actually submitted as an t t err r. R. 402-409. i i then finds that Respondent's PMV requirement was "inclu ed l . R.9. It does not explain whether the 2005 curriculum, when r lled, or the 2 09 curriculum, when she graduated, was what was meant. There was no hearing on any of th se issues before the Supr me Court. r e ourt concluded that under Court of A peals' preceden , the f r icial review of an academic dec sion by a private university under i itr r or irrational." R. 10. The Court then finds that "NYU 8 ~ifJij&.!.'*f"jt.po .'T -------- substantially complied with the guidelines and procedures set forth in the Code of Ethics in effect at the time of the proceedings. Ms. Kickertz’s reliance on an outdated set of rules is misplaced." Id. R. 11. On Page 7, the Supreme Court stated that "there may have been some deviation by NYU from literal compliance with its rules when the final expulsion determination was reached," but did not make a finding as to what "some deviation" means. R. 11. Moreover, the Court found that "Ms. Kickertz has not established any prejudice" resulting from this noncompliance by Respondent with its own rules. R. 11. However, the Court did not review any of the evidence of prejudice submitted by Katie. Id. Thus, the court decided that Respondent substantially complied with its own rules, without itemizing which of the rules of Respondent were complied with, and which were violated while ignoring the evidence presented by Katie which showed that she was prejudiced by Respondent’s failure to follow its own rules. On Page 8, the Court’s Order turned to the "academic aspects of the decision" indicating that a new analysis of Katie’s expulsion was being undertaken using the academic standard. The Court held that even if Respondent did not advertize the PMV in 2005, Respondent has "broad authority to set its curriculum and it’s reasonable to include a clinical practice as a requirement for graduation s stantia ly complied with the guidelines and procedures set forth in the Code of t ics in e fect at the time of the proc edings. Ms. Kickertz's reliance on an t ated set of rules is misplaced." I . 11. age 7, the Supreme Court stated that "th re may have been some i tion by NYU from literal compliance with its rules when the final expulsion t r ination was reached," but did not make a finding as to what "some ans. R. 11. , the Court found that "Ms. Kickertz has not established any i e" resulting from this noncompliance by Respondent with its own rules. 1 However, the Court did not review any of th evidence of prejudice tt by atie. t court decided that Respondent substantially it its own rules, without itemizing which of the rules of Respondent lied ith, and which were violated while ignoring th evidence atie hich showed that she was prejudiced by Respondent's failure· it o n rules. urt's Order turned to the "academic aspects of the i icating that a new analysis of Katie's expulsion was being undertaken t r . The Court held that even if Respondent id not i 005, Respondent has "broad authority to se its curric lum ' t include a clinical practice as a requirement for graduation 9 from the College of Dentistry." R. 12. The court further notes that attempts to portray the PMV as a "money-making venture for NYU, rather than as a serious curriculum requirement, falls flat." Id. On Page 9, the Court conceded that Katie eventually completed the PMV requirement, assuming it to have been valid. R. 13. Yet the Court’s conclusion, without a hearing, that Katie falsified "patient records" led it to conclude that Katie’s successful completion of the PMV requirement did not necessitate Respondent’s granting of her degree. Id. The Court further held that even if Respondent denied Katie the reasonable accommodation of a lawyer instead of a faculty advisor, under the rules it would not have made a difference to the outcome of the hearing. R. 12. To justify this finding, the court again reiterates its conclusion, arrived at without a hearing, that Katie admitted to falsifying patient records, even though Katie submitted evidence that there had been no such admission. Id. Finally, it was undisputed that Katie eventually satisfied Respondent’s PMV requirement as instructed by Respondent, even though it was not disclosed to her at the time of enrollment. R. 13. For example, Katie submitted the following evidence in her affidavit: 13. On June 1, I went to Dr. Meeker’s office in New York at 9 a.m. He told me that it would have all been taken care of if I had not called or emailed the clinic because doing so made Dr. Wolff aware of the situation. A true and correct copy of an email from Dr. Anthony Palatta to Plaintiff 10 r R. 12. The court further notes th attemp s to a " oney-making venture for NYU, rather than as a serious i t, fa ls flat." . ourt conceded that Katie eventually compl ted the PMV i it t have been valid. R. 13. Yet the Court's conclusion, ri , that Katie falsified "patient records" led it to conclude that ' essful completion of the PMV requirement id not n cessi ate t' r ti f her degree. t f rther held that even if Respondent denied Katie th reasonable ti n of a lawyer instead of a facuIty advisor, under the rules it would a ifference to the outcome of the hearing. R. 12. To justify this rt again reiterates its conclusion, arrived at without a hearing, that itted to falsifying patient records, even though Katie submitted evidence t a been no such admi sion. it s undisputed that Katie eventually satisfied Respondent's PMV ir ent as instructed by Respondent, even though it was not disclosed to her at ti f enroll ent. R. 13. For example, Katie submitted the following i ce in her a fidavit: . On June 1, I went to Dr. Meeker's o fice in New Yor . He th t it would have all b en taken care of if I had not called or t clinic because doing so made Dr. Wolff ware of the si uation. tr an correct copy of an email from Dr. Anthony Pala ta to Plainti f reflecting Dr. Wolff s awareness of the situation involving Dr. Meeker as of June 1 is attached as Exhibit 8.... Both Dr. Meeker and Hershkowitz acknowledged that there were no patients on my roster and told me that they would not let me treat any NYU clinic patients because they had students they were already assigned to once I had been scheduled to graduate. Dr. Meeker instructed me to just get the money so that I would not be there any longer. I was told that they did not intend to give me patients to treat and that they were only concerned that the money for the PMV goal they wanted to meet show up on my account to satisfy the $21,000 requirement. After I left the meeting, I walked out of the office and proceeded three feet to Dr. Hershkowitz’s secretary. I immediately followed their directive by giving Dr. Hershkowitz’s secretary encounter forms for a total of $2,050. I paid $200 in cash (all I had), and $1,850 on my credit card. The money was accepted as a normal occurrence in plain view of all clinic attendees and was not questioned by anyone. I truly believed that the only focus was on the money requirement. I did not intend to deceive anyone.... 14. On June 2, 2009, I went with my mother to the clinic where we spoke to Dr. Hershkowitz and then to Dr. Wolff.... [At that meeting], I was instructed to go to the clinic and start working on the PMV. Dr. Wolff stated, "I suggest you get moving." I attended all assigned clinic sessions as well as off session times to make money for my PMV. Dr. Meeker and Dr. Hershkowitz still refused to assign any patients to my roster, however. I contacted classmates to see if they had any unassigned patients who needed work, I provided care to a D3 student, took multiple emergency patients, and begged other D3 students to let me provide the care for their scheduled patients. I worked hard in a very difficult environment to complete the PMV, and was deeply offended when Dr. Palatta told me that Dr. Wolff reported to him falsely that I had not seen any real patients. I reached the required amount of PMV on June 8, 2009. Dr. Palatta was aware that I had completed $21,108 in PMV and instructed me that I needed to keep coming to clinic and continue treating patients to earn even more PMV. It was very difficult for me to keep coming to clinic sessions in June..... 32. The letter from Dr. Ploumis to NYU corroborates what Dr. Meeker and other NYU students already told me, which is that other students, particularly male DDS students, were allowed to return to NYU and graduate despite making false statements, filling out forms incorrectly, or violating NYU’s expectations. I only requested the same accommodation provided to other similarly situated students, and represented no burden 11 ti r. olffs awarene s of the situation involving Dr. Me ker as of 1 is attached as Exhibit 8 ... Both Dr. Meeker and Hershkowitz l ged that there were no patients on my roster and told me that they let e treat any NYU clinic patients because they had students l as i t on I had been scheduled to graduat . Dr. r instructed me to just ge the money so that I would not be there any I as told that they did not intend to give me patien s o tre t and that only concerned that the money for the PMV goal they wanted to on y a count to satisfy the $21, 0 requirement. After I left , I walk out of the office and proc eded thr e f et to Dr. 's retary. I immediately fo lo e their directive by giving 's t r s t t of . i ha an $1, cre c The money was a nor al o cu rence in plain view of all cl nic attendees and was e. I truly believed that the only focus was on the I did not intend to deceive anyone ... . On June , 2009, I went with my mother to the clinic where we spoke Hers th to Dr. Wol f .. [A that meeting], I was tr cted to t cli i an start worki on the PM . Dr. Wolff t u get oving." I attended all assigned cl nic essions as ff session ti es to make money for my PMV. Dr. Me ker and Dr. kowitz stil r fused t ts r r. I t see if they had any unassigned patients who ne ed r ided care to a D3 student, t ok multipl emergency patients, and d r st t let me provide the care for their scheduled tients. I worked hard in a very difficult environment to complete the , ff Palatt tol me that Dr. Wol f rt d to i falsely that I had not seen any real patients. I reached the J 8, 200 . Dr. P latta was aware that I had i P and instructed me that I needed to keep coming ti treating patients to earn even more PMV. It was very co ing to clinic se sions in June .. . The letter from Dr. Ploumis to NYU corroborates what Dr. Meeker d stud alrea told me, which is that other students, rticularly ale st , a lo to return to NYU and uate ite f state filli out for s inco rectl , or l ting 's ectations. I only requested the same a commod ti vided t si il situat stud an represe t no burden whatsoever on NYU. In fact, NYU had already benefited to the tune of more than $2,000 from my additional PMV work in the clinic in June and July 2009, not to mention the nearly $20,000 Dr. Meeker claimed that I earned prior to June 2009, and the hundreds of thousands of dollars in tuition and fees I paid to NYU between 2005 and 2009. R. 66-67, 80-81. Additionally, Katie submitted the following evidence in Dr. Ploumis’ affidavit: 6. Katie’s clinic director made it clear that Katie’s only hope of graduating was to go back to the clinic and make up the PMV money that Katie allegedly owed. Katie worked in the clinic for the entire month of June trying to earn the money that she allegedly owed to NYU. Despite her good faith efforts to comply with Dr. Wolff’s directions that she go to the clinic and bill, Drs. Meeker, Hershkowitz, and Palatta all failed to assign her any viable patients the entire time she was working in the clinic. R. 411. ARGUMENT I. THE TRIAL COURT ERRED IN DENYING THE ARTICLE 78 PETITION ON THE MERITS A. CPLR 7804[H] Requires A Hearing Prior to Dismissal of an Article 78 Petition Article 78 permits a party to bring a special proceeding to obtain the relief that was available at common law by the writs of certiorari, mandamus, or prohibition. N.Y. CPLR § 7801. An Article 78 proceeding is available for judicial review of a final decision by a body or officer, including a university established as a board, corporation, tribunal, or aggregation of persons. See id; CPLR. § 7802, 12 hatsoever on NYU. I fa N ha alre b t t f ore t , 0 i nal rk July 9, t t ne $2 , e cl i t I 9, and the hundreds of thousands of dollars in tuition t betw en 2 05 and 2 09. . Additiona ly, Katie submitted the following evidence in Dr. ' . ' t r a it clear that atie's only hope of t back to the clinic and make up the PMV money that Katie worked in the clinic for th entire month of t ney that she a legedly owed to NYU. Despite her t t co ply with Dr. Wolffs directions that she go to the . eeker, Hershkowitz, and Palatt all failed to assign her tients the entire time she was working in the cl nic. . . THE TRIAL COURT ERRED IN DENYING THE ARTICLE 78 . ) ires A earing Prior to Dismi sal of an Article 78 titi i l 7 per its a party to bring a special proceeding t obtain the r lief t s available at common law by the writs of certio ari, mandamus, or i iti . N.Y. CPLR § 7801. An Article 78 proceeding is v ilable for judicial ie of a final decision by a body or officer, including a university established as ar , corporation, tribunal, or a gregation of persons. ee id; . § 7802, 12 Eidlisz v. New York University, 15 N.Y.3d 730, 932 N.E.2d 876 (N.Y. 2010). Article 78 guarantees relief from "arbitrariness or irrationality." Eidlisz, 15 N.Y.3d at 732, 932 N.E.2d at 877; see also 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 (198 1) (refusing to dismiss claim that university’s improperly denied plaintiff credits toward doctorate degree). Article 78 requires a finding as to whether a "university’s determination is rationally based upon the evidence; otherwise the determination is arbitrary and capricious." In re Susan M v. New York Law School, 76 N.Y.2d 241, 245, 556 N.E.2d 1104 (1990). "Under CPLR Article 78, institutions, even private ones, are accountable for the proper discharge of their self-imposed and statutory obligations." 