In the Matter of Katie Kickertz, Respondent,v.New York University, Appellant.BriefN.Y.February 10, 2015 1 LEEDS BROWN LAW, P.C. One Old Country Road, Ste. 347 Carle Place, NY 11514 (516) 873- 9550 ________________________________ Attorneys at Law________________________________ November 19, 2013 VIA FEDERAL EXPRESS and ELECTRONIC FILING Honorable Judges of the New York Court of Appeals 20 Eagle Street Albany, New York 12207 Re: Matter of Kickertz v. New York University APL-2013-00248, Respondent’s Rule 500.11 Letter New York County Clerk’s Index No. 103461/2010 Dear Honorable Judges: We represent the Petitioner-Respondent, Katie Kickertz, who filed an Article 78 petition in New York County Supreme Court challenging Respondent- Appellant, New York University’s (“NYU”), dismissal of Kickertz from its School of Dentistry. On NYU’s motion, the trial Court dismissed the Petition, but the Appellate Division reversed that decision and granted the petition. NYU purports to appeal, as of right, from the Appellate Division, First Department decision. NYU’s appeal should be dismissed because jurisdiction is not proper. The dissenting Justices of the Appellate Division did not dissent on a matter of law. Rather, they disputed whether factual issues existed such that NYU should have 2 been permitted to answer. Moreover, the dissent agreed that the trial’s court order dismissing the Petition was error, thus, the dissent’s view was not in favor of NYU. Accordingly, this Court lacks jurisdiction to hear the appeal. Notwithstanding, the Appellate Division’s decision was correct in all respects. The Appellate Division properly found that, based on the undisputed and indisputable facts in the developed record, NYU did not comply with its published guidelines related to student discipline by failing to provide Kickertz with substantial justice. To the extent any error exists, it is harmless because it did not relate to the disposition of the case.1 STATEMENT OF FACTS In fall 2005, Kickertz became a student at the NYU College of Dentistry. (R. 24).2 In fall 2007, NYU announced a new Group Practice Model (“GPM”) requirement, which required, as a condition of graduation, that students gain clinical experience by providing actual dental treatment to real patients. (R. 60). The patients paid money to NYU for the treatment received. (R.60). Credits 1 Kickertz reserves all arguments made to the lower courts not addressed herein. 22 N.Y.C.R.R. § 500.11(f). 2 Citations to (R. __) indicate references to the record submitted to the First Department. Citations to (Comp. __) indicate references to the “Compendium of Supreme Court Documents” submitted to this Court by NYU. Such compendium is the subject of a motion to strike because much of it contains documents which were not in the record before the Appellate Division and are thus inappropriate to review here. References herein to the Compendium are not intended to waive Kickertz’s objections to the Compendium, but are made in case the Court denies the motion to strike and reviews and/or relies on documents in the Compendium. 3 earned for the GPM were known as Practice Model Value credits (“PMV Credits”), and correlated to the dollar value of dental services rendered by the student. (R. 60-61). Under the GPM, Kickertz was required to accrue PMV credits corresponding to $21,000 in dental services in the fourth year of instruction, in addition to $16,000 beginning in the second year. (R. 60-61). In June 2007, Dr. Harry Meeker was assigned as Kickertz’s group practice director. (R. 61). In this role, Meeker was responsible for monitoring and ensuring that Kickertz was able to fulfill all of her graduation requirements, including those in relation to the accrual of PMV credits. (R. 61, 435-436). Incident to these duties, Meeker was required to provide Kickertz with periodic Student Progress Reports, which documented any outstanding PMV credit obligations. (R. 61, 86, 90). However, Meeker never provided Kickertz with any Student Progress Reports, nor did he ever meet with her concerning her PMV credits. (R. 60). While Meeker was supposed to facilitate Kickertz’s accrual of PMV credits, he instead blocked her from doing so. For example: Meeker repeatedly refused Kickertz’s requests that patients be assigned to her so that she could obtain PMV credits. (R. 62). Meeker limited Kickertz’s opportunities to obtain PMV credits by arbitrarily refusing to permit her to work with faculty other than himself. (R. 62). 4 Meeker refused to sign Kickertz’s lab processing papers and refused to admit her dental impressions to the lab if she worked with faculty other than him. (R. 62). Meeker demanded that Kickertz not e-mail his supervisor, Dr. Wolff, with her concerns or pleas for assistance. (R. 62). On May 25, 2009, one night before Kickertz was to graduate from NYU, Meeker e-mailed her, stating that he was “uncertain” about her status for graduation, and asking that she see him to clear the confusion. (R. 64, 98). While Kickertz immediately replied to Meeker’s e-mail, she received no response. (R. 64-65). The next morning, only fifteen minutes before the graduation procession was to commence, Meeker, for the very first time, told Kickertz that she was short on PMV credits. (R. 65).3 Notably, Meeker had previously ordered Kickertz to transfer certain patients from herself to other students, stating that Kickertz had already completed her PMV credit requirements, and other students needed the patients to complete their requirements. (R. 63). Kickertz then broke into tears, and Meeker told her not to worry about it, that he would “take care of it,” that she should not tell her family anything was wrong, and to find him at the reception to resolve the matter. (R. 65). 3 The time of the first notification is disputed by the parties. As discussed below, this fact was not dispositive so it is not relevant to the resolution of this appeal. However, the Compendium contains an admission that Kickertz was in fact not notified until just before graduation. (Comp. 163 (letter from College Review Committee expressing concern about the late notification to Kickertz about the PMV shortfall: “the first official e mail from the GPD presented as evidence was from May 25th, at the time of graduation”)). 