In the Matter of Katie Kickertz, Respondent,v.New York University, Appellant.BriefN.Y.Feb 10, 2015To be Argued by: IRA M. FEINBERG (Time Requested: 20 Minutes) APL-2013-00248 New York County Clerk’s Index No. 103461/10 Court of Appeals of the State of New York In the Matter of the Application of KATIE KICKERTZ, Petitioner-Respondent, For a Judgment Pursuant to Article 78 of the Civil Practice Law and Rules – against – NEW YORK UNIVERSITY, Respondent-Appellant. REPLY BRIEF FOR RESPONDENT-APPELLANT IRA M. FEINBERG JORDAN L. ESTES HOGAN LOVELLS US LLP Attorneys for Respondent-Appellant 875 Third Avenue New York, New York 10022 Tel.: (212) 918-3000 Fax: (212) 918-3100 Date Completed: July 7, 2014 i TABLE OF CONTENTS Page PRELIMINARY STATEMENT ............................................................................... 1 ARGUMENT ............................................................................................................. 6 I. The Court Has Jurisdiction Over the University’s Appeal. .................. 6 II. The Appellate Division Erred in Granting the Petition Without Allowing the University to Answer. ..................................................... 8 A. The BOCES Standard Was Not Satisfied Here. .......................... 8 1. The University’s Motion Did Not Concede that the Record Was Fully Developed and that No Facts Were in Dispute. ............................................................... 9 2. Kickertz’ Effort to Distinguish Bethelite is Unpersuasive. .................................................................. 12 3. The Undisputed Facts Do Not Show That Kickertz is Entitled to Relief. ............................................................ 12 B. The University Was Prejudiced by Its Inability to Answer. ..... 18 1. The University Did Not Waive Its Right to Defend the Case by Moving to Dismiss. ........................................... 18 2. The University Was Prejudiced by Its Inability to Present Its Version of the Facts. .................................................. 19 a. Evidence of Falsified Documents. ....................... 23 b. Evidence Investigators Reviewed The Falsified Documents. ........................................................... 25 c. Evidence Regarding Kickertz’ Responsibility to Call Witnesses. ..................................................... 29 d. Evidence Regarding Who Determined Procedural Matters. ................................................................. 29 ii e. Evidence Regarding Substantial Justice. .............. 31 f. Evidence Regarding the Reliability of Statements by Dr. Meeker and Dr. Hershkowitz. ................... 32 3. The University Was Prejudiced By Its Inability to Present Evidence that Kickertz’ Dismissal Had an Academic Component. ..................................................................... 33 C. The Court Should Vacate the Appellate Division’s Rulings on the Merits, and Remand to the Supreme Court to Permit the University to Answer. ............................................................... 35 III. The Supreme Court Properly Dismissed Kickertz’ Petition. .............. 36 IV. If the Court Finds that the University Violated the 2009 Code, the Proper Remedy Is a New Hearing Before the PRB. ........................... 38 CONCLUSION ........................................................................................................ 42 iii TABLE OF AUTHORITIES Page(s) CASES Brun v. Wallach, 42 Misc.3d 1212(A), 2014 N.Y. Slip Op. 50028(U), 2014 WL 181430 (N.Y. Sup. Ct. Jan. 16, 2014) .............................................................................. 15 Bus v. Bethlehem Steel Corp., 29 N.Y.2d 866 (1971) ........................................................................................... 8 Eidlisz v. New York Univ., 15 N.Y.3d 730 (2010) ................................................................................... 39, 40 Eidlisz v. New York Univ., 61 A.D.3d 473 (1st Dep’t 2009) ......................................................................... 39 Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314 (2002) ......................................................................................... 10 Gray v. Alducci, 73 N.Y.2d 741 (1988) ......................................................................................... 14 Health Dep’t of City of N.Y. v. Dassori, 159 N.Y. 245 (1899) ............................................................................................. 7 Held v. Kaufman, 91 N.Y.2d 425 (1998) ......................................................................................... 10 Howard v. Wyman, 28 N.Y.2d 434 (1971) ........................................................................................... 8 Kelly v. Safir, 96 N.Y.2d 32 (2001) ..................................................................................... 19, 20 Landon v. Kroll Lab. Specialists, Inc., 22 N.Y.3d 1 (2013) ............................................................................................. 11 Lazarcheck v. Christian, 58 N.Y.2d 1033 (1983) ......................................................................................... 8 iv Matter of Bd. of Educ. of Monticello Sch. Dist., 91 N.Y.2d 133 (1997) ......................................................................................... 14 Matter of Bethelite Community Church, 8 N.Y.3d 1001 (2007) ......................................................................................... 12 Matter of Daniel H., 15 N.Y.3d 883 (2010) ....................................................................................... 6, 7 Matter of Ebert, 28 A.D.3d 315 (1st Dep’t 2006) ......................................................................... 16 Matter of Nassau BOCES Cent. Council of Teachers, 63 N.Y.2d 100 (1984) ..................................................................................passim Matter of Olsson, 49 N.Y.2d 408 (1980) ................................................................................... 40, 41 Mihlovan v. Grozavu, 72 N.Y.2d 506 (1988) ......................................................................................... 10 People ex rel. Vega v. Smith, 66 N.Y.2d 130 (1985) ......................................................................................... 14 People v. Borges, 69 N.Y.2d 1031 (1987) ......................................................................................... 7 Rovello v. Orofino Realty Co., 40 N.Y.2d 633 (1976) ......................................................................................... 10 Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395 (1957) ............................................................................................. 7 Tedeschi v. Wagner Coll., 49 N.Y.2d 652 (1980) ..................................................................................passim Waterbury v. Sturtevant, 18 Wend. 353 (N.Y. Ct. Corr. Errors 1837) ....................................................... 14 Zartoshti v. Columbia Univ., 79 A.D.3d 470 (1st Dep’t 2010) ................................................................... 17, 31 v STATUTES CPLR § 3211 ............................................................................................................ 10 CPLR § 5514 .............................................................................................................. 8 CPLR § 7804 ..................................................................................1, 8, 10, 12, 20, 35 PRELIMINARY STATEMENT CPLR § 7804(f) provides that, following denial of a pre-answer motion to dismiss an Article 78 proceeding, “the court shall permit the respondent to answer.” (Emphasis added). As this Court made clear in Matter of Nassau BOCES Cent. Council of Teachers, 63 N.Y.2d 100, 102 (1984), the respondent must be permitted to answer following denial of a motion to dismiss “unless the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result.” In her brief, Kickertz makes only a passing attempt to argue that the BOCES standard was met here. For good reason: it is plain that the facts were not “fully presented,” and that – rather than being “clear that no dispute as to the facts exists” – the facts were hotly disputed. For example, there are significant factual disputes about (a) when Kickertz was notified that she had not satisfied her PMV1 clinical requirements; (b) whether she passed up ample opportunities in April and May 2009 to satisfy those requirements; (c) what she admitted to Drs. Meeker and Hershkowitz when they confronted her on June 1, 2009; (d) whether she falsified a patient’s chart in her efforts to claim she had performed procedures that she had not in fact performed; (e) whether the PRB’s Investigating Panel reviewed the fraudulent documents that she submitted; (f) whether the testimony given by Drs. 1 Capitalized terms and abbreviations used in this reply brief have the same meaning ascribed to them in the University’s opening brief. 2 Meeker and Hershkowitz to the Investigating Panel should be credited; and (g) whether Dr. Palatta made decisions on procedural matters regarding the conduct of the hearing that should have been made by the PRB. Indeed, even though Kickertz’ brief purports to set out what she calls the “undisputed facts,” Br. 10, her brief repeatedly acknowledges that many key facts are in dispute. See id. at 9, 11 (acknowledging factual dispute whether she falsified patient treatment records); 22-23 (acknowledging dispute whether Investigating Panel reviewed falsified documents she submitted); 24-26 (dispute whether Dr. Palatta made decisions on PRB procedure); 27-29 (dispute over reliability of statements made by Dr. Hershkowitz and Dr. Meeker). Moreover, the record before the Court is woefully inadequate in critical respects. Most important, the record does not include the written summary of the PRB hearing – which describes the procedure and substance of the hearing and explains the PRB’s rationale in recommending that Kickertz be dismissed – or any evidence regarding review of that decision by the College Review Board. The record also does not disclose, among other things, who made the procedural decisions that Kickertz attributes to Dr. Palatta, what consultations he may have had with the PRB, whether Kickertz raised these issues again before the PRB, or what efforts Kickertz made to secure the attendance of witnesses at the hearing. 