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). This is because self-imposed university disciplinary codes are advertised and designed to ensure fairness. See id. 4 Misc.3d at 700-1, 780 N.Y.S.2d at 285. Thus, "the obligation to follow its own rules has been applied to a private university without reference to contract law." Tedeschi v. Wagner College, 49 N.Y.2d 652, 660, 404 N.E.2d 1302, 1306 (1980). The Court of Appeals has therefore held 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." Id. 13 i li . York University, 15 . .3d ( . . 2010). rt relief fro "arbitrarine s or irrationality." i li , 15 . . t , . . at 877; v e York University, 3 . . , . .S.2d 12 (1st Dep't 1981), r f . . , . . . . 140 (198 (refusing to dismi s claim that university's improperly i tiff credits toward doctorate degree). a finding as to whether a "university's determination is on the evidence; otherwise the d termination is arbit ary and . v. New York Law School, , 245,5 ( "Under CPLR Article 78, insti utions, ven private ones, are f t e proper discharge of their self-imposed and s a utory ti s." t v Yeshiva Un ve ity~ , 701-2, 780 N.Y.S.2d , ( . . t., N.Y. Cty. 2 04). This is because self-imposed university i li ary codes are advertised and designed to ensure fairness. id. . at 700-1, 0 .Y.S.2d at 285. Thus, "the obligation to f llow its own as been applied to a private university without r f rence to contract law." i v. Wagner College, . .2d 652, 660,404 N.E.2d 1302, 1306 (1980). ourt of Appeals has therefore held that "when a university h s adopted a rule r i eline establishing the procedure to be followed in relation to uspension or lsion that procedure must be substantially observed." I . 13 As part of its final determination regarding the underlying Article 78 petition, the trial court "ADJUDGED that the Article 78 Proceeding is denied and dismissed without costs or disbursements []" It is respectfully submitted that the trial court erred in coming to this conclusion because there were several triable issues of fact existed as to whether Respondent failed to comply with its own disciplinary procedures, acted arbitrarily and capriciously in refusing to admit essential evidence at Petitioner’s disciplinary hearing, and imposed a punishment that was excessive and shocking to one’s sense of fairness. A trial court’s dismissal of an Article 78 petition notwithstanding the existence of even one issue of fact constitutes reversible error. See 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) (reversing dismissal of Article 78 petition 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 (1st Dep’t 1986) (similar) (citing CPLR 7804[h]). The Court’s Order improperly resolved the merits on a prediscovery motion to dismiss, without a CPLR 7804[h] hearing. See CPLR 7804[h] ("If a triable issue of fact is raised in a proceeding under this article, it shall be tried forthwith."); CPLR 3212[b] ("Except as provided in subdivision (c) of this rule [a 14 s t r ination regarding the underlying Article 78 tit rt JUDGED that the Article 78 Proceeding is denied and i i i rse e ts [.J" It is respectfully submitted that the i l i ing to this conclusion because there w re several triable i t a t hether Respondent failed to comply with its own , acted arbitrarily and capriciously in refusing to admit i ce at Petitioner's disciplinary hearing, and imposed a punishment ' . A trial court's f a rticle 78 petition notwithstanding th existence of ven one issue titutes reversible error. sl v. East Ramapo Cent. Sch ol f Educ., . 633, . d 53, ' i is issal of Article 78 pe tion where "a triable issue of fact was raised ... r , the Supreme Court should not have dismissed the proceeding t conducting a hearing") (c ting CPLR 7804[h]); i tta v. McMickens, 89, 2, 9 N.Y.S.2d 960,962 (1st Dep't 1986) (similar) (citing 7804[h]). ourt's Order improperly resolved the merits on a prediscovery m tion t is iss, without a CPLR 7804[h] hearing. e 7804[h] ("If a triable i f fact is raised in a proc eding under this article, it shall be tried f rt it . "); CPLR 3212 [b] ("Except as provi ed in subdivision ( c) of this rule [a 4 motion for summary judgment] shall be denied if any party shall show facts sufficient to require a trial of any issue of fact."); EBCJ, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 20, 99 N.Y.S.2d 170, 175, 832 N.E.2d 28 (2005) ("[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss"); Castle Village Owners Corp. v. Greater New York Mut. Ins. Co., 868 N.Y.S.2d 189, 192 (1st Dep’t 2008) (on motion to dismiss under CPLR § 3211, court should accept petitioner’s allegations as true, draw all reasonable inferences in its favor, and only "determine whether the allegations of the complaint when viewed most favorably to the plaintiff fall within any cognizable legal theory.") (emphasis added). 2 The trial court erred in resolving several issues of fact summarily on the pleadings, without a hearing as required by CPLR 7804[h]. First, the court determined that Respondent complied with its own procedures, an assertion which Katie refuted in two affidavits filed in opposition to Respondent’s motion. R. 8- 12. Katie had sought a hearing on whether Respondent complied with its own Code of Ethics or Peer Review Board Code; the Court, however, improperly 2 Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 (2d Dept 2006) ("[w]hether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss."); JFK Family Ltd. Partnership v. Millbrae Natural Gas Development Fund 2005, L.P., 873 N. Y.S.2d 234 (Table), 2008 WL 4308289, at *25 (N.Y. Sup. Ct., Westchester Cty. 2008) (court should not weigh evidence on motion to dismiss). 15 ti t] sha l be denied if any party shall show facts s i i t t i a trial of any i sue o fact. "); I, I c. v. l , c s & ., . . , , . . 170, 175,832 N.E.2d 28 (2 05) ("[w]hether a ff ti t l establish its a legations is not part of the calc lus in t i i ti t dis iss"); tl v. Greater New t. I . o., 18 , 192 (l t Dep't 2 08) (on motion to dismiss , court should a cept pe tioner's allegations as true, draw all i f r s in its favor, and only "determine whether the allegations of l i t hen viewed most favorably to the plaintiff fall l l theory.") is ad .2 t rred in resolving several i sues o fact su marily on the it t a hearing as required by CPLR 7804[h]. Firs , the court t at espondent complied with its own procedures, an assertion which t i t affidavits filed in o position to Respondent's motion. R. 8- atie had sought a hearing on whether Respondent complied with its own f thics or Peer Review Board Code; the Court, however, improperly 2 Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, . .3d 34, ( ept 20 ) ("[ ]hether the complaint will later survive a motion for su mary judgment, r ether the plainti f i l ultimately be able to prove its claims, of course, plays no part in the ter ination of a prediscovery CPLR 32 1 motion to dismi s."); J K a ily t rt r i v ill t l evelop ent Fund 2005, L.P., . ( l ), 2008 L , at *25 ( . . Sup. Ct., estchester Cty. 2008) (court should not weigh evidence on otion to dismiss). 5 concluded that Respondent had complied with its policy without a hearing. 3 In the Supreme Court, Katie requested that a hearing be held regarding whether the procedures used complied with Exhibit B to the Palatta affidavit, and/or with the Code of Ethics. Relevant questions that remain unanswered include: • The PRE was supposed to be representative of the DDS students. Did they all, including Petitioner, receive notice of the opportunity to be on PRB? Did the members of her PRB serve as full members for the whole year? Were members from D2 and D3 recruited in May as required? The PRB "Proposal", Exhibit B to the Palatta Affidavit, stated: ’Each of the four pre-doctoral DDS classes (Dl, D2, D3, and D4) will be represented by two (2) members from each class to serve on the Board. Student candidates for these positions will make their interest known to the Office for Student Affairs based on a petition or formal application. In addition, yearly, during the months from May 1-November 1, due to the graduation of the two (2) senior students and the delay of recruiting two (2) incoming Dl students, there will be the recruitment of two (2) mid-year members. These members, one from the D2 class and one from the D3 class will serve directly on the PRB as full members from May 1- Nov 1 and will attend all trainings and be present at all current cases." R. 306-317. • The student government is supposed to be involved in the PRB process. Who was the Chair of the PRB? Was Student Council on it? Did Dean Palatta act as Chair of the Board? "The Chair of the Board, also a student adjudicator, shall be the President of the Student Council, [and] shall be the presiding officer at all meetings of the Board." This is according to R. 306-317. • Did student panelists serve as active class officers or members of the Student Council? The PRB Proposal says: "Other than the Chair of the Board, student adjudicators cannot be active class officers or active members of the Student Council." R. 306-317. • The PRB is supposed to have nine month terms but this was impossible in this case because new PRB rules supposedly came out mid-year in February. How did Dean Palatta address this? The PRB says: "The terms of the Board shall be from September 1 through August 31 of the following year; the terms of the board shall automatically extend beyond August 31 in order to complete any hearings already in progress. New cases that arise on or after August 31 will be referred to the succeeding board." Id. • Did the Chair of the PRB first contact Petitioner regarding the proceedings? The PRB says: "Any student against whom a complaint has been filed shall be advised of the commencement of disciplinary proceedings by the Chair of the Board upon activation of the Investigating Panel and shall be informed that s/he may seek the counsel of an adviser from within the University." Id. • Who made up the College Review Board of faculty, and how many voted to adopt the PRB’s report? Did it choose its own Chair or did Palatta demand to be on it? The PRB says: "The College Review Board will consist of three (3) members of the faculty appointed by the Dean. The members will choose its own chair." • Did Dean Palatta follow the correct procedures in adopting the PRB rules? The PRB says: "Suggestions for changes shall be made in writing, reviewed by the full Board and adopted if appropriate." Moreover, it says: "The Dean of the College of Dentistry shall present the proposed changes [in the rules] to the Executive Management Council for its consideration within one academic semester." R. 306-317. 16 t at espondent had complied with its policy without a hearing.3 3 re e Court, Katie requested that a hearing be held regarding w ther the procedures li ith xhibit B to the Palatta affidavit, and/or with the Code of Ethics. Relevant t t re ain unanswered include: • The PRB was supposed to b representative of the DDS students. Did they all, including , re i notice of the o portunity to be on PRB? Did the embers of her PRB rs for the whole year? W re members from D2 and D3 recruited in May The PRB "Proposal", Exhibit B to the P latta Affidavit, stated: "Each of the classes (Dl, D2, D3, and D4) will be repr sented by two (2) embers l t ser e on the Board. Student can idates for th se positions will make their to the O fice for Student Affairs based on a petition or form l application. In rl , during the months from May 1-November 1, due o the graduati n of the i r students and the delay of recruiting two (2) incoming D 1 students, there will it ent of two (2) mid-year members. Th se members, one from the 02 class and t 0 class wi l serve directly on the PRB as full members from May 1- Nov 1 be present at a l cu rent cases." R. 306-317. • The student government i supposed to be involved in the PRB proce s. Who was the Chair Was Student Council on it? Did Dean P l tta act as Chair of the Board? "The f t ar , also a student adjudicator, shall be the President of the Student Council, ... ] i i g o ficer at a l m etings of the Board." Th is according to R. • Did student panelists serve s active class officers or embers of the Student Council? The l sa s: "Other than the Chair of the Board, student adjudicators cannot be active ti e bers of the Student Council." R. 306-317. • The PRB is supposed to have nine mon h terms but this was impossible in this cas because sedly came out mid-year in February. How id Dean Pal tta address The PRB says: "The terms of the Board shall be from September 1 through A gust 31 ear; the terms of the board shall automatically extend beyond A gust 31 in l t any hearings already in progress. New ca es th t arise on or after A gust f rr t the su c eding board." • Did the Chair of the PRB first contact Petitioner regarding the proceedings? The PRB ays: t i st ho a complaint has b en filed shall be advised of the t f disciplinary proc edings by the Chair of the Board upon activati n of the a el and sha l be informed that s/he may seek the counsel of n adviser from i ersity." • Who made up the Coll ge Review Board of faculty, and how many voted to adopt the PRB' s Did it choose its own Chair or did Palatta demand to be on it? The PRB says: "The i ard i l consist of thr e (3) members of the faculty appointed by the ill choose its own chair." • Did Dean Pal tta f llow the correct procedures in adopting the PRB rules? The PRB ays: sha l be made in writing, reviewed by the full Board and adopted if Moreover, it says: "The Dean of the Coll ge of Den istry shall present the [in the rules] to the Executive Management Council for its consideration i R.306-317. Second, the court declared that Katie falsified patient records, an assertion which both an employee of the Respondent and Katie herself disproved in their affidavits. R. 8-13. Third, the court found that Respondent’s PMV requirement to earn billable hours as a dental student, in addition to earning the academic credits advertised as the sole requirement for graduation when Katie enrolled in 2005, was validly imposed, without examining any of Respondent’s advertising, or the parties’ affidavits. R. 8-13 (Order pp. 4-9). The Court erred in ruling that Respondent substantially complied with its own procedures. It ruled without comment (or by implication) that Respondent’s "Proposal" document was complied with even though Katie was denied a fair opportunity to question the witnesses against her, which even the "Proposal" required. R. 33 ¶ 23. Respondent’s PRB "Proposal" stated clearly: "Each side shall have a fair opportunity to question the witnesses of the other." R. 313 ¶ C (2). Respondent’s Code of Ethics and Professionalism also stated that: "Each side shall have a fair opportunity to question the witnesses of the other." R. 110 ¶ 2. The Court also erred in ruling on the substantive requirements of Respondent’s Code of Ethics and Professionalism without a hearing as to which version of it was in effect, and what its terms were at the time of Petitioner’s expulsion. The brief of Respondent, and of Katie herself, established that Respondent’s Code of Ethics and Professionalism governed "all aspects of ethical r 17 £~:.