In the Matter of Katie Kickertz, Respondent,v.New York University, Appellant.BriefN.Y.February 10, 2015NEW YORK UNIVERSITY A private university in the public service Associate General Counsel OFFICE OF LEGAL COUNSEL ELMER HOLMES BOBST LIBRARY 70 WASHINGTON SQUARE SOUTH NEW YORK, N.Y. 10012-1091 TELEPHONE: (212) 998-2258 FACSIMILE: (212) 995-3048 E-MAIL: nancy.kilson@nyu.edu December 10, 2013 By Hand Honorable Judges of the New York Couit of Appeals 20 Eagle Street Albany, New York 12207-1095 Re: Rule 500.11 Letter Brief of Appellant New York University Matter of Kickertz v. New York University APL-2013-00248 New York County Clerk's Index No. 103461/2010 To The Honorable Judges of the New York Couit of Appeals: We respectfully submit this reply letter in support of the pending appeal of the Appellant, New York University ("NYU" or "the University"), and in response to the November 19, 2013 letter submission of Respondent, Katie Kickertz ("Kicke1tz Ltr."). A. Kicke1tz' s Asse1tions That This Court Lacks Jurisdiction Over This Appeal Are Groundless Kickertz offers several erroneous arguments for dismissal of this appeal on jurisdictional grounds. First, Kicke1tz asse1ts that this Court lacks appellate {00023980.3} jurisdiction because the dissent in the Appellate Division supposedly "turns on an issue of fact .... " Kickertz Ltr. at 12. It is clear from the Appellate Division's decision on its face, however, that the dissenters relied on a purely legal issue, namely whether CPLR 7804(f) and this Court's related decisions required the Appellate Division to refrain from granting the petition when the University had not had an opportunity to answer it. In re Kickertz, 99 A.D.3d 502, 513-14, 952 N.Y.S.2d 147, 157-58 (1st Dep't 2012), appeal dismissed, 20 N.Y.3d 1004 (2013). Kickertz's attempt to recast this purely legal question as factual one so as to obtain dismissal of this appeal on jurisdictional grounds is baseless. Second, Kickertz incorrectly suggests that the dissenting opinion in the Appellate Division was not sufficiently favorable to the University to justify the exercise of appellate jurisdiction. Contrary to Kickertz' s asse1tions, however, the dissenters' statement that they would have allowed reinstatement of the petition does not imply that they predetermined which party should ultimately prevail on the merits once issue was joined. Thus, unlike Christovao v. Unisul-Uniao de Coop. Transf de Tomate do sul do Tejo, S.C.R.L., 41N.Y.2d338-339, 360 N.E.2d 1309, 1309-10, 392 N.Y.S.2d 609, 609-610 (1977), on which Kickertz relies, this is not a case where the dissent merely "concutTed in the result" of the majority opinion on an alternative ground. The dissenters here clearly did not concur in the result. {00023980.3} 2 Kickertz's third jurisdictional argument, that the University was somehow "not prejudiced" by the denial of an opp01tunity to respond to the petition on the merits, Kickertz Ltr. at 18, is simply nonsensical. Any litigant suffers prejudice if a court accepts wholesale the factual submissions of its opponent while refusing to allow that litigant to be heard on the merits. Here, given a chance to respond to the petition, the University would show that Kicke1tz's legal and factual allegations have no basis. Kicke1tz is well aware of this reality and therefore asks this Court to strike the University's Compendium of Supreme Court documents from the record and to refuse to consider it. Moreover, it is evident from the majority opinion of the Appellate Division on its face that the decision of the University's disciplinary body was not before that comt. In re Kickertz, 99 A.D.3d at 507, 952 N.Y.S.2d at 152. Kicke1tz's asse1tions that the record before the Appellate Division was complete are thus unsupp01table. Kickertz's final jurisdictional argument is that the University fai led to "preserve" for appeal its argument that the Appellate Division should not have granted the petition without permitting the University an opportunity to answer. It is hornbook law, however, that "where an e1Tor occurred in the appellate division and so did not exist at the time of the appeal to that comt, it may be considered by the cou1t of appeals even though it was not raised in the appellate division." 