|Matter of Kickertz v New York Univ.|
|2011 NY Slip Op 50131(U) [30 Misc 3d 1220(A)]|
|Decided on February 3, 2011|
|Supreme Court, New York County|
|Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.|
|This opinion is uncorrected and will not be published in the printed Official Reports.|
In the Matter of Katie Kickertz, Petitioner,
New York University, Respondent.
Petitioner Katie Kickertz commenced this Article 78 proceeding seeking to
annul the decision by respondent New York University College of Dentistry (NYU) to dismiss
Ms. Kickertz from the dental program without possibility of reinstatement after four years of
instruction. The basis for the dismissal was a finding after a disciplinary hearing before NYU's
Peer Review Board (PRB) that Ms. Kickertz had created false patient treatment records in order
to obtain certain credits that she needed for graduation. In addition to this proceeding, Ms.
Kickertz has commenced a plenary action seeking damages (Kickertz v NYU, et al.,Index
No. 103462/10). NYU has moved to dismiss both cases. The motions are consolidated for
The following facts are presented in the light most favorable to Ms. Kickertz, as is required on a motion to dismiss. See, Maas v Cornell University, 94 NY2d 87, 91 (1999).Sharp factual disputes are nevertheless noted.
Katie Kickertz began her studies at the NYU College of Dentistry in the Fall of 2005 as part of a program that accepted students without an undergraduate degree after only three years of undergraduate education. As of at least the Fall of 2007, Ms. Kickertz understood that her graduation requirements included a "Practice Model Value" (PMV) requirement whereby she was obligated to gain clinical experience by providing actual dental treatment to real patients for a fee that was paid over to NYU. (See Affidavit of Katie Kickertz in Support of Petition, at ¶2).[FN1]
Specifically, Ms. Kickertz understood that she and the other members of her class were required to earn PMV credits corresponding to $21,000 in treatment in the fourth year of instruction, in addition to $16,000 beginning in the second year. (¶2). Dr. Harry Meeker was the NYU instructor who served as Ms. Kickertz's advisor for the clinical instruction aspects of her education. The parties disagree as to how much responsibility Dr. Meeker had, as opposed to Ms. Kickertz herself, for ensuring compliance with the PMV requirements on an ongoing basis.
Some time in the Spring of 2009, Dr. Meeker advised Ms. Kickertz that she had not earned a sufficient number of PMV credits to graduate. Whereas Ms. Kickertz insists (at ¶10) that she first learned of the deficiency in an e-mail received from Dr. Meeker the evening before the graduation ceremony, Dr. Meeker told the PRB in the course of its investigation that he had notified Ms. Kickertz of the deficiency beginning in mid-April and repeatedly thereafter, including the day before graduation. (Exh 11). However, the earliest e-mail confirmation attached to the papers is one dated Monday, May 25, 2009 from Dr. Meeker to Ms. Kickertz in which Dr Meeker informed Ms. Kickertz that he was "uncertain" about her status for graduation, which was set for the following day. (Exh 4). Ms. Kickertz responded that she was scheduled to move from New York to Boston on Wednesday of that week and that she wished to resolve the matter promptly. An exchange of e-mails and meetings followedbetween Ms. Kickertz, Dr. Meeker, and others at NYU regarding this issue. (¶¶ 10-11).
It is undisputed that, in an attempt to obtain the necessary PMV credits, Ms. Kickertz fabricated patient records. Specifically, after receiving the May 25 e-mail but before moving to Boston two days later, Ms. Kickertz completed entries in various patient records and a patient chart indicating that she had provided the patients with certain treatment — 16 extractions and a bleaching in the course of a single afternoon. In fact, no such treatment had been provided, and it was Ms. Kickertz herself who had paid to NYU the fees that would have corresponded to that treatment. (Exh 11). Throughout her affidavit in support of the petition, Ms. Kickertz intermittently attributes this clearly wrongful conduct to confusion, panic, mental health issues, other medical problems, and the alleged failure of Dr. Meeker to appropriately guide her.
Before NYU made its final determination to dismiss Ms. Kickertz, it afforded her [*3]a hearing before her peers. Dr. Eric J. Ploumis from the NYU faculty acted as Ms. Kickertz's advisor in connection with that hearing. Despite a request from Ms. Kickertz's psychotherapist, Ms. Kickertz was not permitted to have an attorney present. (Exh 12).The hearing was conducted before the Peer Review Board pursuant to the rules then in effect. (See Ploumis Aff. in Support of Petition, Exh 7). In accordance with those procedures, two students conducted an investigation and prepared a report. The PRB then reviewed the report and recommended that Ms. Kickertz be dismissed from NYU. (Exh 10). A College Review Board composed of three faculty members reviewed the report and recommendation and determined them to be complete and that the sanction was appropriate.