3 Rather than making any serious attempt to defend the Appellate Division’s decision to grant her petition without allowing the University to answer, Kickertz principally makes a series of arguments claiming that the University was not prejudiced by this decision. These arguments are completely without merit; the prejudice to the University from being denied an opportunity to answer the petition and to develop a record in its defense is readily apparent. The University was denied an opportunity to demonstrate the full scope of Kickertz’ misconduct; the care with which the PRB and College Review Board approached this disciplinary decision; the conduct of the proceedings before the PRB; and the PRB’s rationale for recommending Kickertz’ dismissal, including her failure to accept any responsibility for her misconduct, her false accusations against her professors, and her efforts to blame others for her conduct. In addition, the University was denied an opportunity to explain the academic purposes served by the PMV requirement, and the intent behind the University’s adoption of the 2009 Code and the procedures it prescribed. Indeed, Kickertz’ argument is based on a false premise, that the prejudice suffered by the University can be fairly evaluated on the one- sided record before the Court. In fact, the University was prejudiced by its inability to build a record in its defense in the lower courts. Kickertz contends that her one-sided version of the facts shows that the University violated its own disciplinary guidelines, and that the numerous factual 4 disputes are immaterial. Kickertz emphasizes in particular that the University did not present witnesses against her at the PRB hearing and relied on the Investigating Panel’s report, which she characterizes as “hearsay.” But her argument erroneously assumes that she was entitled to receive trial-type procedures under the 2009 Code. She was not. Instead, the 2009 Code set out a peer-led disciplinary process that was intended to move away from trial-type procedures and was by its terms “not . . . restricted by the rules of evidence used in a court of law.” R.265. Nothing in the 2009 Code required the University to present live testimony at the hearing, rather than relying on the thorough report of the Investigating Panel and giving Kickertz an opportunity to challenge its findings and explain her conduct. The Appellate Division erred in faulting the University for not following trial-type procedures not specified in the 2009 Code, and improperly disregarded the appropriate standard of review of private university disciplinary decisions. As this Court has held, the courts’ role in reviewing disciplinary decisions of a private university is limited to determining whether the university substantially observed its own disciplinary guidelines. Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 660 (1980). Even if there were minor deviations from the procedures specified by the Code, they would not entitle Kickertz to Article 78 relief. In granting Kickertz’ petition, the Appellate Division stated as an alternative ground that Kickertz’ dismissal shocked the court’s conscience, expressly relying 5 on Kickertz’ version of disputed facts. Kickertz makes no effort to defend this aspect of the Appellate Division’s ruling. Instead, Kickertz argues only that the “shock the conscience” rationale was a valid basis for the Appellate Division to find that Kickertz “stated a claim” for relief. Br. 5. This, of course, is not what the Appellate Division said or did: Kickertz’ argument provides no support for the Appellate Division’s decision to grant the petition, and at most suggests that the Appellate Division’s decision should be vacated and this case remanded to the Supreme Court to permit the University to answer and litigate the merits. In any event, Kickertz’ argument on this point is without merit; as the Supreme Court held, it is not shocking for a student to be dismissed for submitting false records purporting to show that she had satisfied mandatory clinical course requirements. Finally, Kickertz attempts to raise issues in this Court about whether, in light of the Appellate Division’s decision, she is entitled to an NYU degree and her attorneys’ fees. But Kickertz concedes that she has raised these issues in her pending appeal to the Appellate Division, and that they are not “ripe” for this Court’s review. Br. 5, 42. Moreover, even if the Court were to conclude that Kickertz’ Article 78 petition should be granted because the University had not substantially followed the 2009 Code, Kickertz would not be entitled to this relief. The only relief Kickertz would be entitled to is a new disciplinary hearing at which the proper procedures were followed. 6 A R G U M E N T I. The Court Has Jurisdiction Over the University’s Appeal. Kickertz argues that the Court does not have jurisdiction over the University’s appeal because the Appellate Division disagreed over a mixed question of law and fact, not a pure question of law. Br. 15-16.2 As Kickertz notes, this Court held in Matter of Daniel H., 15 N.Y.3d 883, 884 (2010), that it lacks jurisdiction over mixed questions of law and fact. But Kickertz wholly fails to explain why the question at issue here is a mixed question. The University explained in detail why the issue presented here is a question of law, see NYU Br. 32-36, but Kickertz does not address any of the arguments or authorities it cited. Rather, she simply asserts, without citation, that the question here is mixed because the majority and dissent disagreed “on the application of the facts to the law.” Br. 15. This argument should be rejected. As the University explained in its opening brief, the question here is an issue of law because the Appellate Division fundamentally disagreed about the appropriate legal standard governing a respondent’s right to answer an Article 78 petition after denial of a motion to 2 In her earlier letter-briefing, Kickertz had challenged the Court’s jurisdiction on two additional grounds: (1) that the dissent would not have resolved the appeal in the University’s favor, and (2) because the University had allegedly failed to preserve the issue for review. The University addressed these issues in its opening brief, NYU Br. at 36-38, but Kickertz has not renewed her arguments on these points in her brief. 7 dismiss. NYU Br. 32-34. It is well settled that this Court has jurisdiction to address this issue and define the appropriate legal standard. See People v. Borges, 69 N.Y.2d 1031, 1033 (1987) (application of an incorrect legal standard is an issue of law reviewable by the Court of Appeals). But even if the Appellate Division’s disagreement was over the application of the standard outlined in BOCES, as Kickertz contends, rather than its scope, their disagreement still involves a question of law. The BOCES standard asks whether “the facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists.” 63 N.Y.2d at 102. This standard is similar to the summary judgment standard, which allows the court to enter judgment only if it “clearly appear[s] that no material and triable issue of fact is presented.” Sillman v. Twentieth Century-Fox Film Corp., 3 N.Y.2d 395, 404 (1957). But it has long been established that the proper application of the summary judgment standard is a question of law. See NYU Br. 35-36; Health Dep’t of City of N.Y. v. Dassori, 159 N.Y. 245, 249 (1899) (“It is a question of law whether a question of fact was presented upon the evidence.”).3 3 Matter of Daniel H. is readily distinguishable. Daniel H. involved the question whether the statement made by a criminal defendant was sufficiently attenuated from his earlier un-Mirandized statement to be admissible in evidence against him, and a long line of cases had established that the attenuation issue is a mixed question of law and fact. See 15 N.Y.3d at 884. 8 In any event, to the extent the Court believes that any jurisdictional issue precludes the Court from reaching the merits of this appeal, the University respectfully requests that the Court remedy the defect by granting the University leave to appeal. See Howard v. Wyman, 28 N.Y.2d 434, 437 n.2 (1971) (holding that appeal taken as of right was subject to dismissal, but granting leave to appeal requested at oral argument). The appeal has been fully briefed by the parties and considered by the Court, the decision of the Appellate Division is plainly mistaken and requires correction, and it would be extremely wasteful of the Court’s time and the parties’ to simply dismiss the appeal.4 II. The Appellate Division Erred in Granting the Petition Without Allowing the University to Answer. A. The BOCES Standard Was Not Satisfied Here. Kickertz does not deny that CPLR § 7804(f) generally requires that the respondent in an Article 78 proceeding must be provided an opportunity to answer. See Br. 16 (recognizing the “mandate” of CPLR § 7804(f)). Instead, she argues that this case falls within the exception outlined in BOCES, because the key facts are allegedly “undisputed,” Br. 16, and the Appellate Division allegedly “made its finding . . . on a developed record of undisputed facts.” Id. at 41. Kickertz makes 4 The University’s request for permission to appeal would be timely under CPLR § 5514(a) even if its appeal as of right were dismissed. See Lazarcheck v. Christian, 58 N.Y.2d 1033 (1983) (dismissing appeal as of right, but noting that appellant had 30 days therefrom to make motion for permission to appeal); Bus v. Bethlehem Steel Corp., 29 N.Y.2d 866 (1971) (same). 9 a variety of arguments as to why it was proper for the Appellate Division to refuse to permit the University to answer, but none has any merit. 1. The University’s Motion Did Not Concede that the Record Was Fully Developed and that No Facts Were in Dispute. First, Kickertz argues that the record was sufficiently developed because the University moved to dismiss on documentary evidence, and argued that no discovery was necessary and that the case could properly be dismissed based on the facts demonstrated by her Article 78 petition. Id. This argument completely misperceives the function of a motion to dismiss. By moving to dismiss, the University simply argued that the case could properly be dismissed as a matter of law on the facts alleged in the petition (including facts demonstrated in the documents appended to it); the University did not concede that the facts were undisputed. In arguing that the petition could be dismissed without discovery, the University did not concede that no discovery would be necessary if the court rejected that argument. Kickertz emphasizes that the University’s motion to dismiss was based on documentary evidence. Id. at 17-18. But the documentary evidence the University relied upon consisted principally of the documents that Kickertz herself submitted with her petition. The University submitted only two exhibits, which were submitted merely to establish that the 2009 Code, rather than the 2005 Code, applied to Kickertz’ disciplinary proceeding. See R.302-17. In making this motion, 10 the University relied on CPLR § 3211(a)(1), which permits dismissal where “documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” Held v. Kaufman, 91 N.Y.2d 425, 430-31 (1998) (quotation omitted). But Section 3211(a)(1) does not contemplate that the respondent must submit all of its evidence on such a motion; it contemplates only the submission of evidence that “conclusively establish[es] a defense as a matter of law.” Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326 (2002). Similarly, CPLR § 7804(f) states that a respondent’s motion to dismiss should contain “objection[s] in point[s] of law.” Neither provision contemplates that making a motion to dismiss precludes a respondent from later answering, moving for summary judgment, or presenting its defenses at trial. On the contrary, both provisions recognize that upon denial of such a motion, the moving party has the right to answer and defend the case. See CPLR §§ 3211(f), 7804(f). The University did not make a motion for summary judgment. CPLR § 3211(c) permits a trial court to treat a motion to dismiss as a motion for summary judgment in some circumstances. But critically, this provision can be invoked only “after adequate notice to the parties,” CPLR § 3211(c), which allows the parties “an opportunity to make an appropriate record.” Rovello v. Orofino Realty Co., 40 N.Y.2d 633, 635 (1976); see also Mihlovan v. Grozavu, 72 N.Y.2d 506, 508 (1988) (reversing court’s sua sponte treatment of motion to dismiss as motion for 11 summary judgment because it “deprived plaintiff of the ‘opportunity to make an appropriate record’”). The trial court here did not treat the University’s motion as a motion for summary judgment; accordingly, it did not provide the University with any such notice and the University had no opportunity to develop a record in its defense. In making its motion to dismiss, the University obviously had to accept the allegations of Kickertz’ complaint as true for purposes of the motion. Kickertz rejects this basic principle, and argues that the University relied upon the exception that the trial court need not accept factual allegations that are contradicted by documentary evidence. Br. 19-20. But this hardly means that the University was free to dispute the facts alleged by Kickertz. On the contrary, as the University stated in its papers, the University was required to take Kickertz’ pleadings and supplemental submissions “as true (solely for purposes of this motion to dismiss),” R.277, consistent with the applicable legal standards. See Landon v. Kroll Lab. Specialists, Inc., 22 N.Y.3d 1, 5-6 (2013) (on motion to dismiss, court must accept facts alleged in complaint as true). The University argued that dismissal was warranted even on Kickertz’ one-sided presentation of the facts. In doing so, it in no way conceded that there were no other facts and evidence relevant to its defense. 12 2. Kickertz’ Effort to Distinguish Bethelite is Unpersuasive. In Matter of Bethelite Community Church, 8 N.Y.3d 1001 (2007), this Court held that it was error for the Supreme Court to have granted an Article 78 petition “without first affording respondents an opportunity to answer.” 8 N.Y.3d at 1002. Kickertz argues that this case is distinguishable because in Bethelite, the respondent moved to dismiss on procedural grounds, whereas here, the University moved to dismiss on the merits. Br. 41-42. But Kickertz fails to explain why that purported distinction makes any difference, since moving to dismiss on the merits does not amount to a concession that the facts alleged in the petition are undisputed or that the respondent does not have other defenses. Under Kickertz’ theory, any defendant who moves to dismiss an Article 78 petition on the merits can be precluded from further defending the petition if the motion is denied. That theory is entirely inconsistent with the mandate of CPLR § 7804(f), requiring the court to permit an answer, and the limited exception to that rule contemplated by BOCES. 3. The Undisputed Facts Do Not Show That Kickertz is Entitled to Relief. Kickertz also argues that the undisputed facts show that the University did not substantially follow the provisions of the 2009 Code. Br. 31-34. Kickertz first points out that the University initially dismissed her without providing her with any hearing at all. Id. at 32. This is true, but the University quickly recognized this error, rescinded that action, and provided Kickertz with the hearing required 13 by the 2009 Code. See NYU Br. 17-19. The University’s initial failure to provide her with a hearing is thus irrelevant here, particularly since the only relief to which she would be entitled is a new hearing in compliance with the Code, which is exactly what she received.5 Kickertz also objects that the evidence supporting the charges against her was not presented by the Investigating Panel, as required by the Code. Br. 32. This is not true – the evidence was presented by providing the PRB with the Investigating Panel’s report, R.113, as Kickertz acknowledges elsewhere in her brief, Br. 12. Kickertz dismisses the report as “hearsay,” and argues that live testimony was required. But Kickertz is improperly reading into the Code trial- type procedures that the Code does not specify and in fact specifically rejected (and the Appellate Division erred in making the same mistake). The Code expressly states that hearings “shall not be restricted by the rules of evidence used in a court of law,” R.265, and there is nothing in the Code requiring live testimony to present the charges against a student. The Investigating Panel’s report – which included detailed notes from the Panel’s interviews with Kickertz, Dr. Hershkowitz, 5 In observing that by the time the University corrected this error, the PRB had already determined that Kickertz had committed an ethical violation warranting dismissal, R.651, the First Department apparently misconstrued the nature of the new hearing Kickertz was granted. After Kickertz brought the failure to hold a hearing to the University’s attention, the PRB’s initial determination was vacated and the new PRB hearing involved a de novo review. 14 Dr. Meeker, and Mr. Cornejo, as well as copies of numerous relevant emails – was appropriate evidence in the context of the informal nature of the disciplinary proceeding contemplated by the 2009 Code, and satisfied the Code requirement. Kickertz argues that the 2009 Code is “clear” that the Investigating Panel’s report can only be used to determine whether to initiate disciplinary proceedings, and cannot be a substitute for the presentation of evidence at the hearing, Br. 32-33, but there is no support in the Code for this claim and no basis for the contention that the Investigating Panel’s report cannot serve both purposes. More generally, there is no legal requirement that disciplinary hearings of this kind cannot rely on an investigating panel’s report. Indeed, this Court has held that “evidence may consist of hearsay,” even in the context of disciplinary hearings in the public schools, which are governed by more stringent due process requirements. See Matter of Bd. of Educ. of Monticello Sch. Dist., 91 N.Y.2d 133, 141 (1997); see also Gray v. Alducci, 73 N.Y.2d 741, 742 (1988) (upholding administrative determination based on arresting officer’s written report because “[h]earsay evidence can be the basis of an administrative determination”); People ex rel. Vega v. Smith, 66 N.Y.2d 130, 139-40 (1985) (upholding prison disciplinary decisions based on written misbehavior reports).6 6 To support her contention that “hearsay is not evidence,” Kickertz cites two cases: Waterbury v. Sturtevant, 18 Wend. 353, 360 (N.Y. Ct. Corr. Errors 1837), 15 Kickertz also contends that the undisputed facts show she was denied the right to cross-examine her accusers because the University did not present the live testimony of Dr. Meeker and Dr. Hershkowitz at the hearing. Br. 33, 34. Again, Kickertz is construing the 2009 Code to provide for trial-type procedures that it simply was not intended to provide. The 2009 Code permits the parties to call witnesses, and then permits each side “a fair opportunity to question the witnesses of the other.” R.265. But it does not require any party – including the University – to present live witnesses, including for the purpose of making them available for cross-examination.7 Kickertz argues that the denial of any opportunity to cross-examine her accusers was a violation of the Code’s requirement that the hearing be “conducted and Brun v. Wallach, 42 Misc.3d 1212(A) (Table), 2014 N.Y. Slip Op. 50028(U), 2014 WL 181430 (N.Y. Sup. Ct. Jan. 16, 2014). See Br. 33. She wholly fails to explain, however, how these non-precedential decisions – which have no relation to school disciplinary proceedings – have any relevance here or could possibly override this Court’s holding in Monticello. 7 Kickertz argues that the Code gives the PRB the power to limit the number of witnesses at the hearing, but does not give it the power to do away with witnesses entirely. Br. 34. But no one is suggesting that the PRB would have the power to dispense with witnesses entirely – it is clear that the charged student has the right to present witnesses, subject only to the PRB’s discretionary authority “to limit the number of witnesses” in appropriate circumstances. R.265. The issue here is whether the Code requires the University to present live witnesses to support the charges against a student, or can instead rely on the thorough report of an investigating panel. Nothing in the Code requires such live witnesses. 16 in a manner to achieve substantial justice.” R.265; Br. 34. But Kickertz’ reliance on the constitutional guarantees provided by the Sixth Amendment rights to counsel and confrontation is inapposite here; guarantees of justice or fairness in the disciplinary rules of private universities are “not intended to afford petitioner the full panoply of due process rights.” Matter of Ebert, 28 A.D.3d 315, 315 (1st Dep’t 2006). Further, the University’s implementation of the PRB was a deliberate effort to move away from an adversarial process; the PRB was intended to allow students to “learn to identify unethical behaviors within their class and take responsibility for handling these infractions,” while “foster[ing] an environment that values working relationships.” R.308. The University’s reliance on the Investigating Panel report rather than presenting the live testimony of Dr. Meeker or Dr. Hershkowitz was consistent with this less formal, peer-led approach and does not establish that the PRB’s procedures were inconsistent with substantial justice. Moreover, to the extent Kickertz wanted these witnesses to be present so that she could challenge their testimony, the record before this Court is completely inadequate to determine why these witnesses did not attend the hearing; what steps, if any, Kickertz took to secure their attendance; or what steps the University took to assist her. Most of the correspondence between Kickertz (or her counsel) and Dr. Palatta is not part of the record before this Court. As the University stated in 17 its opening brief, if permitted to answer, it would show that Kickertz’ requests for these witnesses were not denied; rather, the University instructed her that it was her responsibility to contact the witnesses and provide them with the time and location of the hearing, and the University provided her with their contact information. NYU Br. 48. Even if the University had an obligation to facilitate making these witnesses available to Kickertz, the facts in the record provide no basis for the Court to conclude that the University violated that obligation. Finally, Kickertz claims that the undisputed facts show that the University did not follow the 2009 Code because Dr. Palatta allegedly made decisions on procedural issues relating to the PRB hearing, Br. 33, whereas the Code provides that “[a]ll matters of procedure not specified in this Code shall be decided by the Board at its discretion.” R.265. As the University argued in its opening brief, however, the facts on this point are unclear: it is not clear whether Dr. Palatta made these rulings, rather than being the one who communicated them to Kickertz; whether the PRB was consulted on these issues; or whether Kickertz raised these issues again before the PRB during the hearing. See NYU Br. 49. But even if it were true that Dr. Palatta improperly made these decisions, there is no evidence that Kickertz was prejudiced by that fact. These minor deviations from the applicable rules would not warrant the conclusion that the University failed to “substantially comply” with its disciplinary rules. See Zartoshti v. Columbia Univ., 18 79 A.D.3d 470, 471 (1st Dep’t 2010) (finding substantial compliance even though initiation of proceedings and makeup of committee were not in literal compliance with student handbook).8 B. The University Was Prejudiced by Its Inability to Answer. The principal thrust of Kickertz’ brief is that even if the First Department misapplied the BOCES exception, it did not commit reversible error because the University was not prejudiced by its inability to answer. Br. 16-30. As set forth below, these arguments should be rejected. The University suffered substantial prejudice from its inability to answer and present its side of the case, and the First Department’s decision, premised on a one-sided presentation of the facts, should be reversed and vacated in its entirety. 