5 On May 27, 2009, Kickertz received an e-mail correspondence from Meeker, stating “Your PMV requirement as of today is $19,093 and the target is $21,000. You should come back to make your requirement before your diploma is awarded.” (R. 65, 101). On May 29, 2013, Meeker sent another e-mail to Kickertz, repeating same, but in a harsh, accusatory tone. (R. 66, 99-100). On May 30, 2009, Kickertz e-mailed Meeker, notifying him that she had been “dealing with medical issues the past couple months,” and requested a reasonable accommodation for her medical disability consisting of permission to satisfy her PMV credits by purchasing home bleaching treatments for use on her family members. (R. 66, 102). Kickertz also highlighted the fact that she did not meet the PMV credit requirement as a direct result of Meeker having reassigned her patients to other students on the basis that she had already fulfilled the requirement, and other students needed the credits in order to fulfill their requirements. (R. 66, 102). Meeker refused Kickertz’s request for a reasonable accommodation. (R. 66). On June 1, 2009, Meeker told Kickertz in his office that everything would have been taken care of, had she not previously made his supervisor, Dr. Wolff, aware of the situation. (R. 66). Meeker accused Kickertz of making him look bad, and that he would be getting a negative performance evaluation as a result. (R. 66). At that point, the Assistant Chair of the program, Dr. Hershkowitz, entered 6 and the two informed Kickertz that she could not treat any patients to fulfill her PMV credit requirement because all available patients were already assigned to other students. (R. 66, 115). Meeker instructed Kickertz to satisfy her requirement by paying the cost of the dental services directly to NYU, as they were only concerned that the money for the PMV credits be reflected on her account. (R. 66, 437). Kickertz complied by submitting the PMV payment and associated patient encounter forms to Dr. Hershkowitz’s secretary, Luz Tartaglia. (R. 67, 436). The encounter forms were internal NYU documents that the support staff uses to monitor PMV payments from its students, and are not entered into any patient’s records. (R. 436). Tartaglia told Kickertz to write out the billing information on the encounter forms “as if you did them.” (R. 436). The money was accepted as a normal occurrence, in plain view of all clinic attendees, and was not questioned by anyone. (R. 67). Kickertz did not question the legitimacy of this transaction, as the culture of NYU that she had come to know during her years at the school perpetrated the idea that the most important thing was to generate money for the school. (R. 67). However, later that afternoon, Hershkowitz called Kickertz to a meeting where he questioned whether she had actually seen any patients in connection with the PMV credit payment she made. (R. 67). Kickertz replied that she did not. (R. 67). Later that day, Hershkowitz discussed the matter with Dean 7 Anthony Pallatta, who referred it to the Investigative Panel of the Peer Review Board (“PRB”) for disciplinary review. (R. 114). On June 2, 2009, Kickertz again met with Hershkowitz and Wolff, who told her that she should have known that Meeker did not have the authority to clear the problem with her PMV credits despite the fact that Meeker was Kickertz’s group practice director, whose primary function was to administer the PMV credit requirement program. (R. 61, 67). Wolff then directed Kickertz to head to the clinic to start working on her PMV credits. (R. 67). Over the next week, Kickertz’s attempts toward satisfying the PMV credit requirement were stymied by Meeker and Hershkowitz, who refused to assign any patients to her roster. (R. 68). As a result, Kickertz had to satisfy the requirement by seeing emergency patients, performing work on another dental student, and by begging other students to let her provide care to patients that had been scheduled for them. (R. 68, 437). Kickertz satisfied the PMV credit requirement on June 8, 2009. (R. 68). On June 9, 2009, Kickertz met with the Peer Review Board (“PRB”) in connection with allegations that she had, at the direction of Hershkowitz and Meeker, improperly obtained PMV credits without actually seeing any patients. (R. 68, 114). This meeting did not constitute a formal or informal hearing, as it merely consisted of the two students requesting that Kickertz forward to them all 8 relevant e-mail correspondences between herself and Meeker, which Kickertz complied with. (R. 68). Notably, under NYU’s Code of Ethics, a hearing is required prior to a student’s suspension or dismissal from the university. (R. 68- 69, 109). After this meeting, the PRB gathered information in relation to the allegations against Kickertz from various interviewees. (R. 68). Kickertz was never provided with an opportunity to review or respond to any of this information. (R. 68). During the pendency of the PRB’s investigation, Kickertz spoke with her clinic manager, Ivan Cornejo on a daily basis. (R. 71, 116). On one occasion, Kickertz told Cornejo that she felt Meeker was harassing her, and, in response, Cornejo commented that “Meeker is an idiot and should have been fired a long time ago.” (R. 71). Later, Cornejo met with the PRB, and claimed he never spoke with Kickertz during this time. (R. 71-72). Significantly, the same day Cornejo met with the PRB, Meeker chastised Kickertz, telling her that she was making him look bad and that he got a poor performance review as a result. (R. 71). Despite not having been afforded a hearing as required by the school’s published Code of Ethics, and not having otherwise been afforded any opportunity to defend herself from the allegations against her, on July 21, 2009, Kickertz was dismissed from the university. (R. 69, 113). Notably, NYU Dental’s Annual 9 Report of the Council on Ethics and Professionalism indicates that at least six other students alleged to have engaged in acts of dishonesty were not dismissed by NYU. (R. 320-321, 392-393). Kickertz received a copy of the PRB’s report simultaneously with the dismissal letter. (R. 70). The PRB report contained numerous false statements by Meeker that Kickertz could have rebutted, had she been provided with a hearing in which to do so. On October 7, 2009, after Kickertz was notified that she was dismissed from the university and only after Kickertz’s attorney made a request, NYU held a “hearing.” (R. 29, 74). At the hearing, NYU forbade Kickertz from questioning witnesses who had provided testimony against her, and also forbade her from inspecting documents that were being used as evidence against her. (R. 34, 75). Meeker, Hershkowitz, and Cornejo did not attend the hearing, even though their statements formed the crux of the initial investigation, and despite Kickertz’s prior request that they be available for questioning, which she made to these individuals personally and also to NYU. (R. 36, 76-77). In so doing, NYU contradicted its code of ethics, which specifically provides that “each side shall have a fair opportunity to question the witnesses of the other.” (R. 75, 110). As a result, Kickertz was unable to demonstrate the faculty’s breaches of the Practice Model Plan, and their directives that she pay the PMV money to NYU without having any patients in her roster. (R. 76). 