Based on these findings, Assistant Dean for Student Affairs Anthony M. Palatta informed
Ms. Kickertz in writing on October 27, 2009 that she was being dismissed from the College of
Dentistry effective immediately.[FN2] (Exh 18). Dean Palatta further advised Ms.
Kickertz in the letter of her right to appeal. Ms. Kickertz did appeal in a letter to Dr. Charles
Bertolami (Exh 19) which was supported by a letter from Dr. Ploumis (Exh 20). The appeal was
denied on November 17, 2009, and this timely Article 78 proceeding ensued.
NYU's decision to dismiss Katie Kickertz from the College of Dentistry was based on the application of its disciplinary rules, as well as academic standards. The disciplinary aspect is governed by the Code of Ethics, enforced by the Peer Review Board. The Code bans:
[a]ny action that interferes with the ... clinical ... activities at the College; ... engaging in
unprofessional behaviors; ... cheating ... misrepresentation of one's own academic or clinical
work ... and falsifying, tampering with, or destroying any academic or clinical record, document
or file ...
(A copy of the Code is attached to the Ploumis Aff. as Exh 7). As an academic matter, NYU properly considered the ethical issues, consistent with both its inclusion in the curriculum of a course in Ethics and Ms. Kickertz's failure to appropriately complete the PMV requirements included in the curriculum.
As our Appellate Division has repeatedly emphasized, judicial review of disciplinary decisions by educational institutions is extremely limited. Simply put, if the court finds that the institution has substantially complied with its written guidelines, the court's inquiry should end there. Thus, for example, in Quercia v New York University, 41 AD3d 295 (1st Dep't 2007), the Appellate Division reversed the trial court's decision, which had vacated the extended suspension of the student after disciplinary proceedings and limited the penalty for confirmed drug possession in the dormitory room to community service. In so doing, the court highlighted the limits on judicial review, stating that: [*4]
It is well established that judicial review of an
educational institution's disciplinary determination involving nonacademic matters is limited to
whether the institution substantially adhered to its own published rules and guidelines and was
not arbitrary and capricious ... In the present case, this standard was clearly met.
Id. at 296 (citations omitted).
Further, a student subjected to disciplinary proceedings at a private university is not entitled to the "full panoply of due process rights." The educational institution need only ensure that its rules are "substantially observed." Ebert v Yeshiva University, 28 AD3d 315 (1st Dep't)(upholding expulsion from private university where determination had been made pursuant to "informal processes and limitations" set forth in disciplinary rules);see also, Zartoshti v Columbia University, 79 AD3d 470 (1st Dep't 2010) (upholding two-year suspension where private university "substantially complied with its own guidelines" and petitioner "demonstrated no prejudice resulting from the deviation from literal compliance with the Student Handbook procedures"); Fernandez v Columbia University, 16 AD3d 227 (1st Dep't 2005)(upholding disciplinary sanction where private university "substantially abided" by its own governing rules and regulations).
As the Court of Appeals emphasized in Tedeschi v Wagner College, 49 NY2d 652, 658 (1980), judicial review of academic decisions by private institutions is perhaps even more restricted than review of disciplinary decisions:
As is recognized by our recent decision in Matter of Olsson v Board of Higher Educ. (49 NY2d 408) and the cases cited therein, because matters involving academic standards generally rest upon the subjective judgment of professional educators, courts are reluctant to impose the strictures of traditional legal rules. Though such matters are subject to judicial scrutiny, the issue reviewed in such a case is whether the institution has acted in good faith or its action was arbitrary or irrational.
More recently, in Flomenbaum v New York University, 71 AD3d 80, 86 (1st Dep't 2009), aff'd 14 NY3d 901 (2010), in upholding NYU's decision not to admit a faculty member's child to a particular academic program, our Appellate Division looked to the words of the United States Supreme Court and described the standard of review as follows:
When asked to review the substance of a genuinely academic decision, such as the one at issue here, courts should show great respect for the faculty's professional judgment. "Plainly, they may not override it unless it is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment" (Regents of Univ. of Mich. v Ewing, 474 US 214, 225 ).