1. The University Did Not Waive Its Right to Defend the Case by Moving to Dismiss. According to Kickertz, the University suffered no prejudice because it received a “full and fair opportunity” to defend the claims by making the motion to dismiss and citing the exhibits Kickertz appended to her petition. Br. 17-20. As 8 Kickertz complains that Dr. Palatta “threatened to abort the hearing” if she did not go along with his rulings, and accuses him of an “usurpation of power.” Br. 33 (citing R.158). However, Dr. Palatta’s letter merely informed Kickertz that the hearing could not proceed if she was unwilling to abide by the applicable rules. In the context of the full correspondence between Kickertz and Dr. Palatta – much of which is not in the record before the Court – his statement was entirely warranted and appropriate. 19 discussed above, this argument should be rejected. The University had no notice that the Appellate Division intended to resolve the merits on the motion to dismiss, and thus had no opportunity to present testimony (from Dr. Meeker, Dr. Hershkowitz, and Dr. Palatta) and exhibits (such as the falsified chart and the minutes of the PRB hearing) demonstrating that the University substantially complied with the 2009 Code and that the decision to dismiss Kickertz was a fair and well-supported decision that cannot reasonably be viewed as shocking. 2. The University Was Prejudiced by Its Inability to Present Its Version of the Facts. Kickertz argues that the University suffered no prejudice from its inability to present evidence on six categories of disputed facts. Br. 20-29. Kickertz’ overarching argument, however, is that the University had no right to present this evidence in response to Kickertz’ Article 78 petition. Kickertz argues that the 2009 Code required the charges and supporting evidence to be presented at the PRB hearing itself, that the University chose to limit its presentation at the PRB hearing to the Investigating Panel report, and that it would be improper for the University to submit to the Article 78 court additional testimony or evidence that it could have submitted during the PRB hearing. Id. at 20-21. This contention should be rejected. Kickertz relies in part on Kelly v. Safir, 96 N.Y.2d 32, 38-39 (2001), which held that judicial review of the disciplinary decisions of the New York City Police Department was limited to whether there 20 was substantial evidence to support the Police Department’s determinations, and that the Police Department’s decision could not be impeached by facts outside the record created before the Department. The majority in the Appellate Division relied on Kelly to support its conclusion that “it would be improper for NYU to produce the actual patient charts for the first time in the article 78 proceeding.” R.656. As the dissent in the Appellate Division pointed out, however, Kelly is inapposite here. R.662-63. Kelly involved the review of administrative agency decisions subject to substantial evidence review. It applies where there have been formal administrative proceedings and a formal record has been created. See CPLR § 7804(e) (requiring respondent in such cases to file “a certified transcript of the record of the proceedings under consideration”). Kelly does not apply to judicial review of the disciplinary decisions of a private university. Unlike a public agency, the University is not required to hold formal disciplinary proceedings, is not required to create a formal record, and can properly use the kind of informal, peer-review proceedings prescribed by the Code here. As the Court held in Tedeschi, a private university is free to adopt whatever procedures it believes best fulfill its educational mission; the University is simply required to “substantially observe” the rules of whatever disciplinary proceedings it has decided to adopt. 49 N.Y.2d at 660. 21 This reasoning has particular force in considering the petition filed by Kickertz here. In determining whether the University complied with the procedures in its disciplinary Code, it is obviously true that the court must examine the proceedings held by the PRB. But the University was not required to create a formal record supporting its decision, and the court is not limited to examining the specific evidence presented to the PRB, as opposed to additional evidence supporting its conclusions and corroborating the testimony upon which it relied. For example, the PRB was entitled to rely upon the findings of the Investigating Panel that Kickertz had created false encounter forms and falsified a patient’s chart; the PRB was not required to examine the evidence itself unless it believed Kickertz had raised legitimate questions about the validity of the Investigating Panel’s findings. Similarly, the PRB was entitled to rely upon the interviews of Dr. Meeker and Dr. Hershkowitz conducted by the Investigating Panel, and was not required to hear their testimony unless the PRB believed there was reason to question it. But when Kickertz later claims in her lawsuit that she did not falsify a patient’s chart, the University is surely entitled to submit for the court’s review additional evidence demonstrating that the Investigating Panel’s conclusion on this point was sound. It makes no sense to suggest, as the Appellate Division majority did, that the University could not submit the false patient chart for the court’s 22 review because it did not submit it to the PRB, when there was no requirement that it be submitted to the PRB in the first place. Any other result would effectively force the University to conduct formal legal proceedings in all disciplinary cases, and take away the discretion that Tedeschi explicitly granted to private educational institutions. Similarly, when Kickertz attacks the credibility of the professors upon whom the PRB relied in reaching its conclusions, the University is entitled to defend their credibility by providing further detail regarding their testimony, and exhibits to support it. This corroborating evidence was unnecessary before the PRB, which was entitled to credit the professors’ testimony without it, but it is essential to permit the University to fairly respond to Kickertz’ petition. Indeed, the Appellate Division majority faulted the University for failing to provide such evidence to corroborate the Investigating Panel’s report. R.652. Moreover, the facts alleged in Kickertz’ petition and the claims she makes go far beyond the narrow parameters of the conduct of the PRB proceedings. For example, Kickertz challenges the decisions allegedly made by Dr. Palatta; in response, the University is entitled to present the court with his full correspondence with Kickertz and her counsel, and his explanation of his role, even though these are not matters that would have been addressed on the record before the PRB. Kickertz also attacks the purposes of the University’s PMV requirement, and 23 asserts that it was solely intended to raise funds for the University; the University is entitled to explain the requirement and the educational purposes it served, even though these are matters that would not have been addressed before the PRB. Finally, Kickertz also claims that the University’s decision to dismiss her shocks the conscience. In responding to this claim, the University is entitled to present the court with the full circumstances of Kickertz’ conduct and the reasons for the PRB’s decision, and is not limited to the bare record of the PRB proceedings. Thus, the University was entitled to offer the documents and testimony discussed below. Indeed, the Appellate Division’s opinion repeatedly relied on Kickertz’ version of these facts in concluding that the University had violated the 2009 Code, and faulted the University for failing to address these facts. R.652-54, 659. a. Evidence of Falsified Documents. Kickertz claims that the University was not prejudiced by its inability to present the false patient treatment chart and encounter forms that Kickertz created. Br. 21. These documents, however, go to the heart of the proceeding against Kickertz. The Investigating Panel charged Kickertz with “forging a fraudulent chart entry” and “forging fraudulent treatment records for multiple patients,” R.117, and Kickertz was found guilty of those charges. Evidence that she forged those documents is highly probative. If Kickertz did forge these documents, as she 24 admitted to the Investigating Panel, see R.116, then the PRB’s finding that she was guilty of the charges is consistent with “substantial justice.” Similarly, Kickertz’ dismissal is not “shocking” if she in fact committed such a serious ethical violation. With respect to the false encounter forms, Kickertz argues that she “admitted to creating” these forms and therefore any additional evidence on this point is “immaterial.” Br. 21. Kickertz attempts to downplay the significance of these forms, but her admission that she created them is devastating to her case, and the University is entitled to explain its significance. While Kickertz attempts to categorize these documents as technical forms relating to academic requirements, see id. at 9, they are in fact false records of treatments she had purportedly provided to clinic patients. The University was entitled to the opportunity to demonstrate that these forms were used as the basis for billing patients and third- party payers like insurance companies, Medicare and Medicaid, and that – if Kickertz’ conduct had not been promptly caught – it could have resulted in fraudulent bills being sent, potentially causing serious legal problems for the University or for Kickertz.9 9 Kickertz also argues that the University cannot produce the falsified encounter forms because they no longer exist, pointing to Dr. Hershkowitz’ email stating that they had been thrown away. Br. 22. But Kickertz neglects to tell the Court that Kickertz herself had thrown them away. See R.114. Thus, to the extent these forms