10 By letter dated October 27, 2009, Kickertz was again notified that she had been dismissed from the university. (R. 30, 77, 159-160). Kickertz appealed this decision to the Dean of the College of Dentistry on November 11, 2009. (R. 30). In her appeal, Kickertz noted, among other things, that she had been denied representation by counsel, which violated the ethics code, that her initial “hearing” consisted of only two students, rather than 9 faculty members as required by the code of ethics, that her PMV goal had been thwarted by Meeker, that she believed Meeker and Hershkowitz had directed her to use her own money to obtain PMV credit, and that she had been deprived of the opportunity to inspect evidence against her and question critical witnesses. (R. 78, 161-173). Kickertz also noted that a member of NYU’s faculty, Dr. Eric Ploumis, had written a letter to NYU on her behalf, attesting that her actions were “not premeditated and there were a number of mitigating circumstances that overlay her actions,” and requesting that the “gross lapse in fairness by the university” in relation to her dismissal be rectified. (R. 161-173, 174-176). Just four business days later, on November 17, 2009, Kickertz received a letter from the Dean, stating “I have diligently studied the materials you submitted for consideration. After doing so, I find no basis for reversing the decision of the College Review Board. (R. 30). 11 PROCEDURAL HISTORY After her termination, Kickertz timely filed an Article 78 petition in Supreme Court, New York County.4 NYU moved to dismiss arguing, “that document[s] on which Kickertz relied – including the exhibits to her moving affidavits – established misconduct sufficient to warrant dismissal, and that the petition otherwise failed to state a cause of action.” 500.11 Ltr. at 9. Justice Alice Schlesinger granted the motion and dismissed the petition. Kickertz appealed to the Appellate Division, First Department. The Appellate Division reversed and granted the petition, finding that NYU did not substantially comply with its published guidelines. Kickertz v. New York Univ., 99 A.D.3d 502 (1st Dep’t 2012) (hereinafter “App. Dec.”).5 Two Justices dissented, noting, “I agree with the majority that dismissal was error and that the petition should be reinstated. However, it is my view that CPLR 7804(f) requires us to permit respondent to serve and file an answer.” Id. at 513. NYU asks this Court to reverse. 4 Kickertz also filed a plenary action which NYU also moved to dismiss. The trial court granted that motion, but the First Department modified the decision and allowed Kickertz to replead certain causes of action. Kickertz v. New York Univ., 971 N.Y.S.2d 271 (1st Dep’t 2013). That proceeding remains pending. 5 After the decision, the parties litigated the content of the judgment. Justice Schlesinger entered judgment which, in Petitioner’s view, did not conform to the decision of the First Department. Kickertz moved the First Department for an order clarifying its decision which remains sub judice. Kickertz has also filed a notice of appeal related to the judgment. 12 ARGUMENT I. THE APPEAL SHOUD BE DISMISSED FOR LACK OF JURISDICTION This Court has the inherent power to examine its own jurisdiction and dismiss appeals over which jurisdiction is lacking at any time. 22 N.Y.C.R.R. §§ 500.10, 500.11(g). An appeal to this Court as of right is proper where two justices of the Appellate Division dissented on an issue of law. C.P.L.R. § 5601(a). When the dissent turns on an issue of fact, the appeal must be dismissed. In re Daniel H., 15 N.Y.3d 883, 884 (2010). Further, the dissent’s position must be one that would turn the case in the appellant’s favor. In re Town of Islip, 49 N.Y.2d 354, 358 (1980). Here, Appellant’s appeal as of right is improper because, as discussed below, the dissent (A) dissented on an issue of fact, not law, and (B) the dissent’s position would not turn the case in Appellant’s favor. A. Whether Questions of Fact Exist in the Record is a Pure Factual Issue The application of a legal principle or standard to the facts of a particular case is a factual issue, not a legal one. See Guaspari v. Gorsky, 29 N.Y.2d 891 (1972). A mixed question of law and fact is not a question of law, and thus an appeal from a decision on such a question by the Appellate Division should be dismissed. In re Daniel H., 15 N.Y.3d at 884 (dismissing appeal on grounds that two-Justice dissent was not on a "question of law" under CPLR 5601[a] because: "Jurisdiction for an 13 appeal to this Court predicated upon CPLR 5601(a) requires that, at the Appellate Division, there be a ‘dissent by at least two justices on a question of law in favor of the party taking such appeal.'”). The justices of the Appellate Division agreed on the legal standard governing the granting of a petition prior to the filing of an answer. Both the majority and dissent recognized the rule in Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100, 102 (1984) (hereinafter “BOCES”) which allows Courts to grant an Article 78 petition without allowing the respondent an opportunity to answer when the record is developed and there is no factual dispute.6 Accordingly, the Appellate Division used the appropriate the legal standards and could not have erred on a legal issue. Here, the record was developed. In addition to her sworn statements in her petition and affidavit and those of her student adviser, Petitioner submitted a total of 39 exhibits. NYU also submitted sworn statements and its own exhibits, and invited the Courts to review Petitioner’s exhibits. Moreover, NYU invited the Courts to make a decision based on the evidence in the record. (500.11 Ltr. at 9 (“The University sought dismissal on the grounds that documents on which Kickertz relied – including the exhibits to her moving affidavits – established 6 The dissent also invokes Matter of Bethelite Community Church v. Dep’t of Envtl. Protection of City of N.Y., 8 N.Y.3d 1001 (2007). Bethelite cited to and did not overturn BOCES, thus, the BOCES exception remains law and the First Department properly applied it here. 14 misconduct sufficient to warrant dismissal.”). NYU is trying to manipulate itself out of that invitation, now that the Appellate Division determined that those documents indisputably show NYU violated its guidelines. Further, the disagreement of the Appellate Division Justices involved whether there were "disputed questions of fact" or whether Appellant had conceded all facts material to the majority's decision, as the majority found had been conceded. (App. Dec. at 509-10). In other words, the dispute was a factual one. The dissent found that the record, as developed, showed issues of fact. (App. Dec. at 511). The majority disagreed finding that “the record establishes” that, even accepting the dissent’s belief that issues of fact exist, the issues of fact do not matter because the Court reaches the same conclusion accepting either version of facts. Id. at 511. Notably, among the factual disputes between the majority and the dissent was not whether Petitioner was entitled to cross-examine witnesses under either version of the rules. The documentary evidence in the record, upon which Respondent invited the First Department to rely, clearly established that cross-examination of witnesses was allowed and that in Petitioner's case, this rule and guideline was blatantly violated. Even if NYU had been allowed to file an answer, it could not dispute what was apparent in the record – that cross-examination of the witnesses against Petitioner had not been permitted by the administration of NYU’s dental program. The record evidence submitted by NYU to the Supreme Court showed that Kickertz was entitled 15 to question the witnesses and review the “supporting evidence” under either version of NYU’s rules. (R. 313 (Palatta Aff. Ex. B at 6 ¶ IV(C)(2))). As NYU admitted in its brief to the Appellate Division, Kickertz was not allowed to examine the witnesses against her, including Ivan Cornejo, David Hershkowitz, and Harry Meeker. See Resp. Br. in Kickertz v. NYU, Case No. 103461/2010, pp. 16-17. Kickertz emphasized this point in her own brief to the Appellate Division. Pet'rs Br. on Appeal, Kickertz v. NYU, at 2-5. Moreover, the record was clear that the “evidence” against Kickertz – the alleged encounter forms – was not reviewed at the hearing, as required by the 2009 disciplinary rules. See id. NYU also attempts to manufacture a factual dispute where one is lacking in the record by baldly asserting that the Appellate Division improperly faulted NYU for an absence of proof and evidence given at the hearing. 500.11 Ltr. at 21. As noted above, both the 2005 and 2009 rules clearly state that “hearings shall be conducted in a manner to achieve substantial justice”, that “Each side shall have a fair opportunity to question the witnesses of the other”, and that “the supporting evidence shall be presented” at “Hearings of the Peer Review Board Involving Consideration of . . . Dismissal.” (R. 313, 432 (emphasis added)). There is no dispute that NYU did not present the supporting evidence or allow witnesses to be questioned. (App. Dec. at 503-04; R. 281, 618-22). 16 NYU may wish to offer further evidence to the Court via an answer. However, any further factual disputes it may raise in such an answer are not relevant. The First Department acted appropriately by making the factual finding that the facts before it that were undisputed and that could not be disputed, sufficiently showed that NYU did not substantially comply with its own rules. The majority also properly made the factual finding that any factual disputes apparent in the record were not relevant to a determination, as it found that NYU did not substantially comply with its rules accepting either disputed version as true. Notwithstanding, these determinations are factual issues, not legal ones, thus this Court lacks subject matter jurisdiction over Appellant’s purported appeal as of right. B. The Dissenting Justices Would Not Have Resolved the Case in NYU’s Favor Jurisdiction in this Court is not sufficiently created when a dissenting minority announces some dicta favorable to the appellant. Rather, the dissenting justices must have voted to sustain the decision of the Supreme Court which NYU obtained. The ultimate measure of the substance of a minority viewpoint is not whether it articulates some agreement with the appellant's position, but, instead, whether the minority would have determined the appeal substantially in his favor. Only when the minority has given appellant the benefit of its vote, as well as the benefit of its views, may it be said that there is actual disagreement sufficient 17 to indicate the existence of a debatable law issue. Christovao v. Unisul-Uniao de Coop. Transf. de Tomate do sul do Tejo, 41 N.Y.2d 338, 339 (1977) (noting further that in that case, “all of the Justices below advocated the dismissal of the complaint, it cannot be said that a technical dissent, substantively closer to a concurrence, should generate an appeal as of right”). Thus, a dissent's rejection of the extent of the majority's ruling, rather than its vote to overturn the Supreme Court, does not create a dissent in an appellant's favor for purposes of appeal to this Court. See Lucas v. New York City Transit Authority, 163 A.D.2d 21, (1st Dep't 1990) (dissent would have reversed as to excessiveness of award, among other things), appeal dismissed, 76 N.Y.2d 933 (1990); see also Hemphill v. Hemphill, 169 A.D.2d 29 (2d Dep't 1991) (dissent as to whether remedy devised by Supreme Court was “improvident exercise of discretion, if not an error as a matter of law"), appeal dismissed, 78 N.Y.2d 1070 (1991). Here, the dissent was not in NYU’s favor. Actually, the dissenters agreed that the Supreme Court erroneously dismissed the petition: "I agree with the majority that the dismissal was error and that the petition should be reinstated." (App. Dec. at 513). Thus, like in Christovao, here, all the Justices “advocated” that dismissal of the petition was error and that it should be reinstated. Accordingly, the dissent was not in NYU’s favor. Indeed, the dissent was adverse to NYU and, therefore, an appeal as right is not proper under C.P.L.R. § 5601(a) and should be 18 dismissed. C. NYU Is Not