~._ .~~i>~~f1:"': ~ -- rt declared that Katie fals fied patient records, an assertion w ich l ee of the Respondent and Katie herself disproved in their affidavits. 8- Third, the court found that Respondent's PMV requirement to earn rs as a dental student, in a d tion to ear ing the cademic credits t sole requirement for graduation when Katie enrolled in 2005, was i , ithout examining any of Respondent's advert sing, or the ' ffidavits. 8-13 . i ruling that Respondent substantially complied with its It ruled without comment (or by implication) that Respondent's l" docu ent was complied with even though Katie was denied fair t estion the witne ses against her, which even the "Proposal" . R. 33, 23. Respondent's PRB "Proposal" s ated clearly: "Each side f i pportunity to question the witnesses of the other." R. 13, C Respondent's Code of Ethics and Professionalism also s ated that: "Each side f portunity to question the witnesses of the other." R. 110,2. t l erred in ruling on the substantive requirements of ent' ode of Ethics and Profe sionalism without a hearing as to which f it s in effect, and what its terms were a the time of Petitioner's The brief of Respondent, and of Katie herself, established that ent' ode of Ethics and Profe sionalism 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 ."4 In response, Respondent submitted a document entitled "Proposal" for a "Peer Review Board." R. 302-317. But this "Proposal" only became a "Code" in 2010, after Petitioner’s expulsion. R. 308-317. Further, Respondent has, subsequent to Katie’s expulsion, issued a "Code" that resembles the Peer Review Board "Proposal," but which is no longer labeled a "Proposal." Id. The Court also erred in ruling that there was no factual issue regarding whether Katie falsified patient records so as to justify her dismissal. A factual issue is raised under CPLR 7804[h] where conflicting affidavits raise a factual disputed regarding whether an "official action [was] taken on the basis of erroneous factual premises." Miciotta, 118 A.D.2d at 490, 492, 499 N.Y.S.2d at 961-62 (quoting 8 Weinstein-Korn-Miller, N.YCiv.Prac., § 7803.14 at p. 78-87). An example of conflicting affidavits is provided by affidavits disputing the nature and quality of evidence underlying a decision to terminate an employee of an agency. See id. Even where cocaine was found in a urine specimen of such an employee, for example, his affidavit alleging a possible mix-up of the specimens raised a factual issue entitling him to a hearing under CPLR 7804[h], rather than a "See R. 26; R. 105; R. 275. (citing "the published Code of Ethics and Professional Conduct of the College of Dentistry" as the governing document on ethical behavior). r 18 conduct within the College and establishes the process to be llege for adjudicating instances of noncompliance wit the .,,4 In response, Respondent submitted a document en itled "Proposal" for a . R. 302-317. Bu this "Proposal" only became a "Code" in r' . R. 308-317. Further, Respondent has, tie' lsion, i sued a "Code" that resembles the Peer Review l," but which is no longer labeled a "Proposal." t ls erred in ruling tha there was no factual issue regarding l ifi patient records so as to justify her dismissal. A factual i under CPLR 7804[h] where conflicting affidavits raise factual i hether an "o ficial action [was] taken on the ba is of f t l premises." 90, 92, 99 N.Y.S.2d at ting 8 einstein-Kom-Miller, . i . rac., p. . f flicting a fidavits is provided by affidavits disputing the nature f i ence underlying a decision to terminate an employee of an i . re cocaine was found in a urine specimen of such an a le, his a fidavit alleging a possible mix-up of the specimens f t l issue entitling him to a hearing under CPLR 7804[h], rather than a 4 See R. 26; . . t lished Code of Ethics and Profe sional Conduct f i tr " as the governing document on ethical behavior). dismissal prior to any discovery or a hearing. 5 Accordingly, the Supreme Court erred when it summarily resolved these disputed issues without a hearing. B. The Court Erred in Resolving the Merits of the Article 78 Petition with Hearsay The Court’s order, as well as Respondent’s answer to the Article 78 petition and Respondent’s motion to dismiss, 6 relied solely upon hearsay to resolve the factual issue of whether Katie did, in fact, falsify patient records, which she vehemently disputes. The Appellate Division routinely reverses lower court decisions where, as here, the court relies upon hearsay evidence in Article 78 cases. See, e.g., 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) ("A careful review of these allegations reveals that they are either hearsay anonymous notes or based on sheer speculation, neither of which will rationally support the determinations of the Committee...."). Rather than conduct a hearing into the issue of whether Katie falsified patient records, the Supreme Court rejected without comment Katie’s Verified Petition and both her and Dr. Ploumis’ affidavits, leaving only Respondent’s hearsay as "evidence." See Miciotta, 118 A.D.2d at 489-492, 499 N.Y.S.2d at 96 1-62. 6 See, e.g., R. 278-279 (Resp.’s Br. Pp. 5-6) (quoting out-of-court statements by Defendant’s employee David Hershkowitz for the truth of the matter asserted by Defendant as to what Plaintiff did). 19 ri r t any discovery or a hearing.s r i ly, the Supreme Court it su arily resolved these disputed issues without a hearing. t rred in Resolving the Merits of the Article 78 Petition with t' r r, as e l as Respondent's answer to the Article 78 petition ent' otion to dismi s, 6 lely upon hearsay to resolve the i f hether Katie did, in fact, falsify patient records, whic she i t . The A pellate Div sion routinely r ver es lower court ere, as here, the court relies upon hearsay evidence in Article 78 . ., asile v. Albany College of Pharmacy of Union University, 279 199, (3d ep't 2001) ("A careful review of lle ations reveals that they are either hearsay a onymous notes or based on l ti n, neither of which will rationally support the determinations of the ... ). Rather than conduct a hearing into the issue of whether Katie i t r c r s, the Supreme Court rejected without co ment Katie's tition and both her and Dr. Ploumis' affidavits, leaving only t' r as "evidence." 5 . . at 489-492,499 N.Y.S.2d at 961-62. 6 S e, e.g., .' t' it f r t truth of the ma ter a serted by Defendant as to what tiff i . In fact, the only evidence Respondent cited to support its decision that Katie falsified patient treatment records was an email message from Respondent’s employee David Hershkowitz to another employee, Mark Wolff, paraphrasing what Katie is alleged to have told him . 7 The trial court’s apparent acceptance of these hearsay emails and recollections constitutes reversible error. See 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 where a "review of these allegations reveals that they are either hearsay anonymous notes or based on sheer speculation, neither of which will rationally support the determinations of the Committee...."); 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) (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."); Andersen v. Weinroth, 113 Misc.3d 1204(A), 824 N.Y.S.2d 752 (Table), 2006 WL 2569959, at (N.Y. Sup. Ct., New York Cty., Sept. 5, 2006) (rejecting reliance on defendant’s internal memoranda as "self-serving" attempts to attack plaintiff and vent defendant’s frustrations and as "not credible"). 8 ’ See R. 278-279 (Respondent’s brief, citing an email message from David Hershkowitz to Dr. Wolff, constituting summaries of interviews conducted by NYU students and subsequently summarized in a memo). 8 See also Lawrence v. Miller, 11 N.Y.3d 588, 595, 873 N.Y.S.2d 517, 520 (2008) (affidavits submitted by a respondent in support of dismissal under CPLR 3211 should not result in dismissal unless they "establish conclusively" that petitioner has no cause of action); Fay v. 20 - r l evidence Respondent cited to su port its decision that Katie t ent records was an email me sage from Respondent's i ershkowitz to another employ e, Mark Wolff, p raphrasing i lleged to have told him.7 The trial court's apparent a ceptance of e ails and recollections cons itutes reversibl er or. sile v. lle e of Pharmacy of Union University, . 770, 771, 719 199, (3d Dep't 2001) (refusing to dismi s Article 78 petition wh re a f t ese a legations reveals tha they ar either hearsay a onymous notes s eer speculation, neither of which will rationally support the of the Commi t e .. "); rd f egents of University f N Y., . 366, 67 (3d Dep't 1973) is issal of Article 78 pet tion that was based on a conclusion relying on t t t " as unsworn, and therefore amounted to no more than sen v. Weinroth, 3 Misc.3d 1204(A), 824 . ( a le), . t., New York Cty., Sept. 2 j ti fendant's internal memoranda as "self-serving" attempts to attack tiff t defendant's frustrations and as "not credible,,).8 7 S . (Respondent's brief, citing an email message from David Hershkowitz to Dr. f i t r i s conducted by YU students and subsequently 8 S e also Lawrence v. Miller, 11 i its t f is i l under PLR 321 should not result in lish conclusively" that petitioner has no cause of action); v. The court also erred in failing to conduct a hearing on the issue of whether Petitioner’s expulsion from Respondent’s program with no possibility of re- admittance was shocking to the conscience and constituted an excessive punishment in light of the offense and relevant precedents within Respondent’s Council on Ethics and Professionalism. A punishment which shocks the conscience may serve as the basis for relief under CPLR 7804 even assuming that a university or other agency has substantially complied with its own procedures, and a hearing must be held under CPLR 7804[h]. Due to the fact that Petitioner’s appeal of the dismissal of her petition brings the proceeding before the Appellate Division, the proper procedure at this juncture is to try all factual issues by referee or justice of the Supreme Court. See CPLR 7804[g]. Vargas, 67 A.D.3d 568, 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 141(A) (Table), 2009 WL 2407841, at *1(1st Dep’t 2009) ("unsworn, self-serving statements" inadmissible on summary judgment); Milbrandt & Co., Inc. v. Griffin, 5 Misc.3d 1011(A), 2004 WL 2532292, at *34 (N.Y. Sup. Ct., Westchester Cty., Oct. 7, 2004) (excluding as hearsay evidence an "after-the-fact characterization" of an utterance "which essentially paraphrases the ... conversation"). Cf also People v. Schuler, 23 Misc.3d 1137(A), 889 N.Y.S.2d 507 (Table), 2009 WL 1623178, at *4 (N.Y. City Crim. Ct., Mar. 2, 2009) (when a third party summarizes another’s statement, that is hearsay because it "hides from review the very essence of the issue that must be determined-the utterance itself."). This section states: "When the proceeding comes before it, whether by appeal or transfer, the appellate division shall dispose of all issues in the proceeding, or, if the papers are insufficient, it may remit the proceeding." CPLR 7804[g]. See also CPLR 7804[h] ("If a triable issue of fact is raised in a proceeding under this article, it shall be tried forthwith. Where the proceeding was transferred to the appellate division, the issue of fact shall be tried by a referee or by a justice of the supreme court and the verdict, report or decision rendered after the trial shall be returned to, and the order thereon made by, the appellate division."). 21 r I ls erred in failing to conduct a hearing on the issue of whether i er' Ulsion fro Respondent's program with no possib lity ofre- s shocking to the conscience and consti uted an excessive t i li t of the o fense and relevant precedents within Respondent's t i and Professionalism. A punishment which shocks the serve as the basis for relief under CPLR 7804 ven assuming that it or other agency has substantially complied with its own procedures, st be held under CPLR 7804[h]. Due to the fact that Petitioner's f t dis issal of her pet tion brings the proceeding before the Appellate t proper procedure a this juncture is to try all factual issues by ref ree f t e Supreme Court. 9 , 56 , 888 .Y.S.2d 405, 405 (lst Dep't 2 09) (incident report repared by police officer was inadmissible because it "contains [] he rsay, and self-serving, statements .. as to the ultimate issue offact."); 1 ( ( able), 2009 WL 2407841, at ( st ' ("uns orn, self-serving ts" inad issible on summary judgment); t Co., Inc. v. Gri fin, 5 , at *3-4 (N.Y. Sup. Ct., Westchester Cty., Oct. 7,2004) (excluding e idence an "after-the-fact characterization" of an utterance "w ich ssentially . . conversation"). f also People v. Schuler, . 1137(A), 89 ( able), 2009 WL 1623178, at *4 . . ity Crim. Ct., Mar. 2, 2 09) (when a arizes another's statement, that is hearsay because it "hides from review the f the issue that must be determined-the utterance itself "). 