are no longer available, Kickertz cannot complain about their absence, since she is responsible for the inability to introduce them. In addition, even if the 25 b. Evidence Investigators Reviewed The Falsified Documents. Kickertz next argues that the University was not prejudiced by its inability to provide evidence that the Investigating Panel had reviewed the forged chart and falsified encounter forms. However, Kickertz ignores that the Appellate Division specifically faulted the University for the lack of “proof in the record” showing “that those documents were reviewed by the investigators.” R.652. The Appellate Division’s decision shows that the evidence is relevant and that the University suffered prejudice from its inability to submit evidence on this point. Kickertz also suggests that the Investigating Panel could not have reviewed the chart because, had they reviewed the chart, “it would have been obvious that Katie’s student number was not next to the entry as both Hershkowitz contended in his June 1, 2009 email and NYU continues to falsely assert on this appeal.” Br. 22. To support this argument, Kickertz pastes a photocopy of the chart into her brief, purportedly to show that her number is not on the chart. Id. at 23. Kickertz’ submission of a copy of this document in her brief is improper. This document – which was submitted to the Supreme Court on remand from the Appellate Division – is not contained in the record of this appeal. The University attempted to submit the document (and others submitted to the Supreme Court on forms themselves are unavailable, the University is entitled to introduce testimony about Kickertz’ creation and destruction of the forms, as well as other computerized records generated from them. 26 remand) to this Court in its “Compendium of Supreme Court Documents” filed with its opening letter-brief. But Kickertz moved to strike these documents, and this Court granted that motion. See NYU Br. 30-31. Kickertz should not be permitted to rely on a document that she asked to be stricken from the record. If the Court is prepared to consider this document, however, it should be considered in its proper context. The document was submitted to the Supreme Court with the Affidavit of Dr. David Hershkowitz, dated February 11, 2013 (“Hershkowitz Aff.”). The University respectfully submits that, if the Court is going to consider this document, fairness requires that it be considered in the context of Dr. Hershkowitz’ Affidavit and the other exhibits attached thereto. Accordingly, the University submits those documents as an Addendum at the back of this reply brief.10 Dr. Hershkowitz’ Affidavit makes a compelling case that Kickertz falsified the patient chart she included in her brief. As Dr. Hershkowitz explains, this chart is for “Patient D,” one of the four patients that Kickertz falsely claimed to have 10 These documents are taken from the record of Kickertz’ appeal to the Appellate Division. Kickertz asserts that the Court can properly take judicial notice of these documents. Br. 23 n.5. The page numbers referred to in the text refer to the pages of the record of that appeal, which appear at the top of each page. The document pasted into page 23 of Kickertz’ brief can be found at page 145 of that record (rather than at page 132, as Kickertz incorrectly states, see Br. 23 n.5). 27 treated in her encounter forms. Hershkowitz Aff. ¶¶ 7, 13. The chart reflects an entry for June 1, 2009, which states: Pt present for ext to 4S – took to OS w/ faculty supervision; ext w/o complication. gave 1 carp 2% lido w/. 1:100,000 epi via infilt. BP: 122/86, not submitted to pathology, post op inst. given. Br. 23. As Dr. Hershkowitz explains, this entry means that the patient came to clinic 4S (the clinic where Kickertz was assigned) for extraction of teeth; that the patient was taken to the Oral Surgery clinic with faculty supervision; that the teeth were extracted without complication; that the patient was given anesthesia; that the extracted teeth were not submitted to the pathology laboratory; and that the patient received post-operative care instructions. Hershkowitz Aff. ¶ 13. The chart also identifies specifically by number the six teeth that were allegedly extracted that day. See Br. 23 (or p. 145 of the Appellate Division record). However, Dr. Hershkowitz had a staff member call that patient in his presence, and the patient reported that she had not been seen that day. Hershkowitz Aff. ¶ 15. The record overwhelmingly demonstrates that Kickertz made this false entry in Patient D’s chart. Patient D was one of the four patients Kickertz claimed to have treated that day, and the highly implausible six extractions allegedly performed (at $100 per extraction) match up precisely with the $600 credit card payment made by Kickertz. See Hershkowitz Aff. Exs. 2, 3 (pp. 134, 135 of Appellate Division record). Moreover, the encounter forms which Kickertz admits 28 falsely creating were entered into the University’s computer system and generated the “Day Sheet” for Kickertz’ activities that day. See Hershkowitz Aff. Ex. 2 (p. 134 of Appellate Division record). The Day Sheet reflects that Kickertz claimed to have performed these six extractions that day. Id. In addition, although she now denies that she falsified a patient’s chart, she admitted that she had done so to Dr. Hershkowitz, see R.114; to Dr. Meeker, see R.116-17; and to the Investigating Panel, see R.116. Kickertz claims the University has falsely represented that her student number appears next to the false chart entry, and that examination of the document makes this “obvious.” Br. 22. But the University’s statement is supported by the record; Dr. Hershkowitz’ contemporaneous email on June 1, 2009 states that Kickertz’ student number is legible on the chart. R.114. And the document submitted by Kickertz in fact bears this out, rather than supporting her contention. Kickertz’ student number was 09097. See Hershkowitz Aff. Exs. 2, 4, 5 (pp. 136- 37, 139-42 of Appellate Division record). As Dr. Hershkowitz reported, this number appears next to the falsified chart entry, immediately above the scribbled signature on the chart. See Br. 23 (or p. 145 of Appellate Division record). Thus, the University was prejudiced by being denied an opportunity to present the falsified chart to the court, and Kickertz’ claim that she was the only one prejudiced by the absence of this chart, see Br. 23-24, is absurd. In any event, 29 if nothing else this dispute over whether Kickertz falsified a patient chart highlights that the record here was incomplete, and that the facts were not “so fully presented in the papers,” see BOCES, 63 N.Y.2d at 102, to make it appropriate to grant Kickertz’ petition without affording the University an opportunity to answer. c. Evidence Regarding Kickertz’ Responsibility to Call Witnesses. Kickertz next argues that the University was not prejudiced by its inability to submit evidence regarding Kickertz’ responsibility for calling witnesses, on the ground that the University “was responsible for presenting evidence” to the PRB. Br. 24. But as discussed above, nothing in the 2009 Code required the University to present witnesses. Moreover, the Appellate Division faulted the University for denying Kickertz’ request to have Dr. Meeker, Dr. Hershkowitz, or Mr. Cornejo attend the hearing, see R.654, when the University did no such thing. The Appellate Division’s reasoning was based on Kickertz’ version of the facts, which did not reflect her discussions with Dr. Palatta on this point, in which she was provided with contact information for the witnesses and told that it was her responsibility to make arrangements for them to attend. d. Evidence Regarding Who Determined Procedural Matters. Kickertz contends that the University was not prejudiced by its inability to submit evidence on the factual dispute over whether Dr. Palatta made decisions 30 regarding PRB procedures. Br. 24-27. According to Kickertz, the University has not shown prejudice because it did not “affirmatively argue that it was prejudiced from not being able to introduce evidence to show it was not Palatta who actually determined matters of procedure.” Id. at 24. But in its brief, the University specifically pointed out that other evidence not before the court was relevant to who made those decisions. NYU Br. 49. Kickertz also argues that the documentary evidence shows that Dr. Palatta made these decisions. Br. 24-25. But this is not true – while Dr. Palatta communicated these decisions, the record does not permit any conclusion as to who he consulted about them and who made them – and the record contains only a portion of the communications between Dr. Palatta and Kickertz. Indeed, Kickertz’ affidavit in support of her petition alleged that it was the PRB that made some of these procedural decisions. R.76; see NYU Br. 49. Even if the evidence submitted by Kickertz suggests that Dr. Palatta made some decisions regarding PRB procedure, the University was prejudiced by its inability to present evidence showing that (1) he may have consulted with the PRB about these decisions; (2) the PRB made other decisions regarding procedure; (3) Kickertz renewed some of her procedural requests before the PRB; or (4) Kickertz was not prejudiced. As discussed above, a private university need only substantially observe its own disciplinary guidelines, Tedeschi, 49 N.Y.2d at 660, 31 and “literal compliance” is not required. Zartoshti, 79 A.D.3d at 471. Even if Dr. Palatta erred in making some decisions regarding procedure, that would not mean that the University had failed to “substantially observe” the 2009 Code, particularly if Kickertz cannot show any prejudice. See id. (concluding that plaintiff was not prejudiced by fact that initiation of proceedings deviated from procedures in student handbook). e. Evidence Regarding Substantial Justice. Kickertz argues that the University was not prejudiced by its inability to present its version of the facts to show that Kickertz received “substantial justice.” Br. 27. Specifically, Kickertz claims that the substantive evidence against her is irrelevant, since what matters is whether the procedures at the hearing comported with substantial justice. Id. Kickertz’ argument ignores that evidence supporting the charges against her is relevant to whether she was prejudiced from any minor deviation from the rules, and thus whether the proceedings were consistent with substantial justice. See Zartoshti, 79 A.D.3d at 471. For instance, Kickertz has not alleged that she was prevented from presenting documents or witnesses that would prove she was innocent of the charges. On the contrary, she has repeatedly admitted that she “created” the false encounter forms, which is consistent with the Investigating 32 Panel’s finding that she was “guilty of forging fraudulent treatment records for multiple patients.” R.117. f. Evidence Regarding the Reliability of Statements by Dr. Meeker and Dr. Hershkowitz. Finally, Kickertz argues that the University cannot demonstrate prejudice from its inability to provide evidence demonstrating the reliability of the statements Dr. Hershkowitz and Dr. Meeker made to the Investigating Panel. Br. 27. But again, the Appellate