Prejudiced NYU is not prejudiced by not submitting an answer. As discussed above, the indisputable facts show NYU did not comply with its disciplinary guidelines. Any further submissions by NYU cannot alter that conclusion. Moreover, NYU invited the lowers court to rule based on the substantial documentary evidence before them and it put forth its own documentary evidence and sworn affidavits. See Gelmin v. Quicke, 224 A.D.2d 481, 482 (2d Dep’t 1996) (court appropriately treated motion as one for summary judgment where “the significant factual submissions proffered by both parties [make clear] that they were laying bare their proof and ‘deliberately charting a summary judgment course’”); see also R.288 (“Kickertz has no legitimate argument that the College did not substantially follow the applicable disciplinary rules in her case. Her petition is, therefore, without merit”); R.268 (NYU moved to dismiss “because the Respondent has a defense based on documentary evidence, and the Petition fails to state a cause of action.”)). II. NYU FAILED TO PRESERVE THE PRINCIPAL GROUND OF ITS APPEAL NYU raises one principal issue in its appeal to this Court, which was not preserved in its appeal to the Appellate Division. When arguments made in the dissent were not preserved by the appellant in the trial court, there is no 19 jurisdiction in this Court under CPLR 5601(a). See Merrill by Merrill v. Albany Medical Center Hosp., 71 N.Y.2d 990, 991, (1988) (appeal dismissed, with costs, because: “Although the dissent in the present case purports to address questions of law, an examination of the full record reveals that the arguments upon which the dissent is predicated were not raised by appellant in the trial court.”). NYU’s main challenge to the Appellate Division's ruling is that two dissenting justices decided an issue of law adversely to the majority, namely, Respondent's entitlement to file an answer upon the reinstatement of the petition, rather than see the petition resolved on the papers under BOCES. Thus, NYU’s Letter reflects that the issues are (1) “Did the Appellate Division err as a matter of law when it granted Kickertz’s Article 78 petition, without allowing the University an opportunity to respond to the petition on the merits, although the Supreme Court had granted the University’s pre-answer motion to dismiss and there were numerous sharply disputed issues of fact?” and (2) “Did the Appellate Division err as a matter of law when it failed to uphold the University’s determination to impose discipline on Kickertz, and in determining that the University had not substantially complied with its applicable disciplinary rules?” The question of NYU’s entitlement to file an answer under CPLR 7804[f] was not preserved for appeal to this Court in NYU’s briefing below. R. 270-92. Indeed, NYU invited the lower courts to make decision on the basis of 20 “documentary evidence,” including the exhibits to affidavits contained in the record. R. 274. The second issue, which NYU did preserve by arguing that NYU had followed its disciplinary rules, is one of fact, which attracted no dissenting opinion or analysis in NYU's favor, because no justice would have affirmed the dismissal of Petitioner’s Article 78 petition on the basis of NYU’s substantial compliance. NYU did not assert in the Appellate Division that it was entitled to file an answer rather than have the petition resolved in Petitioner's favor if the facts were “fully presented” regarding Respondent's failure to substantially comply with its own manuals and procedures. Its brief to the Appellate Division did not cite CPLR 7804[f], the basis of both the majority and dissenting opinion's explanation of the rule of law that an answer may be filed to an Article 78 petition except where the exception recognized in BOCES. Instead, Respondent invited the Appellate Division to affirm the motion to dismiss using the “documentary evidence.” Resp. Br. to App. Div. at 1-3. Such unpreserved issues may not serve as a basis for Court of Appeals jurisdiction, even where supported by a two-justice dissent on an issue of law. See Matter of Markim Q., 7 N.Y.3d 405, 408-9 (2006) (holding that appellant was “was not free” to raise issues “for the first time on appeal” unless they were “jurisdictional” and thus “nonwaivable”); Delijani v. Delijani, --- N.Y.S.2d ----, 21 2012 WL 5935551, at *1-2 (2d Dep’t Nov. 28, 2012 (where defendant’s challenges to orders below were “raised by the defendant for the first time on appeal” those challenges were, “therefore, not properly before the Court”); See also Merrill v. Albany Med. Ctr. Hosp., 71 N.Y.2d at 991; Guaspari v. Gorsky, 29 N.Y.2d 891 (1972). III. THE APPELLATE DIVISION APPROPRIATELY GRANTED THE PETITION If the Court finds that it has jurisdiction, the appeal must nonetheless be dismissed because the Appellate Division properly found that the indisputable facts entitle Kickertz to the relief requested. Any error by the Appellate Division in not permitting NYU to file an answer was harmless as a matter of law. See C.P.L.R. § 2002 (“An error in a ruling of the court shall be disregarded if a substantial right of a party is not prejudiced.”); Nestorowich v. Ricotta, 97 N.Y.2d 393, 400-401, (2002) (error is “harmless” where there is “ample evidence” to support the judgment or ruling of the court); Badr v. Hogan, 75 N.Y.2d 629, 631 (1990) (error must have “bearing on the critical issue” in order for error to be “sufficiently prejudicial” to warrant “reversible error”). As discussed below, the Appellate Division properly found that no dispositive issues of fact exist or could be established. Thus, the Appellate Division did not err in granting the petition before allowing NYU to answer. 