Applying this standard to the facts of this case, this Court finds that Ms. Kickertz's challenge to NYU's expulsion decision is lacking in merit. NYU substantially complied with the guidelines and procedures set forth in the Code of Ethics in effect at the time of the proceedings. Ms. Kickertz's reliance on an outdated set of rules is misplaced. [*5]
Also unavailing is Ms. Kickertz's claim that she was denied due process by not being afforded the opportunity to confront the witnesses interviewed by the PRB. As the above-cited cases establish, a student is not entitled to the full panoply of due process rights, nor even a formal hearing with counsel, so long as the university substantially complies with its written guidelines. It is undisputed that Ms. Kickertz was advised in advance of the guidelines governing the PRB proceedings, and she was undeniably aware of the charges against her and the issues that would be addressed in the proceedings. Indeed, Ms. Kickertz even knew from the prior (albeit procedurally improper) determination that NYU was inclined to expel her from the College of Dentistry. To the extent there may have been some deviation by NYU from literal compliance with its rules when the final expulsion determination was rendered, Ms. Kickertz has not established any prejudice.
In that regard, this Court also rejects Ms. Kickertz's claim that she was denied a reasonable accommodation based on her medical condition. Although Ms. Kickertz did suggest in her comments to Dr. Meeker and others that she had medical issues, the only formal request for a reasonable accommodation was made by her psychotherapist Karen Enegess by affidavit sworn to on August 8, 2009. (Exh 12). There Ms. Enegess indicated that she had been treating Ms. Kickertz for "Major Depressive Disorder, single episode, severe, without psychotic features [and] Anorexia Nervosa, restricting type, and Anxiety Disorder Not Otherwise Specified, with Rule-Outs of post Traumatic Stress Disorder and Generalized Anxiety Disorder."
The specific accommodation Ms. Enegess requested was to permit Ms. Kickertz to have an attorney at the hearing because, in her opinion, Ms. Kickertz was "in no position to question witnesses, be questioned, and present the evidence in her favor at a hearing." In lieu of allowing Ms. Kickertz to be represented by counsel, NYU assigned Dr. Ploumis, a faculty adviser, to assist her at the hearing. The record indicates that Dr. Ploumis vigorously advocated for Ms. Kickertz, and he has continued to do so in this proceeding by submitting an affidavit in support of the petition. Ms. Kickertz has failed to demonstrate that the university guidelines or the law in general entitled her to counsel or that having legal representation rather than a faculty adviser would have made a difference. The fact remains that Ms. Kickertz did acknowledge that she had falsified patient records so as to claim that she had provided dental treatment to patients in order to obtain PMV credits for herself, when no such treatment had ever been provided.
A similar result must follow from the analysis of the academic aspects of the decision, where NYU's determination is entitled to even greater deference pursuant to the decision by the Court of Appeals in Tedeschi, supra. The primary claim by Ms. Kickertz is that NYU did not "advertise" the PMV requirement in 2005 when Ms. Kickertz was applying for the program and therefore had no right to expel Ms. Kickertz for failing to fulfill the PMV requirements.
The claim is unavailing. NYU has broad authority to set its curriculum, and it is reasonable to include clinical practice as a requirement for graduation from the College of Dentistry. Ms. Kickertz's attempt to portray the PMV requirements as a money-making venture for NYU, rather than as a serious curriculum requirement, falls flat. As this Court does not and cannot find based on the record presented that NYU's decision to sanction Ms. Kickertz for noncompliance with the PMV requirements was made in bad faith or was [*6]arbitrary and capricious or irrational, the decision may not be annulled under the Tedeschi standard. That Ms. Kickertz may have ultimately fulfilled the PMV requirements does not change the fact that her initial response to notice of the deficiency in PMV credits was to falsify patient records.
The next issue in this Article 78 proceeding is whether the penalty of expulsion without the
possibility of reinstatement is "so disproportionate as to shock one's sense of fairness."
Quercia, 41 AD3d at 297, citing Matter of Pell v Board of Educ. of Union Free
School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, 34 NY2d 222, 233-34 (1974).
Ms. Kickertz argues that the penalty is excessive, noting that her academic performance throughout the program was exemplary and portraying this incident as a single lapse in judgment. She also emphasizes that, because she was able to enter the dentistry program before completing her undergraduate degree, expulsion from NYU leaves her with no degree of any nature after seven years of education and the expenditure of hundreds of thousands of dollars.