9 ti states: " hen the proc eding comes before it, whether by appeal or transfer, the i ision sha l dispose of all issues in the proceeding, or, if the apers are insufficien , it i ." CPLR 7804[g]. [ ] ("If a triable i sue o fact is i a proceeding under this article, it shall be tried forthwith. Where the proceeding was t the appe late division, the issue of fact shall be tried by a referee or by a justice of court and the verdict, report or dec sion rend red after the trial shall b returned to, r r thereon made by, the a pellate div sion."). C. Respondent’s Decision to Expel Katie was Arbitrary and Irrational 1. Respondent Admittedly Failed to Comply with Its Own Disciplinary Procedures Dr. Ploumis confirms that the NYU College of Dentistry Code of Ethics and Professional Conduct was "not followed in Katie’s case." R. 180 ¶ 12. He confirms that the Code of Ethics guaranteed Plaintiff "a right to an investigation by an Investigating Panel of one faculty member and one student member to conduct an investigation to ascertain facts and recommend a disposition of the complaint." Id. Plaintiff, by contrast, received a panel made up of two students susceptible to influence from the dean and administration of the college of dentistry. See id. This was important because faculty are much more independent from the administration than are students and faculty are trained in ways that make them better capable of providing due process. See id. Dr. Ploumis further states: "Under the Code of Ethics, disciplinary proceedings resulting in dismissal from the College had to be initiated by the Council on Ethics and Professionalism, which ’shall be comprised of nine (9) Faculty members, at least three (3) of which will be from the College of Nursing and nine student members...." Id. para. 13. Katie’s hearing, by contrast, was "conducted by a Peer Review Board of less than nine faculty members, and therefore were in violation of her contract with NYU." Id. (citing NYU’s College of Dentistry Code of Ethics and Professional Conduct). 22 , . Respondent's Decision to Expel Katie was Arbitrary and Irrational ent d i tedly Failed to Comply with Its Own Disciplinary r s is confirms that the NYU College of Dentistry Code of Ethics and ' . . 180 ~ 12. He t t e Code of Ethics guarant ed Plaintiff "a right to a investigation by ti ting Panel of one faculty member and one student member to conduct i tion to ascertain facts and reco mend a disposition of the complaint." contrast, received a panel made up of two students usceptible to fr the dean and administration of the college of den istry. id. i rtant because faculty are much more independent from the ti than are students and faculty are trained in ways that make them l of providing due proce s. id. i further states: "Under f thics, disciplinary proc edings resulting in dismissal from the t be initiated by the Council on Ethics and Professionalism, which 's f nine (9) Faculty members, at leas thr e (3) of which will be f i a nine student members .. . '" . . i ' contrast, was "conducted by a Peer Review Board of less than nine rs, and therefore were in violation of her contract with NYU." ' of entistry Code of Ethics and Professional Conduct). ~-.---, ..... ~ '" ;:.....,." As was the case in Tedeschi, where an administrative determination was overturned as arbitrary and capricious when the agency did not conform to its own established rules, in this case the decision of Respondent to expel Katie should be overturned because Respondent has not taken action in accord with its own established policies. Tedeschi, 49 N.Y.2d at 661, 404 N.E.2d at 1307. In addition, even Respondent’s Peer Review Board "Proposal" was not substantially complied with. The most important right that it guarantees to students is 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). Moreover, the "Proposal" states that in all cases: "Each side shall have a fair opportunity to question the witnesses of the other." Id. (emphasis added). While the "Proposal" is clear and unambiguous, Respondent failed to apply it in Katie’s case. It is undisputed that Petitioner asked for the opportunity to question all witnesses whose testimony was set forth in PRB investigating panel report, especially Dr. Meeker and Dr. Hershkowitz, but she was denied this chance at her hearing in clear violation of the Code of Ethics and Peer Review Board "Proposal." As Dr. Ploumis states: 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. 23 I I I I I t I t case in i, ad inistrative determination was as arbitrary and capricious when the agency id not conform to its own r les, in this case the decision of Respondent to expel Katie should be ecause Respondent has no taken action in accord with its own i policies. t 1, 404 N.E.2d at 1307. en espondent's P er Review Board "Proposal" was not plied with. The most important right tha it gu rantees to i t t "a l other evidence in regard to the charges shall be presented to i r by the Board," and tha the "supporting evidence shall be pres nted ti ti anel." R. 313. (empha is a ded). Moreover, the "Pr posal" i all cases: "Each side shall have a fair opportunity to question the f the other." [ While the "Proposal" is clear and ent failed to apply it in Katie's case. It is undisputed that r s ed for the o portunity to question all witnes es whos testimony was i investigating panel report, especially Dr. Me ker and Dr. , but she was denied this chance at her hearing in clear violation of the r evie oard "Proposal." As Dr. Ploumis states: 0. The ma ner in which Katie' heari i fro of the PR was cted an r ly f s l ti e. Unlike the e in place when Katie beca e a NYU student, the l sel. I served as Katie's represe t i , extre l li it th P rules and 11. At the hearing, I was not allowed to question witnesses or participate beyond advising Katie. Dr. Palatta threatened that, were I to interject or participate in any other way, 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. R. 412-413. Katie confirms this account in her affidavit. R. 73-76. Thus, in dismissing the Petition without a hearing, the Supreme Court ignored several blatant procedural violations committed by Respondent in its zeal to dismiss Katie without a fair hearing under its own rules. 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." Thus, when Katie attended her hearing in October, 2009, she was only allowed one advisor, who was an employee of her accuser, was not permitted to question witnesses and was hamstrung in his ability to adequately represent her by 24 1. I was not a lowed to question witnesses or part cipate ond vising atie. Dr. Palatta threat t wer I to interject or other way, I would be removed from the hearing and Katie r ceed alone. I wanted to protest against Dr. P latta's unfair trictions, ever, ' e fear or s a fut sh ld be with a suppo in the . t eve the most basic steps towards conducting a er co pliant ith substantial justice. Katie's reque ts r do t and contact information for witnesses w re su marily ied. Katie was not even provided with a means for contacting Dr. t coordinator of her PMV hours who left NYU in A gust of 2009. request that Dr. Hershkowitz and Mr. Cornejo be ord red t hearing were denied even though their false statements were the is t tie. Properly defending Katie against the rges t a t ac to witne ses and documents was an t . 41 - Katie confirms t i acc t i er affi it. R. 73-76. Thus, in i t e Petition without a hearing, the Supreme Court ignored s veral t r cedural violations co mitted by Respondent in its zeal to dismiss Katie f ir ring under its own rules. Accordingly, there was no fair t ity to question witne ses and no consideration of the supporting evidence, f hich were required by the Code of Ethics and the Peer Review Board l. " , a ten her hearin in October, 2 09, she was only as an employee of her a cuser, was not permitted to ti itnesses and was hamstrung in his ability to adequately repr sent her by the restrictive Peer Review Board "Proposal" thrust upon Katie in an arbitrary effort to streamline her expulsion. This process falls well below any acceptable standard of due process. In Mary M v. Clark, 118 Misc.2d 98, 100 (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." (emphasis added) (citing Wolff v. McDonnell, 418 U.S. 539 (1974)). As was the case in Mary M. Katie was not allowed to call witnesses or present documentary evidence. Permitting Katie to call these witnesses and providing her with the documentary evidence she requested would have allowed Katie to establish that she did not fail to meet a requirement for graduating from NYU in May 2009. Perhaps the most shocking and transparent demonstration of the arbitrary and capricious nature of the process Respondent employed in Katie’s case occurred on October 13, 2009. While the PRB board was supposed to have a decision prepared within one week of the hearing, several weeks passed without any word. Katie’s faculty advisor, Dr. Ploumis, a 20-year veteran of the Respondent’s staff, approached Dr. Palatta for an update on the PRB board’s decision. Dr. Palatta 25 rest Revie Board "Proposal" thrust upon Katie in an arbitrary i n. This proce s falls well below any a ceptable f In v. Clark, , 100 (N. . Sup. Ct., t , 1983), the court reversed the college's finding that a student had expunged a l references to it from her academic record. In s doing, court held: "minimal procedural due process requires that petitioner be given f the charges against her, (2) a written statement of the fact t the evidence relied on and the reasons for the action taken, and (3) an t ity t witn and present documentary evidence." (citing ljfv , . 4) . As was the case in t a lowed to call witne ses or present documentary evidence. c ll these witnesse and providing her with the documentary requested would have allowed Katie to establish that she id not fail r ire ent for graduating from NYU in May 2 09. st shocking and transparent demonstration of the arbitrary t re of the proce s Respondent employed in Katie's case occurred r 1 , . While the PRB board wa supposed to have a decision ithin one w ek of the hearing, several weeks passed without any word. ' l isor, Dr. Ploumis, a 20-year veteran of the Respondent' staff, tt f r an update on the PRB board's decision. Dr. P latta explained to Dr. Ploumis that he could not comment on the deliberations, but made it plain that no matter what the PRB decided, the Deans could send the decision back until they get the result they wanted. R. 181 ¶ 14. This oversight ability is not documented in the Code of Ethics or the "Peer Review Board Proposal." Essentially, it made the PRB board a sham and allowed the Deans total control over any decision in contradiction to Respondent’s established procedures. Tedeschi, 49 N.Y.2d at 661. In fact, one reasonable explanation for the delay in the ruling of the PRB board was that it may have been due to interference from Respondent’s administrators who sent the ruling back for reconsideration. R. 181. The Court of Appeals has declared that "as a matter of essential fairness in the somewhat one-sided relationship between the institution and the individual, . 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 v. Wagner College, 49 N.Y.2d 652, 660, 404 N.E.2d 1302, 1306 (1980). Therefore, a private university has an "obligation to follow its own rules [under Article 78] without reference to contract law." Id. Similarly, whether a private university’s disciplinary determinations concerning a student were "arbitrary or capricious" under Article 78 depends on "whether the university substantially adhered to its own published rules and guidelines for IM e plained to Dr. Ploumis that he could not co ment on the deliberations, but made it lain that no ma ter wha the PRB decided, the Deans could send th decision R. 181 ~ 14. This oversight ability is t docu ented in the Code of Ethics or the "Peer Review Board Pr posal." tially, it made the PRB board a sham and allowed the Deans total control r decision in contradiction to Respondent's established procedures. i, . . at 661. In fact, one reasonabl expl nation for the delay in r ling of the PRB board was that it may have been due to int ference from ent' ad inistrators who sent the ruling back fo reconsideration. R. 8I. rt of ppeals has declared that "as a matter of essential fairness in hat one-sided relationship between the insti ution and the individual, ... iversity has adopted a rule or guidelin establishing the procedure to be i r lation to suspension or expulsion that procedure must be t ti ll served." ag er Co lege, , , 1 , 1306 (1980). Therefore, a private university has an "obligation to r les [under Article 78] without r f rence to contract law." . t r a private university's disciplinary d terminations concer ing a r or capricious" under Article 78 depends on "whether the ti ll adhered to its own published rules and guidelines for 26 disciplinary proceedings... ." Warner v. Elmira College 59 A.D.3d 909,91o, 873 N.Y.S.2d 381, 382 (3d Dep’t 2009) (emphasis added). In this case, the Peer Review Board procedures cited by the Supreme Court were not "published;" instead, Respondent’s Website published a Code of Ethics and Professionalism. R. 68-70, 105-112. The Court found that: "Before NYU made its final determination to dismiss Ms. Kickertz, it afforded her a hearing before her peers ... pursuant to the rules then in effect." R. 7. But this finding that the PRB rules selected by Respondent were in effect at the time of Katie’s expulsion was error as it was contradicted by Respondent’s reply brief, as well as Katie’s brief. Respondent’s reply brief admitted that "the rules governing the Peer Review Board were initially labeled a ’Proposal’ they were also marked ’FINAL’." R. 618 (citing R. 260-267; R. 402-409; R. 306-317. As Dr. Ploumis stated in an affidavit: 7. The Code of Ethics can only be amended by the Council on Ethics and Professionalism. Unilateral emails sent by Dr. Palatta or Dean Bertolarni are not a proper way to institute an entirely new code governing discipline under the code of ethics. (Ex. A) To amend the rules Dean Bertolami must present the proposed changes and a vote must be taken. To my knowledge, this procedure was not undertaken before the PRB trial program was instituted. (Ex. B) 8. NYU’s web pages list both the Code of Ethics and PRB rules as viable methods to govern hearings. The Code of Ethics has governed student behavior since Katie’s admission to NYU. The administration’s attempt to change the rules was not well publicized, nor did it conform to the required school procedures for rule changes. 