22 A. The Appellate Division Followed the Instructions of BOCES Courts of this State, including this Court, routinely resolve Article 78 petitions on the undisputed factual record without permitting an answer to be filed. Where “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 from the failure to require an answer,” a court may grant the relief requested in the petition without permitting an answer to be filed. BOCES, 63 N.Y.2d at 102; See also Tamsen v. Licata, 94 A.D.3d 1566, 1569 (4th Dep’t 2012) (following BOCES to order preanswer reinstatement of petitioner to position enjoyed prior to respondent’s arbitrary determination); Bill’s Towing Serv., Inc. v. County of Nassau, 83 A.D.3d 698, 699-700 (2d Dep’t 2011) (noting the precedent of Bethelite, but further noting that BOCES permits Courts to grant petitions prior to an answer where no factual disputes exist); Matter of Dougherty v. Mammina, 261 A.D.2d 400, 401, 687 N.Y.S.2d 287, 288 (2d Dep’t 1999) (rejecting appeal against granting of Article 78 petition prior to service of an answer under CPLR 7804(f) where “Supreme Court was fully informed of all issues pertaining to the SEQRA review and no purpose would be served by remitting the matter to the Supreme Court for service of an answer”) (citations omitted); Kuzma v. City of Buffalo, 45 A.D.3d 1308, 1310-11 (4th Dep’t 2007) (reversing denial of Article 78 and granting petition because where “‘the 23 dispositive facts and the positions of the parties are fully set forth in the record, thereby making it clear that no dispute as to the facts exists and that no prejudice will result from the failure to require an answer,’ the court may reach the merits of the petition and grant the petitioner judgment thereon notwithstanding the lack of any answer and without giving the respondent a further opportunity to answer the petition”) (quoting BOCES, 62 N.Y.2d at 102 (emphasis added)). Here, the Appellate Division correctly noted that there were no disputed dispositive facts.7 Further, the record as established makes clear that even if NYU were allowed to answer, they could put forth no evidence to dispute any dispositive fact. The dissent noted that one disputed fact was whether the 2005 or 2009 Code applied. But, the Court found that NYU did not substantially comply with either code.8 Indeed, the Court found that if the 2005 code applied, Kickertz was prejudiced by NYU’s use of the 2009 Code in at least two material ways: (1) the composition of the PRB under the 2009 Code was to be only students whereas the 7 As discussed below, NYU blurs and skews the arguments. It discusses many alleged issues of fact, but those facts did not influence or affect the Appellate Division’s decision. Although these facts may be disputed if NYU answers, they are not dispositive, so an answer will not alter the outcome. The Appellate Division appropriately relied on facts which could not be disputed in deciding to reverse the trial court’s decision. 8 NYU argues to this Court that the “Appellate Division accepted Kickertz’s argument that the University was required to comply with the 2005 version of the Code of Ethics.” 500.11 Ltr. at 13. However, the Appellate Division did not make a ruling as to which code applied. Rather, the Appellate Division found that such a determination did not need to be made because NYU did not comply with either code. App. Dec. at 508. 24 2005 code provided for faculty and student members; and (2) under the 2005 Code Kickertz could be accompanied at the hearing by an adviser or even legal counsel but under the 2009 Code, she could only bring an adviser from within NYU. The latter was a substantial prejudice as Kickertz was represented by counsel at the time and had made requests to have counsel present with her at the hearing, in part, because of her mental state. If the 2009 code applied, NYU did not substantially comply with it because NYU dismissed Kickertz in July 2009 before providing her with a hearing, a clear violation of the 2009 Code and an undisputed fact. (R.113) (“as of this date you are dismissed from the College of Dentistry”). Indeed, the Appellate Division notes NYU admitted to the violation and despite its voluminous additional submissions to this Court in the Compendium, there is no evidence that NYU did not commit such a violation. Rather, the submissions bolster the Appellate Division’s conclusion that the sanction of dismissal was reviewed and approved before Kickertz ever had a hearing. (Comp. 122, 132, 135 (“Your appeal is based on the failure of Ms. Kickertz to receive a hearing as outlined in the Peer Review Board document. I am in complete agreement that the student is entitled to a full hearing. . . .”) This violation shows that NYU did not comply with the 2009 Code in at least two material ways: it did not provide a hearing, as required, but it also did not provide substantial justice. Rather, it did not provide any justice. This 25 undisputed dispositive fact is reason enough to affirm because of the egregiousness of the violation. The Appellate Division further found that NYU did not comply with the 2009 Code because it did not provide substantial justice9 to Kickertz when the hearing finally took place in October 2009. The 2009 Code requires the Investigating Panel to present “charges and supporting evidence.” Although the rules of evidence used in courts are not used in the hearing, in its most basic sense, evidence means “[s]omething (including testimony, documents and tangible objects) that tends to prove or disprove the existence of an alleged fact.” BLACKS LAW DICTIONARY 9th Ed. Here, the only evidence NYU presented was the Investigative Report and NYU blocked Kickertz’s efforts to obtain evidence which would have supported her defense. (R.29, 322-23). Thus, NYU did not provide “supporting evidence” or “substantial justice.” The only evidence NYU submitted at the hearing was the Investigating Panel’s interpretation of third-party’s views of the evidence. The Appellate Division properly found that reliance on such double hearsay did not provide Kickertz substantial justice. (App. Dec. at 508-09). This finding is particularly apt where, as here, Kickertz did not have an opportunity to confront 9 The 2005 Code also requires NYU to provide “substantial justice” and the Appellate Division noted that the following analysis applied equally to the 2005 Code as to the 2009 Code. (App. Dec. at 509 n.4). 