Division’s opinion illustrates the prejudice suffered by the University, since the opinion faulted the University for not providing evidence “demonstrating the reliability of the statements Hershkowitz and Meeker made to the Investigating Panel.” R.652. The University could have cured this issue with testimony from Dr. Hershkowitz and Dr. Meeker if it had been entitled to answer and defend the petition. In an effort to show the alleged unreliability of the professors’ statements, Kickertz compares their statements to the Investigating Panel to Dr. Hershkowitz’ June 1, 2009 email. Br. 28-29. However, the alleged inconsistencies that Kickertz points to are minor or non-existent, and relate only to whether Kickertz finally admitted her fraud in her first meeting with Dr. Hershkowitz on June 1, 2009, or in her second meeting. See id. 33 3. The University Was Prejudiced By Its Inability to Present Evidence that Kickertz’ Dismissal Had an Academic Component. Kickertz argues that the University was not prejudiced by its inability to present evidence that her dismissal had an academic component. Br. 30, 35-40. According to Kickertz, the University was not prejudiced because the Appellate Division’s ruling that her dismissal was disciplinary in nature was correct, because the University’s argument that her conduct would have led to a failing grade in her clinical course is made in bad faith, and because the University in any event made this argument on remand before the Supreme Court. Id. at 30. Kickertz’ arguments should be rejected. Kickertz is undoubtedly correct in pointing out that the University followed the procedures prescribed by its disciplinary process, rather than its policies addressing academic deficiencies. Br. 37-38. But that does not mean that there was no academic component to her dismissal, and the Appellate Division erred in granting the petition without giving the University an opportunity to demonstrate it. In view of Kickertz’ unethical conduct, the University could reasonably conclude that she did not satisfy the academic requirements of her clinical course and should be assigned a failing grade. See NYU Br. 51, 66-67. Moreover, the Appellate Division’s decision was plainly colored by its lack of understanding or respect for the academic purposes 34 served by the PMV requirement, R.640-42, 647-49, 659, and the University was prejudiced by its lack of opportunity to demonstrate them. See NYU Br. 66. Kickertz argues that the University is making this argument in bad faith because she was asked to and did work in the University’s clinic over the summer to satisfy her PMV requirements. Br. 38-39. But at that time, the disciplinary proceedings against her were pending, and no final decisions had been reached regarding the validity of the charges against her or the consequences of her conduct. She was asked to complete her clinical requirements because, had the proceedings determined that she was innocent of the charges or that a different disciplinary decision was warranted, she would still need the appropriate clinical credits to receive her degree. The University’s request that Kickertz complete her clinical work is not inconsistent with its position that Kickertz would have failed the course because she falsified documents. Finally, Kickertz’ argument that the University did present this argument to the Supreme Court on remand, after the Appellate Division’s decision, misses the point. The University was prejudiced by the lack of opportunity to demonstrate these academic issues before the Appellate Division ordered her petition be granted. 35 C. The Court Should Vacate the Appellate Division’s Rulings on the Merits, and Remand to the Supreme Court to Permit the University to Answer. Kickertz argues that if the Court finds that the Appellate Division erred in not permitting the University to answer, the Court should remand to the Appellate Division for that court to determine the extent to which the University should be entitled to answer. Br. 46-47. Citing CPLR § 7804(f), Kickertz argues the Appellate Division should exercise its authority to permit the University to answer only “upon such terms as may be just.” Kickertz claims that it would be “unjust” to permit the University to relitigate the issues that the Appellate Division has already decided, in light of “the extensive litigation over the issues and findings of the Appellate Division.” Br. 47. This argument is completely without merit. As the University has demonstrated, the “extensive litigation” to date and the “findings” reached by the Appellate Division have been improperly based solely on Kickertz’ version of the facts. Because the Appellate Division’s decision was unfairly premised on a one- sided record, it should be vacated in its entirety. There is no reason to return this case to the Appellate Division. The case should be remanded to the Supreme Court for the University to answer and for further litigation in the ordinary course. 36 III. The Supreme Court Properly Dismissed Kickertz’ Petition. As the University demonstrated in its opening brief, the decision of the Supreme Court to dismiss Kickertz’ petition was correct, and the Appellate Division erred in reversing it. NYU Br. 54-65. The Supreme Court correctly held that the University substantially complied with the provisions of the 2009 Code. R.8-11; see NYU Br. 58-65. Kickertz does not contend in her brief that the 2005 Code applies, see Br. 30-31, and has apparently abandoned that contention.11 In arguing that the University did not comply with the 2009 Code, Kickertz addresses simultaneously both her claim that the Appellate Division properly granted the petition without permitting the University to answer and her claim that the Appellate Division correctly reversed the Supreme Court’s determination that the University had complied with the 2009 Code. See Br. 30-34. Accordingly, we have already addressed her arguments above, see pp. 13-17, supra, and will not repeat those points here. At bottom, Kickertz’ arguments – that the evidence against her was not presented through live testimony, that the PRB relied upon the hearsay report of the Investigating Panel, and that she was denied the opportunity 11 Kickertz argues that the University has “waived” any argument that the 2005 Code applies. Br. 31 n.8. But the University has never argued that the 2005 Code applies to this case, or that it ever sought to satisfy the requirements of the 2005 Code. It is Kickertz who erroneously introduced the 2005 Code into this case by claiming that it applied. R.649-51. Yet Kickertz now makes no effort in her brief to argue that the 2005 Code applies. 37 to cross-examine her accusers – represent an attempt to impose on the University trial-type procedural protections which are not provided in the Code. As discussed above, the 2009 Code was never intended to provide such trial-type procedures; indeed, it was specifically intended to move away from those procedures and provide a less formal mechanism of peer review. See R.304-08; pp. 13-16, supra. Kickertz argues that the Appellate Division’s conclusion that Kickertz’ dismissal shocked its sense of fairness provides an alternative basis to uphold reversal of the Supreme Court’s order dismissing her petition. Br. 44-45. Kickertz does not argue that the Appellate Division’s “shock the conscience” ruling provides a basis to uphold its decision to grant the petition; she argues only that this provides an alternative basis to find that her petition “stated a claim.” Br. 5. Kickertz argues that the Supreme Court’s holding that her dismissal was not shocking is erroneous because it was “based on [the] belief that it was an undisputed fact that Katie fabricated patient records.” Br. 44-45. But the Supreme Court’s belief was not erroneous; this fact is undisputed, and it is dispositive. Kickertz’ own brief admits that she did create false encounter forms purporting to document fictitious treatments that she had allegedly rendered to patients. Br. 21. Although Kickertz tries to distinguish these documents from “patient records,” the encounter forms are essentially records of patient treatment used to calculate PMV, as Kickertz herself admitted. See R.437. Thus, the Investigating Panel properly 38 described her false encounter forms as “fraudulent treatment records for multiple patients.” R.117. Kickertz’ falsification of these treatment records is a serious ethical breach that could have led to serious consequences. Accordingly, as the Supreme Court recognized, based on the admitted facts, the penalty of expulsion does not shock the conscience. R.14; see NYU Br. 67-69. IV. If the Court Finds that the University Violated the 2009 Code, the Proper Remedy Is a New Hearing Before the PRB. Kickertz contends that the Appellate Division’s decision should be read “to grant the Petition awarding her degree and attorneys’ fees.” Br. 42. However, the Appellate Division’s opinion – while it ordered the petition granted – did not specify that Kickertz was entitled to all the relief she sought, and in fact, expressly denied the costs she sought in her prayer for relief. See R.39, 639. The court’s opinion specified only that it was “annul[ling] the determination expelling petitioner.” R.655. Indeed, this Court has recognized that the Appellate Division’s order did not resolve the relief Kickertz might be entitled to, including her claim for attorneys’ fees. After the University first appealed that order to this Court, the Court dismissed the University’s appeal on the ground that “the Appellate Division order does not finally determine the proceeding.” See January 15, 2013 Order. The parties then returned to the Supreme Court to brief the remedies available to Kickertz, and the Supreme Court entered final judgment on those issues on July 22, 2013. R.636. As Kickertz notes, she has appealed that judgment to the First 39 Department, and the issues about the relief to which she is entitled are pending before that court. Br. 42. Nevertheless, although she acknowledges these issues are not “ripe” for this Court’s resolution, id., Kickertz argues that the Appellate Division has determined that she is entitled to the award of an NYU degree and attorneys’ fees, and urges this Court to affirm these alleged holdings. Br. 42-44. To the extent the Court may consider these issues, they are completely without merit. Even if the Court were to conclude that the University did not substantially follow the procedures in the 2009 Code, the only relief to which Kickertz is entitled is a new hearing before the PRB at which the appropriate procedures are followed. Kickertz argues that, if her dismissal is annulled, she is entitled to obtain her degree from NYU because she satisfied all of its academic requirements. Id. at 43. Kickertz relies on a First Department decision, Eidlisz v. New York University, 61 A.D.3d 473, 474 (1st Dep’t 2009), where the court directed the University to award the plaintiff a degree following a financial dispute between them, on the theory that there was an implied contract between the institution and its students. Kickertz’ reliance on Eidlisz is misplaced, however, because this Court held that the Appellate Division had erred in directing the defendant