27 i s .. Warner v. Elmira Coll 3. 910, 873 . 381, 82 (3d Dep't 2009) (emphasis a ded). , t e Peer Review Board procedures cited by the Supreme Court t lished;" instead, Respondent's Website published a Code of Ethics R. 68-70,105-112. The Court found that: "Before NYU it final determination to dismiss Ms. Kickertz, it affor ed her a hearing . . pursuant to the rules then in e fect." R. 7. But this finding that r l selected by Respondent were in effect a the time of Katie's error as it was contradicted by Respondent's reply brief, as well as i ' Respondent's reply brief admitted that "the rules gover ing the Peer r r initia ly labeled a 'Proposal' they were also marked 'FINAL'." (citing R. 260-267; R. 402-409; R. 306-317. As Dr. Ploumis stated in an f t ca only be amended by the Council on Ethics i alis . Unilateral email sent by Dr. P l tta or Dean Bertolami a proper way to ins itute an entirely new code governing d sc pline f t i (Ex. A) To amend the rules Dean Bertolami must r changes and a vote must be taken. To my knowledge, is pr re not undertaken before the PRB trial program was ( . ) 's li bot the Code of Ethics and PRB rules as le thods h s. The Code of Ethics has governed nt ior e 's i sion . The administration' the rules was not well publicized, nor id it conform to the school procedures for rule changes. 9. NYU’s decision to proceed under the PRB rules was, at best, incorrect and at worst a self serving means to give the appearance of a fair hearing to Katie’s preordained expulsion. The PRB rules drastically limit a student’s rights compared to the rights granted under the code of ethics. The code of ethics should have been applied in Katie’s case as it was the standard she agreed to upon her admission to NYU as well as the rules that had governed her entire tenure at NYU. Substituting the PRB rules mere months before her graduation with almost no notice is a travesty of justice. R. 411-412. In her opposition to Respondent’s motion to dismiss, Katie showed that there was no evidence that she ever received this "Proposal," and also noted that the Code of Ethics and Professionalism, by its very terms, prohibited its own replacement by the Dean, let alone its replacement with a "Proposal." R.260-267. 1° It is patently an issue of fact whether a reasonable student would view a "Proposal," whether or not the initial or "FINAL" proposal, as equivalent to and as superseding a "Code of Ethics." It was reversible error for the Supreme Court to decide such a critical issue of fact without the benefit of discovery and without a hearing. See, e.g., ABNAmro Bank N. V. v. MBIA Inc., 26 Misc.3d 1223(A) (Table), 2010 WL 549074, at *11 (N.Y. Sup. Ct., N.Y. Cty., Feb. 17, 2010) (in denying motion to dismiss complaint, pursuant to CPLR 3211(a)(1), (2) and (7), ’° The Code of Ethics and Professionalism stated, instead, that a Council on Ethics and Professionalism comprised of at least "nine (9) faculty members" shall review the Code annually, consider only those changes suggested to it in writing, and that the changes must be "reviewed by the full Council and adopted if appropriate." R.260-267. Any changes must then be sent to the Deans of all the Colleges affected, and the Dean of the College of Dentistry must submit them to the "Executive Management Council for its consideration within one academic semester." R. 267. [Ibid. at 8]. No evidence was submitted by Respondent that any of these required procedures were complied with. R. 302-317. 28 . ' decision to proc ed under the PRB rules was, at best, incorrect at orst a self serving means to give the appe rance of fair hearing to ' lsion. The PR rules drasticall li it a student' r to the rights granted under the code of ethics. The code of ap li i atie' cas as it was the standard she t upon her admi sion to NYU as well as the rules that had governed t t Substituting the PRB rules mere months before raduation with almost no notice is a travesty of justice. . . sition to Respondent's motion to dismiss, Katie showed that evidence that she eve received this "Proposal," and also noted that f thics and Profe sionalism, by its very terms, proh bited its own e t by the Dean, let alone its replacement with a "Proposal." R.260-267.10 tl a issue of fact whether a reasonable student would view a l," hether or not the in tial or "FINAL" proposal, as equivalent to and as ode of Ethics." It was r versible er or for the Supr me Court to a critical i sue o fact without the benefit of discovery and without a . ., BN Amra Bank N. V. v. MBIA Inc., 1223( ) 549074, at ( . . Su . Ct., N.Y. Cty., Feb. 17,2010) (in t dis iss complaint, pursuan to CPLR 32 1(a)(1), (2) and (7), 10 The Code of Ethics and Professionalism s ated, instead, th t a Council on Ethics and rised of at least "nine (9) faculty members" shall review the Code i er only those changes su gested to t in writing, and that the changes must be t if a r riate." R.260-267. Any changes must then eans of a l the Colleges affected, and the Dean of the Coll ge of Dentistry must t " xecutive Management Council for its consideration w thin one academic R. 267. [Ibid. at 8]. No evidence was submitted by Respondent th t any of th se lied ith. R. 302-317. court held: "It may well be, following limited discovery [an Article 78 claim will fail]. However, at this stage of the proceedings, that determination cannot be made without further discovery and affirmation."). In reinstating certain claims for damages in MBIA, the Court of Appeals noted with approval that: "The article 78 proceeding remains pending while the parties conduct discovery." ABNAMRO Bank, N. V. vMBIA Inc., 17 N.Y.3d 208, 220, 952 N.E.2d 463, 469 (2011): Since the initial administrative hearings began in this matter, no less than five different sets of rules have come to light governing discipline at Respondent’s College of Dentistry. First, there is The New York University College of Dentistry Code of Ethics and Professional Conduct ("The Code") which Katie was presented with and relied upon during her tenure as a student of NYU and argues should be the rules applied to her situation. R. 105-112, 155-156. It is undisputed that, for the vast majority of the Katie’s four years at NYU Dental School, the applicable disciplinary rules were detailed in the Code. Under the rules established by the Code, a student facing expulsion is guaranteed, among other things, a right to counsel (including external legal counsel), a hearing "conducted in a manner to achieve substantial justice" heard by a quorum of nine members of the ethics council, which includes at least nine faculty members, and an opportunity to confront any witnesses presented against them. R. 105-112. At first, Respondent asserted its entitlement to ignore the Code entirely and expel her without a hearing IM "It ay we l be, following limited discovery [an Article 78 claim will r, at this stage of the proceedings, that d termination cannot be made t iscovery and a firmation."). In reins ating certain claims for i / , rt of Appeals noted with a proval that: "The article 78 i re ains pending while the parties conduct discovery." AMRO . MBIA Inc., 17 08, 0, . .2d 463,469 (2011).- i itial administrative hearings began in this matter, no less than t sets of rules have come to light governing discipline at Respondent's f tistry. First, there is The New York University Coll ge of Dentistry f i and Profe sional Conduct ("The Code") which Katie was pr sented r li upon during her tenure as a student of NYU and argue should be lie t her situation. R. 105-112,1 5-156. It is undisputed that, for t j rity of the Katie's four years at NYU Dental School, the applicable r les ere detailed in the Code. Under the rules established by the t ent facing expUlsion is guarant ed, among other things, a right to l i g external legal counsel), a hearing "conducted in a manner to sta tial justice" heard by a quorum of ine members of th ethics ich includes at least nine faculty members, and an opportunity to t resented against them. R. 105-112. At first, Respondent it entitlement to ignore the Cod entirely and expel her without a hearing 29 of any kind. R. 113, 167. Respondent then argued that it could proceed under the Peer Review Board "Proposal." R. 302; 279-280. Next, Respondent contended that it could disregard even the relatively scanty (compared to the Code) provisions of the Peer Review Board "Proposal." R. 122-151, 157-158." Finally, in 2010 Respondent has, subsequent to Katie’s expulsion, issued a "Code" that resembles the Peer Review Board "Proposal," but which is no longer labeled a "Proposal." R. 427-434. 2. Respondent’s Expulsion Decree Was Arbitrary and Irrational Because It Was Contradicted by the Record Evidence Before the Peer Review Board Under Article 78, the "court must then review whether the university’s determination is rationally based upon the evidence; otherwise the determination is arbitrary and capricious." Warner v. Elmira College, 59 A.D.3d at 910, 873 N.Y.S.2d at 383. Courts have held that a university’s determination was "arbitrary and capricious" when it was "not rationally based upon, and was contradicted by, the evidence." Id. At present, the Supreme Court applied the wrong standard of review in inquiring only into whether there was substantial compliance with the Peer Review Board Proposal. Thus, the court improperly limited its review of Respondent’s conduct to whether Respondent proceeded under their rules. In contrast, New In that document, Respondent stated an answer to Katie’s request that she be provided certain materials from the NYTJCD Intranet as well as her email. 30 R. 13, 167. Respondent then argued tha it could proceed under the r osal." R. 302; 279-280. Next, Respondent conten ed l disregard even the relatively scanty (compared to the Code) provisions r " roposal." R. 122-151, . 11 , subsequent to Katie's expulsion, issued a "Code" that r sembles ie oard "Proposal," but which is no longer lab led a "Pr posal." 4 . nt' p lsion Decr e Was Arbitrary and Irrational Because ntr icted by the Record Evidence Before the Peer Review rti le 78, the "court mus then review whether the university's ti is rationa ly based upon th evidence; otherwise the determination is capricious." i o lege, 59 t , 87 t . Courts have held that a university's d termination was "arbitrary i i s" hen it was "not rationally based upon, and was contradicted by, i e." t, t Supreme Court a plied the wrong standard of review in l int hether there was substantial compliance with the Peer Review Thus, the court improperly limited its review of Respondent's ther espondent proc eded under thei rules. In contrast, New 11 t, Respondent stated an answer to Katie's request that she be provided certain i ls fro the NYU Intranet as well as her email. York courts have consistently held that the final decisions of private universities in matters of student discipline that are unrelated to academic achievement are subject to judicial scrutiny: Suspension or expulsion for causes unrelated to academic achievement, however, involves determinations quite closely akin to the day-to-day work of the judiciary. Recognizing the present day importance of higher education to many, if not most, employment opportunities, the courts have, therefore, looked more closely at the actions of educational institutions in such matters. Tedeschi, 49 N.Y.2d at 658. Katie’s affidavit in support of her Petition identified multiple cases in which the Peer Review Board’s charges were not supported by the underlying evidence. While the PRB students’ report claims that Katie "knew that she was short in her PMV requirement because she was notified of the deficiency by HM in mid April, in the end of April, and in mid May," and "she was getting regular notices about her deficiency;" Katie’s affidavit rebutted this claim, stating that: (1) Dr. Meeker did not notify me at any time prior to May 26, 2009 that I was short of PMV. The email he sent to me at 9:54 PM on May 25, 2009 (the day before graduation) stated that he was uncertain about my status for graduation but did not know why and in fact stated he could be wrong (see Exhibit 4). Dr. Meeker’s own email contradicts what he told the PRB. I was never given any notice of a deficiency. If Dr. Meeker had actually sent notifications, they should be evident in his emails. I have requested copies of any such documents from the university three times and they have not been provided. Ivan Comejo also stated that he was not aware of any deficiency until the morning of graduation. 