11 {00023980.3} 3 Carmody-Wait 2d § 71:112 (2013 ed); People ex rel City of New York v. Yale, 249 N.Y.150, 153, 163 N.E.132, 133 (1928). The University is therefore certainly entitled to raise on appeal the issue of the Appellate Division's improper preclusion of the University's right to be heard on the merits. B. The Appellate Division Erred As A Matter of Law When It Granted The Petition Without Allowing The University To Answer On The Merits Kicke1tz asks this Comt to affirm the decision of the Appellate Division, suggesting that any factual issues the University may wish to raise in response to her Aiticle 78 petition are somehow "not relevant," because she asse1ts that the relevant facts are both "undisputed" and incapable of being disputed. Kickertz Ltr. at 15-16. Similarly, Kicke1tz asserts that the Appellate Division's refusal to allow the University to answer before a final determination of the merits was "harmless enor." Kicke1tz Ltr. at 21. The Appellate Division's approach was impermissible, as a matter of law, both under CPLR 7804(f) and pursuant to this Comt's teachings in Matter of Nassau BOCES Central Council of Teachers v. Board of Cooperative Educational Servs. of Nassau Co., 63 N.Y.2d 100, 103, 469 N.E.2d 511, 512, 480 N.Y.S.2d 190, 191 (1984) and Matter of Bethelite Community Church v. Department of Environmental Protection of the City of New York, 8 N.Y.3d 1001, 1002, 870 N.E.2d 679, 679, 839 N.Y.S.2d 440, 440 (2007). Authorities on which Kicke1tz {00023980.3} 4 relies in her letter fail to suggest otherwise. Tamsen v. Licata, 94 A.D.3d 1566, 1569, 943 N.Y.S.2d 341, 344 (4thDep't 2012), and Matter of Dougherty v. Mammina, 261A.D.2d400, 401, 687 N.Y.S.2d 287, 288 (2d Dep't 1999), where the courts found the undisputed facts sufficiently well-established in the record that there could be no prejudice from denial of an opportunity to answer, bear no resemblance to this case. Indeed, here the Appellate Division explicitly noted disputes as to matters such as when Kickertz first lea1ned of her academic deficiency, whether she had an opportunity to remedy the situation without resorting to dishonesty, and whether any extenuating circumstances justified her admitted falsification of ce1tainrecords. In re Kickertz, 99 A.D.3d 502, 514, 952 N.Y.S.2d 147, 157-58 (1st Dep't 2012). The University was entitled to an oppmtunity to address all these issues, among others, before any resolution on the merits. C. The Appellate Division E1Ted As A Matter of Law When It Failed To Uphold The University's Disciplinary Determination The University showed in its opening letter that the Appellate Division improperly substituted its views regarding what disciplinary procedures should apply for the University's actual rules, and, etToneously applied a superseded version of the applicable Code of Ethics. Moreover, the Appellate Division improperly judged the University's procedures based on Kicke1tz's one-sided factual recitation, when the decision of the disciplinary body was not before the {00023980.3} 5 court. Kickertz's response on these points is to argue that her version of the facts is "indisputable," Kickertz Ltr. at 26, and that this Court must accept her one-sided and self-serving interpretation of the University's Code of Ethics. These arguments are untenable. The Appellate Division's determination that the University failed to follow its applicable disciplinary rules was legally erroneous, for the reasons stated in the University's October 18, 2013 letter (at 23-27). The Appellate Division's decision should, therefore, be reversed. 1 If this Court does not see fit to reinstate the Supreme Court's dismissal order but instead directs fmther proceedings in the Supreme Court, as a matter of law, Kickertz's factual allegations will not be beyond the realm of legitimate dispute merely because the University chose to challenge the legal sufficiency of her aiticle 78 petition on a motion to dismiss. It is fundamental that, on a motion to dismiss, "the facts pleaded in the complaint must be taken as true and are accorded every favorable inference - only for purposes of deciding this procedural staging of the controversy . . . . " Maas v. Cornell Univ., 94 N.Y.2d 87, 91, 721N.E.2d966, 968, 699 N.Y.S.2d 716, 718 (1999) (citations omitted) (emphasis added). A In the event