to award the plaintiff a degree. See Eidlisz v. New York Univ., 15 N.Y.3d 730, 731-32 (2010). This Court concluded that there was insufficient evidence to show that there was 40 an implied contract between the student and the University or, if so, whether the parties satisfied their obligations under that alleged agreement. Id. at 732. The Court also pointed out that there were issues of fact as to whether the decision to deny plaintiff a degree had been based in part on academic considerations. Id. If so, the Court explained, the University’s action would be subject to review solely for arbitrariness or irrationality. Id. Indeed, this Court has never held that a student dismissed for disciplinary or academic reasons may be entitled to a degree from a private university under an implied contract theory. In Matter of Olsson, 49 N.Y.2d 408 (1980), the Court noted that “it has been suggested that there exists an ‘implied contract’ between the institution and its students,” id. at 414, but emphasized that courts should not grant degrees under such a theory “whenever there is some question as to whether the student seeking relief has actually demonstrated his competence in accordance with the standards devised by the appropriate school authorities.” Id. at 416. The Court explained that the courts should exercise the “utmost restraint” before “judicial intervention in academic disputes,” id. at 413, 416, and held that a court order awarding a degree “is an extreme remedy which should be reserved for the most egregious of circumstances.” Id. Moreover, in Tedeschi, this Court set forth the appropriate remedy for a university’s failure to comply with its own disciplinary guidelines: an order 41 directing the University to provide the student with the process that “the guidelines require.” 49 N.Y.2d at 662. That remedy is consistent with the deference owed to private universities in decisions to grant degrees. See Olsson, 49 N.Y.2d at 413; NYU Br. 55. Thus, even if the Court concludes that the Appellate Division correctly held that Kickertz’ Article 78 petition should be granted, the Court should make clear that the only appropriate remedy is for Kickertz to receive the process to which she is due under the University’s 2009 Code.12 12 Kickertz’ claim that she is entitled to attorneys’ fees is meritless. There is no legal basis for an award of attorneys’ fees in this case. The sole ground relied upon by Kickertz is her contention that the University’s defense of this case has been frivolous and completely without merit. Br. 43-44. This argument is plainly incorrect and should be rejected. CONCLUSION For the foregoing reasons and those stated in the University's opening brief, the Court should reverse the Appellate Division's October 11, 2012 decision and reinstate the Supreme Court's February 3, 2011 order dismissing Kickertz' Article 78 petition in its entirety. In the alternative, the Court should vacate the Appellate Division's decision and the substantive rulings contained therein, and remand to the Supreme Court to permit the University to answer the petition and to proceed with further litigation on the merits. Dated: July 7, 2014 New York, New York 42 Respectfully submitted, Ira M. Feinberg Jordan L. Estes HOGAN LOVELLS US LLP 875 Third Avenue New York, NY 10022 (212) 918-3000 Attorneys for Respondent-Appellant New York University , ADDENDUM 126 Affidavit of Dr. David Hershkowitz in Support of NYU's Motion, dated February 11, 2013 [126-131] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK In the Matter of the Application of KATIE KICKERTZ, Petitioner, for a Judgment Pursuant to Article 78 Of the Civil Practice Law and Rules, -against- NEW YORK UNIVERSITY, Respondent. STATE OF NEW YORK ) ss.: COUNTY OF NEW YORK ) Index No. 10346112010 Motion Seq. No. 002 Justice Assigned: Hon. Alice Schlesinger AFFIDAVIT OF DR. DAVID HERSHKOWITZ DR. DAVID HERSHKOWITZ, being duly sworn, states: 1. I am a Clinical Assistant Professor of the New York University College of Dentistry ("NYUCD") and Associate Chairperson of the Department ofCariology and Comprehensive Care, positions I have held since October 1,2008. I respectfully submit this Affidavit in support of the motion of Respondent, New York University ("the University" or "NYU") for an order directing the Clerk of the Court to enter a final judgment in this matter. I have personal knowledge of the facts set forth in this Affidavit. 2. In 2009, I was responsible for supervising fourth-year students of NYU CD in the course in General Dentistry, a clinical course that all fourth-year students were (and still are) required to complete as a precondition to receiving a D.D.S. degree from NYUCD. In that capacity I encountered the Petitioner, Katie Kickertz, and the following events transpired. : 1377807-1 127 In late May 2009 I learned from Dr. Harry Meeker, who at the time was a Group Practice Director for one of the General Dentistry clinics, that Ms. Kickertz, a fourth-year student,had not completed the minimum number of necessary procedures required for the General Dentistry course as ofthe graduation date for her class. At the time it was the practice of NYU CD to measure these procedures by ascribing dollar values to them known at the time as Practice Model Values ("PMV"). Though dollar values were ascribed to PMV, students received PMV credit for procedures that were both never charged to the patient and fees never collected by the College. 3. When I first heard from Dr. Meeker, Ms. Kickertz had left NYUCD and moved to Boston from New York City. Dr. Meeker had informed Ms. Kickertz that she needed to return to do additional work to meet the PMV requirement of the General Dentistry course. It was not at all unusual for fourth-year students to have unfinished requirements that they needed to complete after a formal graduation ceremony. 4. Dr. Meeker provided me with copies of email messages that Ms. Kickertz had written to him in which she suggested that she did not want to actually finish her PMV work but thought she could instead simply pay money to NYUCD. When I leamedofthis I decided to meet with Ms. Kickertz in order to dispel any misconception on her part about the purpose of the PMV requirement, which was to enable students to become competent practitioners by performing procedures on patients in the clinic, not to generate revenue. 5.. Accordingly, as I explained in an email message to my colleague Dr. Mark S. Wolff, a copy of which is annexed to this Affidavit as Exhibit 1, I met with Ms. Kickertz during the morning of June 1,2009 to explain the PMV requirement to her and to tell her that she could meet it only by performing procedures in the General Dentistry clinic. I then left the clinic and returned approximately two hours later, because I wanted to make sure that Ms. Kickertz had a 2 128 sufficient number of patients assigned to her "roster" to enable her to fulfill the PMV requirement. (Ms. Kickertz was a fourth-year student who had been expected to graduate, and typically any patients who have previously been assigned to such students are reassigned to third-year students for continuity of patient care.) 6. When I returned to the clinic I learned that Ms. Kickertz was claiming she had fulfilled this requirement by performing sixteen tooth extractions in the preceding two hours. It was immediately obvious to me that it would have been physically impossible for Ms. Kickertz to perform that much workin a two-hour time frame. Accordingly, I decided to investigate the situation. 7. I learned from the chronological log of work purportedly performed by Ms. Kickertz on June 1,2009 (the "Day Sheet"), a redacted copy of which is annexed as Exhibit 2, that during my two-hour absence from the clinic, Ms. Kickertz had supposedly treated four patients. I have identified these patients on the Day Sheet for purposes of this affidavit and refer to them here as Patients A, B, C and D. According to the Day Sheet, during the morning of June 1, 2009, Ms. Kickertz extracted two teeth from Patient A for a cash payment of $200,extracted eight teeth from patient B for a credit card payment of $800, performed bleaching and provided a home bleaching kit to patient C for a credit card payment of $450, and extracted six teeth from Patient D for a credit card payment of$600. 8. I then determined that Ms. Kickertz had made payments to the clinic using her own credi.t card in the amounts 0($800, exactly the amount supposedly paid by Patient B, $450, exactly the amount supposedly paid by Patient C, and $600, exactly the amount supposedly paid by Patient D. Copies of the credit card receipts reflecting these payments are annexed as Exhibit 3. Although the credit card number has been redacted, it is my understanding that these receipts 3 129 bear Ms. Kickertz's signature. In addition, I learned that Ms. Kickertz had made a cash payment of $200, exactly the amount of cash supposedly received from Patient A. 9. In addition, after I returned to the clinic during the afternoon of June 1,2009, I examined the charts ofthe patients whom Ms. Kickertz had treated earlier in the day according to the Day Sheet. 10. The chart of Patient A reflected that she had once been a patient of Ms. Kickertz's. The chart does not reflect that the patient received any treatment on June 1,2009, however. Instead, the chart reflects that a staff member placed a telephone call to the patient at my request, and in my presence, on that day, in which the patient reported that she was "not at NYUCD at all today." A redacted copy of the chart of Patient A is annexed to this affidavit as Exhibit 4. 11. T~e chart of Patient B reflected that she had once been a patient of Ms. Kickertz and received treatment from Ms. Kickertz. There is nothing in the chart to reflect that Ms. Kickertz extracted any teeth from Patient B on June 1,2009, notwithstanding the inconsistent entries on the Day Sheet. At my request, a clinic staff member telephoned this patient and learned that she was not present at NYUCD on June 1,2009. A redacted copy of the chart of Patient B is annexed to this affidavit as Exhibit 5. 12. The chart of Patient C reflects that he was once a patient of Ms. Kickertz. Nothing in the chart suggests that this patient saw Ms. Kickertz in the clinic on June 1,2009, however, much less that she gave him a bleaching treatment or bleaching kit on that day as the Day Sheet suggests. A redacted copy of the chart of Patient C is annexed as Exhibit 6. At my request,a clinic staff member telephoned this patient and learned that he was not present at NYUCD on June 1,2009. 4 130 13. The chart of Patient D, a redacted copy of which is annexed as Exhibit 7, is the most troubling piece of evidence that I found on June 1,2009. In this patient's chart, Ms. Kickertz created a fictitious record of non-existent procedures. Patient D never in fact received any treatment from Ms. Kickertz. Although Ms. Kickertz did not in fact see Patient D on June 1, 2009, she placed the following fictitious entry in the patient's chart: Pt present for ext to 4S - took to OS wi faculty supervision; ext wlo complication. gave 1 carp 2 % lido wi. 1: 1 00,000 epi via infilt. BP: 122/86, not submitted to pathology, post op inst. given This entry indicates that a patient came to clinic 4S, the clinic to which Ms. Kickertz was assigned, and that Ms. Kickertz took the patient upstairs to the Oral Surgery clinic with a faculty supervisor; that Ms. Kickertz then extracted six teeth from the patient without complication after giving the patient anesthesia consisting of 1 carpule of lidocaine with 1: 100,000 epinephrine by infiltration; that the patient had a blood pressure reading of 122/86; that the extracted teeth were not submitted to the pathology laboratory; and that the patient received post-operative care I instruction. 