31 r ork courts have consistently held that the final decisions of private universities in atters of student discipline that are unrelated to cademi achiev ment are subject t j icial scrutiny: spension or exp ion fo causes unrelated to academic ho e er, involves determinations quite closely akin to t day-t of the judiciary. Recognizing the present day t ce i ed t many, if not most, employment ti s, hav , therefore, looked more closely at the f educational institutions in such matters. i, . . d at tie' ffidavit in support of her Pe tion ident fied multiple ca es in which r e ie Board's charges were not su ported by the underlying evidence. students' report claims that Katie "knew that she was short in her ire ent because she was notified of the def ciency by HM in mid April, f ril, and in mid May," and "she was getting regular notices about ; atie's a fidavit rebutted this claim, s ating that: ) Dr. Me ker id not notify me at any time prior to May 26, 2009 that I The email he sent to me at , before graduation) stated that he was uncertain about raduation but did not know why and in fact s ated he ibit 4). Dr. M eker's own email contradicts t . I was never given any notice of a deficiency. . actua ly sent notifications, they should b evident i i I have requested copies of any such documents from the a they have not been provided. Ivan Cornejo l as not aware of any deficiency until the morning 31 R. 70-7 1. Moreover, the students’ report stated that Katie "did not treat any patient in May." In fact, she treated an Invisalign patient in the orthodontic clinic, as well as "multiple patients who Dr. Meeker ordered me to transfer to other third-year students." Id. Next, the report stated that "KK was supposed to meet HM 3-4 weeks before graduation to check graduation requirements." Id. Yet Katie’s affidavit stated that "there was never any mention of such a meeting being needed." Id. Similarly, the report charged that Katie "agreed that she would continue patient care to complete the requirement." Id. Katie’s affidavit shows, to the contrary, that she "had no patients to call," she "never said [she] was going to call patients," and Drs." Hershkowitz and Meeker had just finished telling [her] that [she] could not have any of my former patients back and they acknowledged that [she] had no patients to call." Id. Respondent’s finding that Katie agreed to treat further patients to pay off the new PMV goals they announced to her was not rationally based on the evidence. In fact, Respondent’s faculty member Dr. David Hershkowitz and Respondent’s clinic director Ivan Cornejo made inaccurate statements to the student panel. Hershkowitz told the panel that he left Katie with Dr. Meeker "so that they could place patients on her roster and make appointments with patients to continue care and help her attain her goal." R. 71 ¶ 18). In fact, "Both Meeker and Hershkowitz acknowledged that there were no patients on [Katie’s] roster and stated that [her] 32 1. r, the students' report stated that Katie " id not treat any patient In fact, she treated an Invisalign patient in the orth dontic clinic, as well l atients who Dr. M eker ordered me to transfer t other third-year report stated that "KK wa su posed to meet HM 3-4 raduation to check graduation requirements." i ' t t t t "there was never any mention of such a meeting being . t report charged that Katie "agreed that she would ti t care to complete the requirement." i ' i it s , to t at she "had no patients to call," she "never said [she] was going to , and rs. " Hershkowitz and Me ker had just finished telling [her] l not have any of my former patients back and they acknowledged n patients to ca l." ent' finding that Katie agr ed to treat further patients to pay off the ls they announced to her was not rationally based on th evidence. ent' f lt e ber Dr. David Hershkowitz and Respondent's irector Ivan Cornejo made inaccurate s atemen s to the student panel. it t ld the panel that he left Katie with Dr. Meeker "so that they could ti ts on her roster and make a pointments with patients to continue care r l." R. 71 ~ 18). In fact, "Both Me ker and Hershkowitz that there were no patients on [Katie's] roster and stated that [her] previous patients would NOT be returned to [her] roster." Id. Instead, they told her "to go to the clinic and obtain the money." Id. Since they refused to give her "any patients to see ... the impression when [she] left was that [she] simply needed to come up with $2007 so they could get rid of me." Id. The PRB report states that Ivan Comejo told the students that he had not spoken to Katie between June 1st and June 16th, 2009. Id. Actually, Mr. Cornejo called Katie into his office to talk to her, and on that occasion Katie told him that Dr. Meeker was harassing her, and Mr. Comejo stated that Meeker was an idiot who should have been fired. R. 71. 3. The Drastic Punishment of Expulsion Was Arbitrary Because It Was Disproportionate to Katie’s Alleged Offense, and Is Shocking to the Conscience In light of the facts and circumstances surrounding Katie’s dismissal, it is respectfully submitted that the drastic sanction of expulsion with no chance for re- admittance was disproportionate to her transgression. A reviewing court may hold that, even if an agency substantially complied with its own disciplinary procedures, the punishment assessed can, in itself, be found arbitrary if it is not proportional to the conduct charged: [A] result is shocking to one’s sense of fairness if the sanction imposed is so grave in its impact on the individual subjected to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual, or to the harm or risk of harm to the 33 r i be returned to [her] roster." I . I t , t t l r t t t li i nd obtain the money." I . i t t give her . the impre sion when [she] left was that [she] simply ne ed t so they could get rid of me." . E rt states rn j t ld the students that he had not spoken to Katie between June t a t , . ornejo ca led Katie into his office to n that occasion Katie told him that Dr. Me ker was harassing her, rn j stated that Meeker was an idiot who should have been fired. R. . . ent of itrary Because It Was rtionate to Katie's A lege ff , Is Shocking to the i ce f facts and circumstances surrounding Katie's dismissal, t is tfully submi ted tha the drastic sanction of expulsion with no chance for re- s disproportionate to her transgression. A reviewing court may hold en if an agency substantially complied with its own disciplinary procedures, ish ent a se sed can, in itself, be found arbit ary f t is not pr portional to t conduct charged: ] re is shockin to one's sense o fairne s if the sanction i is so grave in its impact on the individual subjected to it that it is disproportionat to the misconduct, incompetence, failure or t e t indivi , r to the harm o risk of harm to the 33 agency or institution, or to the public generally visited or threatened by the derelictions of the individuals. 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). It is not disputed that Respondent was not harmed financially by Katie’s alleged misconduct because she paid the $2,050.00 out of pocket in satisfaction of monies allegedly owed to Respondent for treating patients in the clinic. R. 66-67. Respondent’s unsupported assertions to the contrary notwithstanding, Katie did not alter any patient records to accomplish this task, nor did she attempt to defraud Respondent. Instead, Katie took this action based upon her erroneous belief that she was acting under the instruction of program faculty who informed her that she had to produce the outstanding monies or she would not be allowed to graduate. R. 70-7 1. Respondent’s agents had informed Katie that Respondent would not provide her with any patients or assistance in acquiring the finds allegedly owed and left the burden on her to produce the funds. After her meeting Katie walked less than 30 [or 3?] feet to the desk of the program secretary and paid the balance out of pocket. R. 71. She obviously would not have acted in such a manner if she intended to defraud or conceal her conduct from Respondent. instit ti or to the public genera ly visited or threatened t derelictions of the individuals. tt of Pe l v. Board of Educ. of Union Free School Dis!. No. I of Towns f c rsdale & Mamaroneck, Westchester County, . .2d 222, 28, 313 . . d 32 (1974). i t isputed that Respondent was not harmed financially by tie' lle e isconduct because she paid the $2,05 . 0 out of pocket in ti f onies allegedly owed to Respondent fo treating patients in R. 66-67. Respondent's unsu ported assertions to the cont ary t i , Katie did not alter any patient records to accomplis this a te pt to defraud Respondent. Instead, Katie took this er e roneous belief that she was acting under the f ra faculty who informed her that she had to produce the r she would not be allowed to graduate. R. 70-71. t' t ad informed Katie that Respondent would not provide t r assistance in acquiring the finds allegedly owed and t produce the funds. After her meeting Katie walked l feet to the desk of the program secretary and paid the t t. R. 71. She obviously would not have acted in such a t ed to defraud or conceal her conduct from Respondent. 34 Similarly, when Katie was confronted about this action, she did not attempt to lie or deceive the program regarding her actions. In fact, she freely admitted to paying the monies out of pocket because she believed that this was how the faculty expected her to pay the balance. The consequences of expulsion for this relatively minor transgression are "shocking to one’s sense of fairness." Matter of Fell, 34 NY 2d at 228. a. The Sanction Itself Was Shocking and Excessive in Light of the Charges In holding that Katie’s expulsion does not shock the conscious, the trial court noted that "the result [of the sanction] is indeed quite awful." R. 13. This characterization of the sanction imposed upon Katie is evidence of an excessive sanction. The Appellate Division has routinely held that separation from an academic program is a shocking and excessive remedy for a single day’s alleged misconduct. See, e.g., Rindos v. Board of Educ. of Longwood Cent. School Dist., 20 A.D.3d 572, 573 (2d Dep’t 2005); see also Schnaars v. Copiague Union Free School Dist., 275 A.D.2d 462, (2d Dept. 2000) ("We agree with the Supreme Court that termination under the circumstances of this case was so disproportionate to the offense as to be shocking to one’s sense of fairness." (citation omitted) (citing Matter of Fell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233 (1974)); Haynes v. Board of Ed., Cold Springs Harbor Central School Dist., 57 A.D.2d 35 atie was confronted abou this action, she id not i the progra regarding her actions. In fact, she t t paying the monies out of pocket because she b li ved that f lt expected her to pay the balance. The consequences f r t is relatively minor transgression are "shocking to one's f ir ss." f P ll, t . Itself as Shocking and Exce sive in Light of the tie's expulsion does not shock the conscious, the trial t t "the result f } . . 13. This i tion of the sanction imposed upon Katie is evidence of an excessive The A pellate Division has routinely held that sep ration from an is a shocking and exce sive remedy for a single day's alleged . i dos v. Board of Educ. of Longwood Cent. School Dist., . 't i Unio ree l i t., 275 , (2d ept. 2000) ("We agr e with the Supreme Court i ation under the circumstances of this case was so dispr portionate o the t be shocking to one's sense o fairness." (ci ation omitted) (citing f Pell v. Board of Educ. of Union Free School Dist. No.1 of Towns of a aroneck, Westchester County, 2, 233 (1974 ); ard of Ed. , Cold Springs Harbor Central School Dist., 57 959, 395 N.Y.S.2d 76 (2d Dept. 1977) (court used Article 78 to reduce penalty from dismissal to a fine because: "Under all of the circumstances presented by the record in this proceeding, and in the light of petitioner’s record, the penalty of dismissal is shocking to one’s sense of fairness and constitutes an abuse of discretion"). Katie was informed that she did not qualify to receive her degree, quite literally, on the eve of graduation. To get to that moment, Katie invested four years of her life--the entire duration of the DDS program course of study--at NYU. During this time, Katie met every academic requirement assessed by NYU and, through her hard work, received impressive grades including an A+ in ethics and a faculty award. R. 64. The expulsion effectively strips four entire years from Katie’s life and leaves her with nothing to show for the time that she invested. Id. at p. 22. In an effort to fulfill her dream of becoming a dentist, over four years of study, Katie has paid hundreds of thousands of dollars in tuition and fees to Respondent and dedicated thousands of hours to her chosen profession. Id. at p. 22. Her subsequent expulsion essentially represents a huge monetary sanction and forfeiture of the funds she invested with NYU. R. 179-180 ¶ 10-11; 182 ¶ 19). R. 99-101, 161-176. Further, during her third and fourth years at NYU, Katie spent hours upon hours working for NYU dental school in its clinic treating patients. 36 9, . . .2d 76 (2d Dept. 19 7) (court used Article 78 to reduce penalty is issal to a fine because: "Under all of the circumstances pres nted by the i t i proceeding, and in the light of pe tioner's record, the penalty of i shocking to one's sense of fairne s and cons itutes an abuse of i ). informed that she did not qualify to receive her degree, quite t e e of graduation. To get to that moment, Katie inv sted four f er life -the entire duration of the DS program course of study--at NYU. t i ti e, Katie met every academic requirement as essed by NYU and, r ork, received impre sive grades including an A + in ethics and a R. 4. Th expulsion effectively strips four entire years from ' l leaves her with nothing to show for the time that she invested. . . f l ill er drea of becoming a dentist, over four years of paid hundreds of thousands of dollars in tuition and fees to dedicated thousands of hours to her chosen profession. . er subsequent expulsion essentially represents a huge monetary sanction and it i t it . R. 179-180 ~ 10-1 ; 182 ~ 19). R. 16 - Further, during her third and fourth years at NYU, Katie spent r i g for NYU dental sch ol in its clinic treating patients. During these clinical hours, Katie earned approximately $40,000, all of which went directly to Respondent. Id. at pp. 20-2 1. Katie’s expulsion means that all of those hours earning Respondent’s additional profits gained her nothing and could have been spent in pursuit of her own career goals. The harm to Katie is not limited to events that occurred in the past, as the expulsion has greatly damaged her future prospects. A plethora of Article 78 cases make clear that the devastating economic impact of losing one’s livelihood outweighs the impact of misconduct on a profession for which one is academically qualified. 