While the result is indeed quite awful, this Court does not find that it "shocks the conscience," as that standard has been defined by our appellate courts. Most recently, in Flores v New York University, 79 AD3d 502 (1st Dep't 2010), the First Department upheld NYU's decision to dismiss a student found cheating on an examination, rejecting the claim that expulsion without possibility of reinstatement shocked the conscience. Although Ms. Kickertz correctly notes that the facts there differ somewhat from the facts here, the common factor is the serious ethical breach. Indeed, the ethical breach committed by Ms. Kickertz, which involved the falsification of patient medical records to obtain academic credit for her own benefit, was even more serious than cheating on an exam in the Flores case.
NYU has cited to various other cases where our Appellate Division similarly deferred to the penalty imposed by the educational institution, rejecting any claim that the sanction shocked the conscience. See, e.g., Quercia, supra, 41 AD3d 295 (upholding a two-year suspension and community service for drug possession); Ebert, supra, 28 AD3d 315 (upholding expulsion of a student with a disciplinary history who punched another student); Fernandez, supra, 16 AD3d 227 (upholding one-year suspension form the Business School and permanent bar from access to Career Services, Alumni Affairs, and recruitment events based on harassing communications sent to fellow students). In sum, the standard is a high one, and the decision is fact-laden, with the private educational institution accorded great deference, absent a truly shocking result. It is wholly irrelevant whether this Court might have itself reached a different decision if it had been called upon to determine a sanction in the first instance. The issue instead is whether the expulsion of Ms. Kickertz for her admitted ethical breach shocks the conscience, and this Court cannot say that it does.
The Court next turns to the companion plenary action commenced by Ms. Kickertz against NYU and three faculty members involved in the decision to expel Ms. Kickertz from the College of Dentistry — Ivan Cornejo, David Hershokowitz, and Harry Meeker (Index No. 102462/10). In the voluminous complaint, Ms. Kickertz asserts 16 separate causes of action; namely, (1) false advertising against NYU, (2) breach of contract against NYU, (3) breach of implied duty of good faith and fair dealing against NYU, (4) tortious interference with contract against all defendants, (5) defamation against all defendants, (6) negligence [*7]against all defendants, (7) negligent misrepresentation and negligent infliction of emotional distress against NYU, (8) fraud and deceit, (9) unjust enrichment against NYU, (10) prima facie tort against defendant Meeker, (11) gender discrimination against all defendants, (12) disability discrimination against all defendants, (13) gender discrimination in violation of the Human Rights Law against all defendants, (14) disability discrimination in violation of the Human Rights Law against all defendants, (15) negligent infliction of emotional distress against all defendants, and (16) civil conspiracy against all defendants. Defendants have moved to dismiss the entire action on three grounds: pursuant to CPLR §3211(a)(4) based on a prior action pending (i.e., the Article 78 proceeding discussed above); pursuant to CPLR §3211(a)(1) based on documentary evidence; and pursuant to CPLR §3211(a)(7) for failure to state a cause of action. The motion is granted over plaintiff's vigorous opposition.
First and foremost, while the claims are framed in terms of various statutory and common law violations, the essence of the claims is identical to the claim asserted in the Article 78 proceeding that NYU erred in expelling Ms. Kickertz from the College of Dentistry. Our appellate courts have repeatedly held that such claims against a university should be brought in an Article 78 proceeding. Just last year, for example, in Padiyar v Albert Einstein College of Medicine of Yeshiva University, 73 AD3d 634 (1st Dep't 2010), lv denied 15 NY3d 708, the Appellate Division affirmed the dismissal of a plenary complaint brought by a student challenging the decision made by Albert Einstein College of Medicine of Yeshiva University to terminate him as a full-time research candidate from its joint MD/PhD program. As in this case, the student alleged unlawful discrimination, breach of contract, tortious interference with contract, and breach of the implied covenant of good faith and fair dealing, all related to the university's decision to terminate the student. The Appellate Division affirmed the trial court's decision granting summary judgment, stating that:
The instant plenary complaint, while couched in terms of unlawful discrimination and breach
of contract, is in fact a challenge to a university's academic and administrative decisions and thus
is [subject to] the four-month statute of limitations for a CPLR article 78 proceeding, the
appropriate vehicle for such a challenge.
73 AD3d at 635, citing Maas v Cornell Univ., 94 NY2d 87, 92 (1999); Risley v Rubin 272 AD2d 198 (2000), lv denied 96 NY2d 701 (2001).
Similarly, in Maas, supra, the Court of Appeals affirmed the dismissal of a breach of contract claim asserted in a plenary action by a professor whose employment had been terminated. As in the case at bar, the plaintiff claimed that the university had failed to follow its own written guidelines. The court held that an Article 78 proceeding was the appropriate vehicle for the challenge, stating that:
Notably, when litigants fail to avail themselves of the CPLR article 78 avenue, courts may
justifiably dismiss plenary claims premised upon alleged failures to follow applicable principles
set forth in employee handbooks.