26 and question her accusers.10 Moreover, the hearing results were tainted and a foregone conclusion as NYU had already terminated Kickertz in July. Thus, the administration made its desired results clear. (R.321 (the two student panel was “more susceptible to influence from the Dean”)). Further, the Appellate Division relied on the indisputable documentary proof that NYU did not comply with “matters of procedure.” The 2009 Code required the PRB to make determinations as to procedural matters. (R.432). However, Palatta, not the PRB, denied Kickertz’s procedural requests, including: (a) a reasonable accommodation for her medical condition that her adviser be allowed to ask questions; (b) requests for witness contact information; (c) requests to have witnesses in control of NYU appear at the hearing; and (c) requests for certain documents. (R.157). Whether Kickertz was entitled to fulfillment of these requests or not, she was entitled to have them considered by the PRB, not Palatta. (R.313). Thus, the Appellate Division properly considered this and the other deviations 10 If the Court considers NYU’s Compendium of Supreme Court documents, the documents further support the impropriety of the hearing. The Investigating Panel was required to present evidence. Instead, the hearing transcript reveals that the PRB placed the burden on Kickertz to prove her innocence. (Comp. at 159-60). The only testimony taken at the hearing was from Kickertz and her mother. Id. Thus, the PRB took at face value the double-hearsay investigative report and then turned to Kickertz to show her innocence. Id. Indeed, at the hearing, Kickertz did not admit to falsifying patient records as Appellant-Respondent continuously represents to the courts of this state. Compare Comp. 160 (“KK [stated] she never falsified the patient records”) with Appellant’s 500.11 Letter at 28 (“[Kickertz’s] initial response to learning of her academic deficiency was to falsify records”) and R.274-75 (“Indeed, Ms. Kickertz admittedly created false patient records” (emphasis in the original)). 27 from the Code. Based on such indisputable facts, the Appellate Division appropriately granted the petition. Moreover, in BOCES, the Court ruled only on a jurisdictional issue. BOCES, 63 N.Y.2d at 101 (“Respondents moved to dismiss the petition on the ground that petitioner lacks standing”). Thus, the BOCES Court ruled that “[t]here having been no such development of the facts in the present case” failure to provide the respondent an opportunity to answer was error in that case. Id. Here, however, the lower courts reviewed a highly developed record. (See generally R.1-628). Furthermore, NYU did not move to dismiss on procedural grounds. Rather, it moved to dismiss the Petition on its merits, arguing that it failed to state a claim and that the documentary evidence proved NYU had a defense. (R.268 (notice of motion indicating NYU believed it was entitled to relief “because the Respondent has a defense based on documentary evidence, and the Petition fails to state a cause of action.”); see also R.288 (NYU’s memorandum of law arguing, inter alia, “Kickertz has no legitimate argument that the College did not substantially follow the applicable disciplinary rules in her case. Her petition is, therefore, without merit.”). Because the Appellate Division based its decision on a developed record, because NYU invited the Courts to rely on such record and because the indisputable facts in the record showed NYU did not comply with its 28 published guidelines, the Appellate Division properly invoked the BOCES exception and granted the petition. B. NYU’s Alleged Issues of Facts are Red Herrings NYU argues that other factual issues exist which warrant their submitting an answer. (500.11 Ltr. at 21). It urges that disputed facts include, “the purpose of the PMV requirement, when Kickertz learned of her deficiency in meeting it, whether Kickertz had an opportunity to meet it honestly, and the nature and extent of Kickertz’s falsification.” (500.11 Ltr. at 16, 21). The argument is a red herring because these facts were not dispositive to the Appellate Division’s decision. Indeed, they are not at all relevant to the issue decided by the First Department – whether NYU complied with its published guidelines. No matter how vigorously NYU disputes these facts, it does not alter or bear on the conclusion that NYU did not give substantial justice to Kickertz, justice to which she was entitled under the guidelines, regardless of the seriousness or nature of the allegations against her. IV. THE APPELLATE DIVISION’S OPINION THAT NYU’S CONDUCT SHOCKED THE CONSCIENCE IS, AT WORST, HARMLESS ERROR After determining that the petition should be granted because NYU did not substantially comply with its guidelines, the First Department “expressed its view” that NYU’s penalty of expulsion shocked one’s sense of fairness. The Appellate Division decision cannot be overturned based on an objection to this view because it 29 is: (a) dicta which cannot be appealed; (b) harmless error, if error at all; and (c) substantively correct. A. Dictum is Not Dispositive and Cannot be Appealed Judicial dictum is “[a]n opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision.” BLACKS LAW DICTIONARY 9th Ed; See U.S. v. Garcia, 413 F.3d 201, 232 n.2 (2d Cir. 2005) (“Holdings—what is necessary to a decision—are binding. Dicta—no matter how strong or how characterized—are not.”). Because opinions are not appealable, dictum is not appealable. See Chathas v. Local 134 Int’l Broth. of Elec. Workers, 233 F.3d 508, 512 (7th Cir. 2000). Here, the Appellate Division based its ruling on its determination that NYU did not substantially comply with its guidelines. It did not find necessary an analysis of Kickertz’s argument that expulsion was disproportionate to the offense such that it shocked one’s sense of fairness. (App. Dec. at 511 (“there is no need to determine whether penalty of expulsion . . . [is] shocking to one’s sense of fairness.”)). The Appellate Division explicitly noted it was expressing only a “view” that expulsion shocked the conscience. Id. Accordingly, the opinion was not a factor in the disposition of the case and constitutes dictum, which cannot be appealed. 30 B. The View is Harmless Error If the Appellate Division’s “view” that the expulsion shocks one’s sense of fairness is something more than dictum, it is nonetheless harmless error. Where a decision of a court is erroneous, but does not bear on the ultimate outcome of the case, the error is harmless and does not warrant reversal of the decision.11 See Abdella v. Scribner, 31 N.Y.2d 940, 942 (1972) (error committed by accepting certain evidence, but it was harmless as other evidence in record supported court’s determination); Martinez v. Paddock Chevrolet, Inc., 85 A.D.3d 1691, 1693 (4th Dep’t 2011) (court should not have admitted document into evidence containing double hearsay, but the error did not bear on the issue of defendant’s negligence so decision on the ultimate issue affirmed). Here, the Appellate Division noted that Petitioner challenged NYU’s decision on two grounds: first, NYU did not comply with its published guidelines, and second, the penalty of expulsion shocks the conscience. The Appellate Division made a clear determination of these issues: For the reasons that follow, we conclude that irrespective of whether the 2009 Code the 2005 Code is the applicable code, NYU did not substantially comply with its own published guidelines and policies. Thus, its determination 11 Similarly, there is a dispute about the interpretation of Matter of Kelly v. Safir, 96 N.Y.2d 32, 39 (2001). However, to the extent there is error, it is also harmless. As discussed in other sections, the Appellate Division found numerous indisputable facts supporting the determination that NYU did not substantially comply with its guidelines. The reference to the review of patient charts was an additional supporting fact noted in an aside. (App. Dec. at 511). 