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" and "without regard to the facts") (citing Matter of Pell, 34 N.Y.2d at 231, 356 N.Y.S.2d 833); 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, 7N.Y.3d 716, 826 N.Y.S.2d 181, 859 N.E.2d 921, 37 t se clinical hours, Katie earned a proximately $4 , 00, all of which went t espondent. pp. - . atie's expulsion means that all of those r i espondent's a ditional profits gained her nothing and could have t in pursuit of her own car er goals. t atie is not limited to events that occurred in the past, as the reatly da aged her future prospects. A plethora of Article 78 cases l r t t t e devastating economic impact of losing one's livelihood t i pact of misconduct on a profession for which one is cademically costa v. New York City Dept. of Educ., , 878 (I t ep't 2009) (reversing Supreme Court's dismissal of Article 78 f teacher convicted of serious crimes as allege danger to children or the s she was not "an unreasonable danger to those involved," ision denying her employment "without sound ba is in reason" and t r r t the facts") (citing Matter ofPell, 34 N.Y.2d at 231,356 83 ); c a fer, , (2d ' r ersing penalty of dismi sal of sch ol employee under Article 78 titioner had no prior disciplinary problems" and th re was no proof s of the respondent were adversely affected by the petitioner's ); v. Stout, ( ep't l t , . .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). The courts are particularly concerned with dismissal as a sanction where, as here, the hearing refuses to consider all the evidence requested by the petitioner. See McCrum v. Board of Ed. of New York City School Dist., 58 A.D.2d 864, 396 N.Y.S.2d 691 (2d Dep’t 1977). The termination of a university administrator was vacated where an unreasonable procedure was used. See Starishevsky v. Hofstra University, 161 Misc.2d 137, 148, 612 N.Y.S.2d 794 (Sup. Ct. 1994) ("The arbitrary or capricious test has been said to chiefly relate to whether a particular action should have been taken, is justified or is without a foundation in fact or without a sound basis in reason") (citing Matter of Pell, 34 N.Y.2d 222). b. Katie’s Punishment Was Disproportionate Compared to Punishments Imposed Upon Other Students Katie’s advisor Dr. Ploumis, based upon his 20 years with Respondent, states that Katie’s punishment is far more drastic then punishments handed down to other students who committed similar transgressions. Dr. Ploumis has submitted an affidavit stating that in his opinion, "Katie’s punishment for paying some clinical fees on her credit card was excessive and disproportionate compared to more serious ethical and professional breaches by male students in recent years." R. 179 ¶ 10. He states that the annual Report of the Council on Ethics and Professionalism New York University College of Dentistry for 2008-2009 confirms that several students who submitted inaccurate paperwork to the group 38 odified by , 8 . .S.2d 73, 1239 (2006). ar particularly concerned with dismissal as a sanction where, as here, refuses to consider all the evidence requested by the petitioner. v. oard o/ d. o/New York City Sch ol Dist., 864, 396 ( ep't 1977). The termination ofa university adm nistrator was ere an unreasonable procedure was used. t rishevsky v. Hofstra 137, 148,612 N.Y.S.2d 794 (Sup. Ct. 1994) ("The r capricious test has b en said to chiefly relate to whether a particular e been taken, is justified or is without a foundation in fact or basis in reason") (citing / l, . 222). ' ish ent as Disproportionate Compared to t I sed Upon Other Students ' is r r. Ploumis, based upon his 20 years with Respondent, tie' punishment is far more drastic then punishments hande down t ts ho commi ted similar transgressions. Dr. Ploumis has submitted stating that in his opinion, "Katie's punishment for paying some f on her credit card was excessive an dispr portionate compared to ri s ethical and profe sional breaches by male students in recent years." ~ 1 He s ates that the annual Report of the Council on Ethics and lis ew York University College of Dentistry for 2008-2009 t t several students who submitted inaccurate aperwork o the group practice director, cheated on exams, or plagiarizing DDS degree assignments were issued reprimands or warnings, or in the most extreme cases were allowed to repeat a semester or year of education. See id. at 3-4; see also Matter of Ryan v. Hofstra Univ., 67 Misc.2d 651, 662 (Sup. Ct., Nassau Country, 1971) (noting that expulsion is a severe and final disciplinary option and that the school had the option of other, more lenient punishments before expelling a student). Here, the disproportion between these other punishment and Katie’s punishment is striking. C. The Precedents Cited in the Court Below Are Distinguishable In justification of its holding that Katie’s expulsion does not "shock the judicial conscious," the Supreme Court cited several cases provided by the Respondent. Most notably, the court relies on Flores v. New York University, 79 A.D.3d 502 (1st Dept. 2010). The Flores matter involved the expulsion of a habitual cheater for academic dishonesty (cheating on an examination). In Flores, the Appellate Division held that the expulsion of Mr. Flores did not shock the conscious because the punishment was justified based upon his conduct. Id. at 502. However, as Katie has repeatedly noted during the underlying action, and as acknowledged by the Court in its own decision (R. 13.) the facts in Flores are plainly distinguishable from the instant matter In the instant matter, Katie was expelled for one instance of misconduct and had no history of academic dishonesty. Moreover, while Mr. Flores’ conduct was clearly academic in nature 39 irector, cheated on exams, or plagiar zing DS degree assignments were i s or warnings, or in the most extreme ca es w re allowed to se ester or year of education. i tter of Ryan v. Univ., . 651, 662 (Sup. Ct., Na sau Country, 1971) (noting that i a severe and final disciplinary option and that the school had the f t , ore lenient punishments before expelling a student). Here, the et een these other punishment and Katie's punishment i str king. c dents Cited in the Court Below Are Distinguishable tion of its holding that Katie's expulsion does not "shock the i l conscious," the Supreme Court cited several ca es provi ed by the Most notably, the court relies on v. e York University, t . 2010). The i volved the expulsion of a eater for academic dishonesty (cheating on an examination). In l t ivision held that the expulsion of Mr. Flores id not shock the se the punishment was justified based upon his conduct. However, as Katie has repeatedly note during the underlying action, and as by the Court in its own decision (R. 13.) the facts in i ti guishable from the instant matter In the instant matter, Katie was f e instance of misconduct and had no history of academic Moreover, while Mr. Flores' conduct was clearly cademic i nature and reoccurring, (cheating on an exam in a class), Katie’s conduct was not academic as it did not relate to the curriculum outlined by the Respondent, and she had an otherwise flawless disciplinary record. R. 183-249. Moreover, Flores was decided in accordance with a "Code of Ethics." R. 299. Exhibit B to the Palatta Affidavit (R. 306-317.) is, on its face, a "Proposal." This is in stark contrast to a "Code." In Flores, the Council on Ethics and Professionalism heard the case of Mr. Flores, which is what Katie sought in her appeal within Respondent (R. 161-173.) and seeks in her Petition (R. 32-3 5, 39.) Katie agreed that the Code applied in Flores to a dispute arising in the Spring 2009 semester was the correct set of rules, rather than the "Proposal." The affidavit of Professor Ploumis also establishes that the Code should have been applied, which nine faculty members protecting students’ due process interests. See R. 180-181 ¶ 13. The other cases cited by the trial court where punishments were not held to "shock the conscience" involved students who engaged in far more severe - and possibly criminal - conduct than Katie was charged with. See Quwrcia v. New York Univ., 41 A.D.3d 295 (1st Dep’t 2007) (student suspended for drug possession); Ebert v. Yeshiva University, 28 A.D.3d 315 (1st Dep’t 2006) (student expelled for physically assaulting another student); Fernandez v. Columbia Univ., 16 A.D.3d 227 (1st Dep’t 2005) (student suspended for sending harassing MI and reoccu ring, (cheating on an exam in a class), Katie's conduct was not acade ic as it did not relate to the curric lum outlined by the Respondent, and she a an otherwise flawle s disciplinary record. R. 183-249. re er, l decided in accordance with a "Code of Ethics." R. . Exhibit B to the P latta Affidavit (R. 306-317.) is, on its face, a "Pr posal." i is in stark contrast to a "Code." In l t ouncil on Ethics and f ssionalism heard the case of Mr. Flores, which is what Katie sought in her l ithin Respondent (R. 161-173.) and seeks in her Petition (R. 32-3 . agreed that the Code a plied in ispute arising in the Spring 2 09 t correct set of rules, rather than the "Proposal." The affidavit of r lou is also establishes tha the Code should have been applied, which e bers protecting students' due process int re ts. . ~ . s s cited by the trial court where punishments w re not held to science" involved students who engaged in far more sev re - and ri inal- conduct than Katie was charged with. i . iv., 1 t ep't 2007) (student suspended for drug i ; . i University, . . t 't ) (student e l l assaulting another student); . l i niv., 16 A. .3d ls ' (student suspended for sending hara sing 40 communications to other students). Importantly, two of the three cases cited involved punishments less severe than expulsion for conduct much more serious than the conduct alleged against Katie. Quwrcia v. New York Univ., 41 A.D.3d 295 (one-year suspension); Fernandez, 16 A.D.3d at 227-28 (one-year suspension) d. Conclusion In sum, Katie had been a model student at NYU, with a flawless disciplinary record. In fact, she received an award commending her on her academic performance. Expelling Katie for paying a mere $1,907.00 in her final billing total, which, after being admonished for paying the difference herself, she earned through her work at the clinic, has provided a level of discipline disproportionate to the offense committed and shocks the conscience. Thus, the Supreme Court’s finding that Katie’s expulsion was not excessive was clearly erroneous. At the very minimum, the Supreme Court should have provided Katie with a hearing to assess the justifications for her expulsion, the truth of any hearsay testimony relied upon in the Order, the extent of Respondent’s "deviation" from its Code of Ethics and other procedures, the alternative sanctions short of dismissal handed out by Respondent in similar cases of alleged academic misconduct, and the degree of harm inflicted on Katie as a result of expulsion accompanied by the aforementioned rule and Code of Ethics violations. 41 c unicati s t t t ). Importantly, tw of the three cases cited i ts less severe than expulsion for conduct much more serious t t alleged against Katie. . York Univ., 41 . . i ); . . t ( e-year suspension) . ad been a model student at NYU, with a flawless disciplinary In fact, she received an award co mending her on her cademic Expelling Katie for paying a m re $1,907.00 in her final billing , after being admonished for paying the diff rence herself, she earned r ork at the clinic, has provided a level of discipline dispr portionate itted and shocks the conscience. Thus, the Supreme Court's tie' lsion as not exce sive was clearly e roneous. At the i i , the Supreme Court should have provided Katie with a hearing to t j stifications for her expulsion, the truth of any hearsay testimony r lied i t rder, the extent of Respondent's "deviation" from its Code of Ethics t er procedures, the alternative sanction short of dismissal han ed out by ent in similar cases of alleged academic misconduct, and the degree of r inflicted on Katie as a result of expulsion accompanied by the f re entioned rule and Code of Ethics violations. 41 II. THE TRIAL COURT ERRED IN GRANTING RESPONDENT’S MOTION TO DISMISS THE PETITION As demonstrated above, Petitioner’s underlying Article 78 Petition seeking to overturn Respondent’s final decision expelling her with no chance of re- admittance should have been granted in light of multiple, material procedural violations and because the punishment is excessive in light of the alleged offense. As such, it logically follows that, since the Petition was worthy of the relief sought, Respondent’s motion to dismiss should have been denied outright. However, in addition to its incorrect decision denying the Petition, the trial court also granted the Respondent’s motion to dismiss the petition outright. Thus, in light of the court’s improper conclusion that the underlying Petition should have been dismissed, it is necessary to dedicate additional time to further clarify why this holding is in error. A. The Standard for Dismissal of Article 78 Is Whether a Cause of Action Is Pled "On a motion to dismiss for failure to state a cause of action (CPLR 3211, subd. a, par. 7; CPLR 7804, subd. f), the court looks to the substance of the pleading to determine whether the pleader has a cause of action, not whether it has properly stated one." New York State Soc. of Obstetricians and Gynecologists, Inc. v. Corcoran, 138 Misc.2d 591, 593 (Sup. Ct. N.Y. Co. 1987) (citing Rovello v. Orofino Realty Co., Inc., 40 N.Y.2d 633 (1976). When considering a motion "to 42 ,~ , " '!'k'· ~ ,- --~ ~ !'.-;' THE TRIAL COURT ERRED IN GRANTING RESPONDENT'S I trated above, Petitioner's underlying Article 78 Pe tion seeking t r espondent's final decision expelling her with no chance of re- e should have b en granted in light of multiple, material procedural i s and because the punishment is excessive in light of the all ged offense. , it logica ly follows that, since the Petition was worthy of th r lief sought, ent' tion to dis iss should have b en denied outright. However, in t its inco rect decision denying the Petition, the trial court also granted dent's otion to dismi s the petition outright. Thus, in light of the t' i roper conclusion that the underlying Pe tion should have been , it is nece sary to dedicate a d tional time to further clarify why this is in e ror. rd for Dismi sal of Article 78 Is Whether a Cause of Action tion to dismi s for failure to s ate a cause of action (CPLR 3211, r. 7; CPLR 7804, subd. f), the court looks to the substance of the i g to determine whether the pleader has a cause of actio , not w ther it has l stated one." ork State Soc. o/ bstetricians and Gynec logi ts, Inc. . . . . 