14.· On the chart of Patient D, Ms. Kickertz identified six teeth that she claimed she had extracted on June 1,2009, and placed an illegible signature in the space where she should have recorded her own name. She also placed an illegible signature in the space allotted for signature by a supervising faculty member. 15. After I reviewed the chart of Patient D on June 1,2009, I asked a clinic staff member to contact Patient D, in my presence. The staff member then recorded in the chart what had transpired: she called the patient, who reported that she had not been seen today. In short, the chart entry reflecting treatment Ms. Kickertz supposedly rendered to Patient D on June 1, 2009 was entirely fictitious. 5 131 16. After I obtained the Day Sheet, the credit card receipts described in ~ 8, above and the chart of Patient :0, and after I verified that none of Patients A, B, C or D had been present in the clinic on June 1,2009, I confronted Ms. Kickertz with the facts. I explained the gravity of the situation to Ms. Kickertz, including the potentially criminal nature of creating a false treatment record for a dental patient. I strongly encouraged Ms. Kickertz to tell me honestly what had occurred. 17. In response, Ms. Kickertz admitted to me that she had not seen any of the patients earlier that day, that she had falsified the record of Patient D, that she had paid for all of the "treatment" herself either in cash or with her credit card, and that she had given a clinic staff member forms suggesting that she had provided the treatment recorded on the Day Sheet for Patients A, B, and C. 18. When an Investigating Panel of the Peer Review Board of NYU CD questioned me about these events on June 4,2009, I recounted the facts described above to them. 19. No student who falsified patient records as Ms. Kickertz did on June 1,2009 could obtain a passing grade in the General Dentistry clinic. Sworn to before me this iLIA- day of February, 2013 ~i~&' Ul1L~Jnc.:> A-gP1NELLI NOTARY PUBLIC STATE OF NEW YORK Lie, #01SP5002121 NEW YORK COUNTY MY COMMISSION EXPIRES 2-7-20L 132 Exhibit 1 - Letter from David Herskowitz to Mark Wolff, dated June 1, 2009 [132- 133] -----Original Message----- . From: David H Hershkowitz Date: Mon, 01 JUll 2009 17:09:55 To: 'Mark S Wolff Subject: Student Concern Hello Mark: I am sorry to inform you of the following events that have occurred at the College today. This is in regards to Rebekah Kickertz #09097 a student in Harry Meeker's Practice .. The student had returned to complete her PMV obligation that was required in order to graduate. The following events then transpired. . 1) I met with the student and Dr. Meeker and informed the student what was expected of her and why. I left her 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. 2) Upon returning to the Practice approximately 2 hrs later I was informed by Dr. Meeker and Ivan(Manager) that the student would be attaining her PMV today as she already completed 16 extractions and had a bleaching appt. for this afternoon. I did not think t~is was possible and started to look into the treatment that was supposedly performed. Ivan lead me to the receptionist. 3) The treatment was paid for by the student on her credit card along with $200 cash given by the student. Itwas for 4 different patients. Encounter forms were given back to the student for completion by the receptionist who told me the treatment was done inO.S. 4) Oral Surgery has no record of these extractions. I had Erika (OS Manager) call the patients. Two have already responded and stated they were not treated at the College today. Review of the chans shows no entries for today in 3 of them. The fourth chart has treatment entered indicating i5 extractions were performed today. Both student and faculty signatures are illegible although the student number is legible. 1 133 5) The chart mentioned above was one of the patients who when contacted stated that she was "Not at the College Today" although she has an appt for next week. 6) Student was contacted by Dr. Meeker in my presence and told to return to the school for the afternoon session. 7) Upon her arrival I met with the student in the presence ofIvan and Dr.Meeker. When confronted with the charts and her fraudlent entry of treatment and signatures, the student finally told the truth and admitted that she "Did Not Perform any Extractions" and that she fraudlently entered treatment in that one chart and fraudlently signed an illegible signature to it. She admitted as well as to fraudlently signing a "start" on the encounter so the receptionist would enter the treatment and now she admits to throughing the encounters away when she received them back. I informed the student ofthe gravity of her situation. 8) The student called Ivan soon then after and asked to speak with me alone. I met the student approx. 112 hour later in the classroom on the 4th floor. Again the student stated that she was Sorry; that she had not performed any treatment that day; that she was being as honest as she could now; that she was in panic mode and didn't think. Again I informed her of the gravity of the situation. . 9) The student during the course of our first discussion (with Dr. Meeker and Ivan present) made alegations which when investigated proved to be false. The student can be reached at cell # Thank-you Dave David Hershkowitz D.D.S. Clinical Asst. Professor Associate Chair Dept. of Cariology and Comprehensive Care 2 134 Exhibit 2 - Day Sheet (Chronological) 06/01/2009 [134] I / I DAY SHEET (CHRONOLOGICAL)· o~~J ~ f'<'ft~ c() r )"i 2A DDS Oral Surgery 06101/2009 Providers 09097 - 0909q. Date: 06/01/2009 DATE· PATIENT NAME TH CODE DESCRIPTION 06/01/2009 ~ P' I r32 07140 Extraction-erupt tooth/exp rt 06/01/2009 atlent A 07140 Extraction-erupt tooth/exp rt 06/0112009 Cash Payment ·Thank You 06/0112009 , 1 07140 Extractlon·erupt tooth/exp rt 06/01/2009 2 07140 Extraction-erupt tooth/exp rt 06/01/2009 3 07140 Extraction-erupt tooth/exp rt . 06/01/2009 4 07140 Extraction-erupt looth/exp rt 06/01/2009 13 07140 Extraction-erupt tooth/exp rt 06/01/2009 14 07140 Extraction-erupt tooth/exp rt 06/01/2009 15 07140 Extraction-erupt tooth/exp rt 06/01/2009 16 07140 Extraction-erupt tooth/exp rt : 06/01/2009 Credit Card Payment -Thank You 06/01/2009~ , UA 09972 ' Bleaching Cilalr side (per arch) , 06/01/2009 Patient C I LA 09972 Bleaching Chair side (per arch) 06/01/2009. . UA 09974 Home Bleaching Per Arch 06/01/2009 LA 09974 Home Bleaching Per Arch 06/01/2009 Credit Card Payment .Thank You 06/01l2009~ 4 07140 Extraction-erupt tooth/exp rt 06/01/2009 5 07140· Extraction-erupt tooth/exp rt 06/01/2009 Patient D 6 07140 Extraction-erupt toolh/exp rt 06/01/2009 11 07140 Extractlon·erupt tooth/exp rt 06/01/2009 12 07140 Extraction·erupt tooth/exp rt 06/01/2009 1~D7140 Extraction-erupt loolh/exp rt 06/01/2009 Credit Card Payment -Thank You '1' l-~ I --t. I ! GRA'%JlfoTALS: (\ CV..0V{-,V . CHARGES; PAYMENTS; CREDIT ADJUSTMENTS; CHARGE ADJUSTMENTS; FINANCE CHARGES; LATE CHARGES; CHARGES BILLED TO INSURANCE: NEW PATIENTS: PATIENTS SEEN: AVG PROD PER PATIENT: AVG CHG PER PROCEDURE: PREVIOUS BALANCE BALANCE AS OF 06/01/2009 NET CHANGE CURRENT 2050,00 -2050.PO 0,00 0,00 0,00 . 0.00 0,00 o 4 512,50 102,50 5607.94 5607,94 0.00 l ~ \~ ) /)"\ ·/l/J i~GU .~ Page: , CHARGES PAYMENTS BT PROVPHONE# 100.00 1 09097 100,00 1 09097 -200,00 1 09097 100,00 1 09097 100,00 ~ 1 09097 100.00' . 1 09097 100,00t¥\ 1 09097 100,00 1 09097 100,00 . 1 09097 100,00 1 09097 100,00 1 09097 -800,bo 1 09097 175.00 1 09097 175,00 1 09097 50,00 1 09097 50,00 1 09097 -450,00 1 09097 100,00 1 09097 100,00 1 09097 100,00 1 09097 100,00 1 09097 100,00 1 09097 100,00 1 09097 ·600.00 1 09097 135 Exhibit 3 - Receipts [135] ,I ~. HYU OEHTRl cm!V 345 EAST 24H~~ET IlEt.! VORK, iW 1001e0000 G01766L1l Oii50mu1995 [OTAL , :. / I'iU;:CHAIiT co'J5V )B{jl~. iJ~j -5il~ ~~ !.a~)}.u~ . v:::?;~?A NYU DEllTAl ClItlIC 345 EAST 24TH STREET IIEIJ YORK, IIY 100100000 / . lERi'iIIIAL 10: 001766;'11 0050416D 19~5 IIERCHAIii U~ IiIi, ~1~-~" ••• "8398 SALE m.; 67;11 P.RICH: OOlm MOTt£: OsH1 [;41[: .lUI! Oi, O~ TINE: 11:1.7 5Q: 301 iiUT~ ilU: 0153,'g TOTAL ·$450.00 IIYU DElIlAL CLlm .. 34JT~-B;· ~4TH STREET 11m 'YORK, !I~ 1001QOCOO :ERrlIllAL 1D: NERCP.AIH ff.: T OT f~L ::60["Ot: . :0.03 Sb[iO~ u0 136 Exhibit 4 - Progress Notes of Patient A [136-138] New York University College of Dentistry, 345 East 24th Street, New York, NY 10010 \ .. ~ , - , PROGRESS NOTES . "\l L--Ch_ar_t #_Redacted Copy d \'" PATIENT NAME: FOR EACH ENTRY NOTE: 1. The location of visit in clinic column 2. Review of medical history and any changes PageLL~ \~ 3. New complaints, findings or diagnosis 4. Treatment provided during visit 5. Planned treatment for next visit Date Tooth Clinic TreatmentiProgressNotes Student Faculty Area Name - ID# ("'$ig - jp# ) ·O~ 0- 4'7 / \ \ .•. o 1<1 o~~/ tlfJl 0~~).£~ ~~~ -., \1'" """ .'l,. ~d 61U~ ~p~ , Sl. J, Redacted Copy :\1 :YI s.-r~~VI\ ~.~5 \. ~ J I I \ I I IQ.. \ 0 , ~ / , , -. , I I I ~I I " e.'.!i " &J~~ 1J' "..... Kicke,r~6 (..) ~ i 0/1 o I~ 11-- I'") I Ctl AzI'} a: (ocr .]j ./'1~ D tis Redacted Copy I I I I I j II I -' . ,. :n .1' c) Ii 01<719 l I I K,'cKe fez I v / I ,n. '-;T, f) I I I " ~~ 2-IA ~ 57.,.) I i7 . .-nA :::.:r =7'0 J1--,"' 11.- • ..~ .. ~" .-. --:--- p\--~ I ' I'" :-1 I I I I: I <1-; I------ I r---, BeQaGt"~ilpy "., '" .. " ,,' ,,/1 Rd'~ ; eJl;f;\!~~'" ._"",,,,,, ,': ,'1 DAWO I ,-- -.. i 8\ '.tOOt .• ',m;o BEfi h ! QU'll: r.tJ ~ f'duA2JV DffiR: - I '1- -. _ ...... __ ... I - I .. ' R~ LEHANE DDS! / - I U'~fl:~., ,~~)itoPY # Refills (numerica]J~WJ4882 p .. "Ive .".",,""..... JlA .. ~~ I .-'.-- - a.eda~t .' 'OilV - '~/LI'~ l< 137 New York University College of Dentistry, 345 East 24th Street, New York, NY 10010 PROGRESS NOTES FOR EACH,ENTRY',NO~:;;" 1. The locati~ririf; vis'itiri~li~icc~lu~iI 2. Review of medical history and any changes 3. New complaintS, findings or diagnosis 4. Treatment provided during visit 5. Planned treatment for next visit Page# __ Treatment/Progress Notes ! Date Tooth Clinic Area 1- , 1 0 ~~ f![ , , ~ ~ Faculty rl . - ID# l S Q4~~ ~ -"'Ql i , -.. ~ J I 1 I L~ YrKl , r f1 f '1, h-! '--'-j'--l I-rj TIIIj I e-!JJI I 1 t Version 812()n7 D~_" T'o_ .... n'........ ,.... 138 L o o New '(ork University College of Dentistry, 345 East 24th Street, New York, NY JOOIO PEOGRESS NOTES FOR EACH ENTRY NOTE: PATIENT NAME: 1. The location of visit in clinic column 2. Review of medical history and any changes 3. New complaints, findings or diagnosis 4. Treatment provided during visit 5. Planned treatment for next visit Clinic Treatmeut/Progress Notes .. ,;' , V i J ~. . .. - . 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