31 expelling petitioner must be annulled as arbitrary and capricious. (App. Dec. at 502-03). Then, for the next eight pages of an eleven page majority decision, the court reviewed the facts and gave its analysis related to NYU’s compliance with its guidelines. After the analysis, the Court concluded by reiterating that, “Upon our review of the record, we find that NYU did not substantially comply with its own published guidelines under either the 2009 or the 2005 Code.” (App. Dec. at 508). Thus, the penalty and whether it shocked one’s sense of fairness was not a dispositive factor, or even any factor, in the Court’s analysis. Rather, the Court noted that “In light of the foregoing [analysis of substantial compliance], there is also no need to determine whether the penalty of expulsion without possibility of readmission ‘is so disproportionate to the offense . . . as to be shocking to one’s sense of fairness. . . .” (App. Dec. at 511). Accordingly, the Appellate Division made abundantly clear that the penalty was not a dispositive factor, but that it was merely offering its view that the penalty was shocking. (App. Dec. at 511). Because the penalty was not dispositive to the Court’s decision, even if the Court’s view that the penalty was shocking is erroneous, it is nonetheless harmless error and cannot serve as a basis to overturn the Appellate Division’s decision. C. The Penalty Shocks One’s Sense of Fairness Separation from an academic program is a shocking and excessive remedy for a single day’s alleged misconduct. See, e.g., Rindos v. Board of Educ. of 32 Longwood Cent. School Dist., 20 A.D.3d 572, 573 (2d Dep’t 2005); Schnaars v. Copiague Union Free School Dist., 275 A.D.2d 462 (2d Dep’t 2000) (“We agree with the Supreme Court that termination under the circumstances of this case was so disproportionate to the offense as to be shocking to one's sense of fairness.” (citation omitted) (citing Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233 (1974)); Haynes v. Board of Ed., Cold Springs Harbor Central School Dist., 57 A.D.2d 959, 395 N.Y.S.2d 76 (2d Dep’t 1977) (court used Article 78 to reduce penalty from dismissal to a fine because: “Under all of the circumstances presented by the record in this proceeding, and in the light of petitioner's record, the penalty of dismissal is shocking to one's sense of fairness and constitutes an abuse of discretion”). Kickertz was informed that she did not qualify to receive her degree, quite literally, on the eve of graduation. To get to that moment, Kickertz invested four years of her life – the entire duration of the DDS program course of study – at NYU. During this time Kickertz met every academic requirement assessed by NYU and, through her hard work, received impressive grades including an A+ in ethics and a faculty award. (R. 64). The expulsion effectively strips four entire 33 years from Kickertz’s life and leaves her with nothing to show for the time that she invested.12 In an effort to fulfill her dream of becoming a dentist, over four years of study Kickertz has paid hundreds of thousands of dollars in tuition and fees to Respondent. Her subsequent expulsion essentially represents a huge monetary sanction and forfeiture of the funds she invested with NYU. Further, during her third and fourth years at NYU, Kickertz spent hours upon hours working for NYU dental school in its clinic treating patients. During these clinical hours, Kickertz earned the Respondents additional monies totaling almost $40,000.00 dollars. (R. 60-61). Kickertz’s expulsion means that all of those hours earning Respondent’s additional profits gained her nothing and could have been spent in pursuit of her own career goals. Accordingly, the Appellate Division properly found that her expulsion shocks one’s sense of fairness. V. COURT REVIEW OF NYU’S CONDUCT IS APPROPRIATE AND NECESSARY “[W]hen a university has adopted a rule or guideline establishing the procedure to be followed in relation to suspension or expulsion that procedure must be substantially observed.” Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 660 12 As NYU notes, Kickertz has subsequently been able to graduate from another University via an advanced standing program. None of her NYU credits were used in obtaining the degree. Thus, NYU has been unjustly enriched by receiving Kickertz’s four years of tuition yet avoiding granting her the degree for which she paid and earned. 34 (1980) (Article 78 review appropriate because college did not substantially comply with its published guidelines as required). The rule of Tedeschi is well settled. Susan M. v. New York Law School, 76 N.Y.2d 241, 245 (1990) (noting difference between reviewing academic performance verse discipline); Zartoshti v. Columbia Univ., 79 A.D.3d 470, 471 (1st Dep’t 2010); McConnell v. Le Moyne Coll., 25 A.D.3d 1066, 1068-69 (4th Dep’t 2006); Loebl v. New York Univ., 255 A.D. 257, 258 (1st Dep’t 1998) (“an institution such as New York University is held to the standard of ‘substantial compliance’ in following its own rules and procedures”); Gruen v. Chase, 215 A.D.2d 481 (2d Dep’t 1995) (petitioner’s due process rights were not violated, but because university did not comply with its guidelines, judicial review was appropriate and relief was warranted). Even if, as NYU urges, the standard is whether the university acted arbitrarily and capriciously, such conduct is established by showing the university did not substantially comply with its guidelines. Hyman v. Cornell Univ., 82 A.D.3d 1309, 1310 (3d Dep’t 2011) (“When a university has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious” (emphasis added)). As discussed throughout this letter, the Appellate Division properly determined that NYU did not comply with its own published guidelines in its