1987) (citing lo v. lty Co., Inc., When considering a motion "to dismiss a petition upon an objection in point of law, only the petition is to be considered and all of its allegations are deemed to be true." Long Island Contractors’Ass’n v. Town of Riverhead, 793 N.Y.S.2d 494, 594 (2d Dept. 2005) (citing Matter of Zaidins v. Hashmall, 288 A.D.2d 316 (2d Dept. 2001); Matter of De Paoli v. Board of Educ., 92 A.D.2d 894 (2d Dept. 1983). Further, the facts presented in the petition must be viewed in "the light most favorable to the petitioner." Lyles v. Ravitch, 101 A.D.2d 862, 863 (2d Dept. 1984); Kiblitsky v. Lutheran Medical Ctr., 32 Misc.3d 575, 578 n.1 922 N.Y.S.2d 769 (Sup. Ct. 2011). B. Petitioner Properly Pled an Article 78 Case At its heart, the Order resolved multiple disputed issues of fact on a motion to dismiss an Article 78 Petition. Justice Schlesinger found as a matter of fact that Petitioner-Appellant "admitted to falsifying patient treatment records." R. 11. This was clearly erroneous, because the "encounter forms" referenced in the Palatta affidavit were used by Defendant’s secretarial staff to administer the PMV payments by students to NYU, and were not part of a dental clinic patient’s chart. R. 63 ¶ 7, 66J 13, 67-68J 14; 161-173. Katie had no ability to "falsif’[]" patient treatment records, in the words of the Order, or "forg[e] patient records" and "mak[e] payments that [she] knew to be false," as Dean Palatta described the PRB 43 tition upon an objection in point of law, only the petition is to be and a l of its a legations are d emed to be true." s' A s'n v. Town of Riverhead, . , f i s v. Hashma l, . 316 (2d Dept. 2 01); li v. oard of :-, (2d ept. 1983). Further, the facts t in the petition must be viewed in "the light most favorable to the r." v. avitch, 101 862, 863 (2d Dept. 1984); litsky v. ical Ctr., . 575, l . . .2d 769 (Sup. Ct. r roperly Pled a.n Article 78 Case rt, the rder resolved multiple disputed issues of fact on a motion i an rticle 78 Petition. Justice Schlesinger found s a matter of fact that r- ppe lant "admi ted to falsifying patient treatment records." R. 11. clearly e roneous, because the "encounter forms" r f renced in the ffidavit were used by Defendant' secretarial staff to adm nister the PMV y students to NYU, and were not part of a dental cl nic patient's chart. ,-[ 66,-[ 13, -68,-[ 14; 161-173. Katie had no ab lity to "falsify[]" patient t records, in the words of the Order, or "forg[e] patient records" and eJ ay ents that [she] knew to be false," as Dean P latta described the PRE charges, 12 because Katie never maintained any patient treatment records, and PMV payments do not appear in a patient’s chart. R. 63 ¶ 7, 66T 13, 67-68 14; 161-173. An order dismissing a case or granting summary judgment before trial is "a drastic measure, ... since it deprives a party of his day in court and will normally have resjudicata effects." Ugarriza v. Schmieder, 46 N.Y.2d 471, 474, 414 N.Y.S.2d 304, 305 (1979). "Under the prevalent policy of ’notice pleading’ embodied in CPLR Article 30, a pleading need only ’give notice’ of the event out of which the grievance arises." Ho/me v. Global Minerals and Metals Corp., 880 N.Y.S.2d 873, 2009 WL 387034, *3 (N.Y. Sup. Ct, N.Y. Cty. 2009). Therefore, a motion to dismiss for failure to state a cause of action CPLR § 3211 calls upon the court to "determine whether the allegations of the complaint when viewed most favorably to the plaintiff fall within any cognizable legal theory." Castle Village Owners Corp. v. Greater New York Mut. Ins. Co., 868 N.Y.S.2d 189, 192 (1st Dep’t 2008) (emphasis added). In making this determination, all factual allegations in the Petition should be accepted as true, and all reasonable inferences should be drawn in the petitioner’s favor. See id.; see also Meadows v. Planet Aid, Inc., No. 08 Civ. 02846, 2009 WL 3734316, *6 (E.D.N.Y. Nov. 4, 2009). Dismissal will be reversible error unless no cognizable legal theory applies to the Petition, which the court must accept as true, liberally construe in favor of the 12 See R. 159. ,12 ecause Katie never maintained any patient treatment records, and PMV t d not appear in a patient's chart. R. 63 ,-r 7, 66,-r 13, 67-68,-r 14; 161-173. r er dis issing a case or granting su mary judgment before trial is "a asure, ... since it deprives a party of his day in court and will normally judicata e fects." ieder, . . d 471,474,414 . .2d 304, "Under the prevalent policy of 'notice pleading' i rticle 30, a pleading n ed only 'give notice' of the event out t e grievance arises." l v. lobal inerals and Metals Corp., . 873, 2009 WL 387034, *3 ( . . Sup. Ct, N.Y. Cty. 2 09). Therefore, a t dis iss for failure to state a cause of action CPLR § 3211 calls upon the ter ine whether the allegations of the complaint when viewed most t the plaintif fall iz le legal theory." Castle Village v. Greater New York Mut. Ins. Co., . 189, 192 (1st ' ( sis added). In making this d termination, all factual in the Petition should be a cepted as true, and all reasonable inferences i t titioner's favor. l eado s v. Planet Aid, ., 2846, 009 L 3734316, . . . 4, 2009). reversible e ror unle s no cognizable legal theory applies to the ich the court must a cept as true, liberally construe in fav r of the 12 See R. 159. 44 plaintiff, and make every possible favorable inference in favor of the Petition. See Board of Managers of Marke Gardens Condominium v. 2401242 Franklin Ave., LLC, 71 A.D.3d 935, 936, 898 N.Y.S.2d 564 (2d Dep’t 2010) (citing Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972 (1994); RCGLVMaspeth LLC v. Maspeth Properties L.L.C., 2010 N.Y. Slip op. 50503(U), 2010 WL 1133245, at *2 (N.Y. Sup. Ct., Kings County, Mar. 25, 20 10) (citing Campaign for Fiscal Equity, Inc. v. State of New York, 86 N.Y.2d 307, 318 (1995); Leon, 84 N.Y.2d at 87). As noted above, Katie properly pleaded an Article 78 Petition. It was therefore improper to dismiss it under CPLR 3211. In New York, "[w]hether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss." EBCI, Inc. v. Goldman, Sachs & Co., 5 N.Y.3d 11, 20, 99 N.Y.S.2d 170, 175, 832 N.E.2d 28 (2005). For this reason, "[w]hether the complaint will later survive a motion for summary judgment, or whether the plaintiff will ultimately be able to prove its claims, of course, plays no part in the determination of a prediscovery CPLR 3211 motion to dismiss." Shaya B. Pacific, LLC v. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, 38 A.D.3d 34, 38 (2d Dept 2006). This Court should deny the motion to dismiss if there is any "dispute [that] is factual in nature and requires discovery." RCGL V Maspeth LLC, 2010 WL 1133245, at *4 The Court should be careful not to weigh the evidence on 45 , and ake every po sible favorable inf rence in fav r of the Petition. f anagers of Marke Gardens Condom nium v. 2401242 Franklin Ave., , 5, , . .S.2d 564 (2d Dep't 2010) (citing v. , 87-88, 614 N.Y.S.2d 972 (1 94); V Maspeth LC v. rties L.L.C, lip Op. ( ), 2010 L 1 3245, at . t., Kings County, Mar. 25,2010) (c ting i I v. State of New York, , 318 (1995); , ab e, atie properly pleaded an Article 78 Petition. It was i roper t dis iss it under CPLR 32 1. In New York, "[ w ]hether a tiff ulti ately establish its allegations is not part of the calc lus in a otion to dismi s." I v. Goldman, Sachs & Co., , . 170, 175,832 N.E.2d 28 (2 05). For this reason, "[w]hether laint i l later survive a motion for su mary judgment, or whether the tiff ill ulti ately be able to prove its claims, of course, plays no part in the ti n of a prediscovery CPLR 32 1 motion to dismiss." i ils , Elser, Moskowitz, Edelman & Dicker, LLP, , (2d This Court should deny the motion to dismiss if th re is i nature and requires discovery." L aspeth LC, , at *4. The Court should be careful not to weigh th evidence on both sides. See JFK Family Ltd. Partnership v. Millbrae Natural Gas Development Fund 2005, L.P., 873 N.Y.S.2d 234 (Table), 2008 WL 4308289, *25 (N.Y. Sup. Ct., Westchester Cty. 2008); Goldman v. Belden, 754 F.2d 1059, 1067 (2d Cir. 1985). The Court also must not accept hearsay "evidence." Basile v. Albany College of Pharmacy of Union University, 279 A.D.2d at 771. The Court should have rejected all independent submissions of Respondent, including the Palatta affidavit, which conflicted with allegations in the Petition. See Millbrae Natural Gas, 2008 WL 4308289, *25; Goldman, 754 F.2d at 1065-67. ffel both sides. See JFK Family Ltd. Partnership v. Millbrae Natural Gas evelopment Fund 2 05, L.P., . .S.2d 234 (Table), 2 08 WL 4308289, *25 ( . . Sup. Ct., Westchester Cty. 2 08); ld an v. Belden, 754 .2d 1059, 1067 ( ir. 1985). The Court also must not accept hearsay "evidence." asile v. lbany Co lege of Pharmacy of Union University, . . d at 771. The Court l ave rejected all independent submissions of Respondent, including the l tta affidavit, which conflicted with allegations in the Petition. ill t r l s, 4308289, . at 1065-67. 46 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 enter a new ruling granting Petitioner-Appellant’s Article 78 petition or, in the alternative, ordering a hearing on it pursuant to Article 7804[h]. Dated: Cane Place, New York December 12, 2011 Respectfully submitted, LEEDS MORELLI & BROWN, P.C. Attorneys for Appellant F.] F.] 1ntfld Country Road, Suite 347 Care Place, New York 11514 (516) 873-9550 (Phone) (516) 747-5024 (Facsimile) 47 1 I i I ~ E, Petitioner-A pellant, Katie Kickertz respectfully requests ourt reverse the Order of the New York County Supreme Court dated r , , insofar as it denied Pe tioner-Appellant's Article 78 Petition and t at the Article 78 Proc eding be dismissed, and enter a new ruling titioner-A pellant's Article 78 pe tion or, in the alternative, ordering a on it pursuant to Article 7804[h] . . rle Place, New York r 12, 2011 tf lly submi ted, LLI & BROWN, P.C. ys r ppe lant , I . I i (.fin ! d Country Road, Suite 347 e Place, New York 1514 i ile) PRINTING SPECIFICATIONS STATEMENT The foregoing brief was prepared on a computer. A proportionally spaced typeface was used as follows: Name of Typeface: Times New Roman Point Size: 14 Line Spacing: Double The total number of words in the brief, inclusive of point headings and footnotes and exclusive of pages containing the table of contents, table of cita- tions, proof of service, certificate of compliance, or any authorized addendum containing statutes, rules, regulations, etc. is 11,234. IFIC TIONS STATEMENT rief was prepared on a computer. A proportionally spaced sed as fo lows: f : i es New Roman 1 uble r f ords in the brief, inclusive of point headings and exclusive of pages containing the table of contents, table of cita- roof of service, certificate of compliance, or any authorized addendum statutes, rules, regulations, etc. is 11,234. db I Pro-Argument Statement [1-2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of KATIE KICKERTZ, PREARGUMENT STATEMENT Petitioner/Appellant, -against- NEW YORK UNIVERSITY, INDEX NO.: 103461/2010 Respondent/Respondent ------------ x 1. Katie Kickertz is the Petitioner/Appellant and New York University is the Respondent/Respondent; 2. Petitioner/Appellant is represented by: Leeds Morelli & Brown, P.C., (Jeffrey K. Brown, Esq.), One Old Country Road, Ste 347, Cane Place NY 11514. (516) 873-9550; 3. Respondent/Respondent is represented by: New York University (Nancy Kilson, Esq.), 70 Washington Square South, 11th floor, New York, NY 10012.(212) 998-2258; 4. The Supreme Court of the State of New York, County of New York is where the civil action special proceeding Article 78 commenced and Petitioner is appealing a decision; 5. The action was commenced by filing an Article 78 dated March 16, 2010. The Petitioner, Katie Kickertz, alleges causes of action against the Respondent, New York University pursuant to New York Civil Practice Laws and Rules to redress the Actions of Respondent New York University including violation of its legal duties and conducting disciplinary proceedings against the Petitioner unfairly, arbitrarily and capriciously; 6. The Respondent moved to Dismiss the Article 78 and in a Decision dated February 3, 2011 the Honorable Alice Schlesinger granted the Respondent/Respondent the dismissing of the Article 78 in its entirety; 7. Petitioner/Appellant is seeking the reversal as to whether the court erred in granting their motion to dismiss the Article 78. 1 I I I i I I I i I ! 1 re- r ent Statement [1-2] E STATE OF NE YORK . -------.... _---------------------------------------------------------}{ I t att r f t e pplication of I I . titi r/ ppe lant. i st- I SI , dent/ espondent -------------------------------------------------------------------X EARGUMENT TATEMENT . 10 12010 . tie i rtz is the Petitioner/Ap nt a New York Universit is the J .espondent; . / e lant is represented by: L eds Morelli & Brown, P.C., (Jeffrey K.. Brown, OWltty oad, Ste 347, Carle Place NY 1 514. ; . t is represented by: New York University (Nancy Kilson, Esq.), uth. 11th 1 012.(212) 98- 258; . t t t f e York, County of New York is where the civil i rticle 78 co menced and Petitioner is a pealing a decision; . enced by filing an Article 78 dated March 16,2010. The Petitioner, tie rtz, s acti against the Respondent, Ne York Universit rsuant to l ice s t redre th Acti of r University including violation of its legal duties and conducting i st t etitioner unfairly, arbitrarily and capriciously; . t t rti l 7 and in a Decision dated February 3, li chlesinger granted the RespondentlResponden the dismi sing t . l i the reversal as to whether the court erred in granting their icL 2 8. There is a related action now pending in this court The Honorable Alice Schleshinger combined her decision of the related action by the Petitioner having filed a complaint as Index No. 103462/2010. 8. Ther is a related action no pendi i this court. The Honorable Alice Sch1eshinger i e r i Petitioner having tilod a complaint as I . 1