that this Court upholds the Appellate Division's determination that the disciplinary proceedings against Kicke11z were improper, she may choose to replead discrimination claims that she previously asse1ted against the University and certain individuals in a separate plenary action. See Kickertz v. New York University, 110 A.D.3d 268, 971 N.Y.S.2d 271, 281 (1st Dep't 2013). Contrary to assertions in Kickertz's letter, these discrimination claims are not presently pending before any comt. { 00023980.3} 6 litigant that moves to dismiss does not thereby forfeit its right to make factual submissions if the dismissal motion does not succeed or where, as here, it initially succeeds and is reversed on appeal. D. The Appellate Division Erred As A Matter of Law When It Failed to Defer To the University's Academic Determination That Kickertz Was Unfit to Receive A Degree The University also showed in its opening letter that the Appellate Division ened as a matter of law when it substituted its judgment for the College's assessment ofKickertz's academic fitness to receive a DDS degree. Kickertz's response is to suggest that the only question for review by the Appellate Division and in this Court is whether the University followed its applicable disciplinary rules under Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 404 N.E.2d 1302, 427 N.Y.S.2d 760 (1980). This approach is incorrect as a matter of law. As an academic institution, the University is vested with the discretion to determine whether its student is academically qualified to receive a degree, and this is an entirely distinct question from whether the University's disciplinary process was proper. Moreover, the law is clear that "in the absence of demonstrated bad faith, arbitrariness, capriciousness, inationality or a constitutional or statutory violation, a student's challenge to [an] academic determination relating to a genuine substantive evaluation of the student's academic capabilities, is beyond the scope of judicial review . . . . " Susan M v. {00023980.3} 7 New York Law School, 76 N .Y.2d 241, 247, 556 N.E.2d 1104, 1107, 557 N.Y.S.2d 297, 300 (1990) (citations omitted). The Appellate Division could not properly overtmn the University's academic determination based on its disagreement with the University's application of its disciplinary rules. For this reason too, the decision below was improper as a matter of law and should be reversed. E. The Appellate Division Erred As A Matter Of Law When It Found That The Penalty The University Imposed On Kickertz Was Shocking To The Sense of Fai1ness The majority justices of the Appellate Division felt "compelled to express [the] view that ... the penalty of expulsion shocks one's sense of faiiness," and devoted several pages of their opinion to analysis of this issue, relying entirely on Kickertz's one-sided factual presentation. Kickertz suggests that this Comt should not consider the appropriateness of this ruling, supposedly because it was unappealable "dictum," "harmless error," or somehow "not dispositive." Kickertz Ltr. at 29-31. The Appellate Division's ruling was incorrect as a matter oflaw, however. The authorities on which Kickertz relies (Kickertz Ltr. at 31-32) all concern termination of employment. None of these authorities suggests that a decision not to confer a DDS degree on a student such as Kickertz who admittedly falsified patient records to make it appear that she met the requirements of a clinical course is in any way shocking to the judicial conscience. {00023980.3} 8 Conclusion For the foregoing reasons, this Court should reverse the Appellate Division's October 11, 2012 Decision, set aside the Supreme Court's resulting July 24, 2013 Judgment, and reinstate the February 14, 2011 Decision of the Supreme Court, or, at a minimum, remand to the Supreme Court for further appropriate proceedings. cc: Jeffrey K. Brown, Esq. Leeds Brown Law, P.C. One Old Country Road, Suite 347 Carle Place, New York 11514 {00023980.3 } Respectfully submitted, New York University Office of General Counsel Bonnie Brier, Esq., General Counsel By· ' ~L '---., Nancy:lson, Esq. ·-....,.. 9 Associate General Counsel 70 Washington Square South New York, New York 10012 (212) 998-2258 Attorney for Respondent-Appellant, New York University