94 NY2d at 92, citing Holm v Ithaca College, 256 AD2d 986, 988, lv denied 93 NY2d 804. See also, Eidlisz v New York University, 15 NY3d 730, 732 (2010)("If, however, [*8]defendants' decision [to deny plaintiff his degree] was in fact based upon plaintiff's academic performance, the action should have been brought as a proceeding under article 78, subject to review solely for arbitrariness or irrationality ...").
Based on these holdings, defendants here are entitled to the dismissal of this action based on the dismissal of the claims asserted in the Article 78 proceeding, which was the proper vehicle to challenge the university's decision to expel Ms. Kickertz.
What is more, an analysis of the sixteen causes of action asserted here necessarily leads to the same result. In her first cause of action claiming false advertising, Ms. Kickertz contends that NYU failed to advertise its plan to implement a PMV requirement. However, NYU had no duty to advertise each and every element of its curriculum. Moreover, the claim must fail in light of the College's right to change its curriculum and degree requirements, so long as the changes are not arbitrary and capricious. See, Skillgames v Brody, 1 AD3d 247 (1st Dep't 2003). As discussed above, it is reasonable for the College of Dentistry to include practical experience as part of its program.
In the second cause of action for breach of contract and the third for breach of an implied duty of good faith and fair dealing, Ms. Kickertz contends that NYU breached its duty to award a degree based on the tuition paid. However, Ms. Kickertz was obligated to do more than pay tuition before she was entitled to a degree. Specifically, she was obligated to fulfill the curriculum requirements completely and ethically, including the PMV requirements. Thus, even assuming the law allowed her to assert the claim outside of her Article 78 proceeding, the claim must fail.
Ms. Kickertz contends in her fourth cause of action that NYU tortiously interfered with her contract with Boston University's residency program, which she was scheduled to attend upon graduation from NYU. As the claim does little more than challenge NYU's expulsion decision and fails to allege any independent tort, Ms. Kickertz has failed to state a claim for relief. See, Carvel Corp. v Noonan, 3 NY3d 182 (2004).
Wholly devoid of merit is the fifth cause of action alleging defamation based on statements that the faculty made to NYU's General Counsel. These statements made with a legitimate purpose are protected by the "common interest privilege." See, Sieger v Union of Orthodox Rabbis of U.S. and Canada, Inc., 1 AD3d 180 (1st Dep't 2003), lv denied, 3 NY3d 604 (2004). The common interest privilege creates a rebuttable presumption of good faith that is a complete defense to defamation, absent proof of malice. No proof of malice exists here, notwithstanding the conclusory claims by Ms. Kickertz to the contrary.
Nor is there any merit to the negligence claims asserted in the sixth and seventh causes of action. Negligence requires proof of a duty to the plaintiff and a breach of that duty that causes injury. Levine v New York, 309 NY 88. Here Ms. Kickertz contends that NYU breached its duty to hire and retain qualified faculty and to appropriately administer its program, but she has failed to specify how NYU breached that duty. As to the claim of negligent misrepresentation regarding NYU's purported failure to explain the PMV requirements in advance, that, too, must fail absent a special relationship between the parties creating a duty to impart correct information, as well as a misrepresentation extraneous to the contract itself. Kimmell v Schaefer, 89 NY2d 257 (1996). Those elements have not been satisfied here. Regarding the claimed negligent infliction of emotional distress, beyond the title of the seventh cause of action, no reference is made to the claim in that cause of action. [*9]
The eighth cause of action alleges fraud and deceit based on allegedly false representations made by NYU about the inclusion of the PMV requirements in the curriculum. The claim is subject to dismissal as it is duplicative of the breach of contract claim. Marcus v The Lindsley F. Kimball Research Inst., 24 AD3d 187 (1st Dep't 2005). Further, the claim is not particularized beyond the general statement that NYU failed to disclose to Ms. Kickertz at the inception of the program that it might change the curriculum to include a PMV requirement. Absent particulars, a fraud claim must be dismissed. Eurycleia Partners, LLP v Seward Kissell, LLP, 12 NY3d 553 (2009). What is more, as noted above, a university has the right to change its curriculum to include reasonable requirements.
The ninth cause of action for unjust enrichment can only survive in the absence of an agreement between the parties. Goldman v Metro. Life Ins. Co., 5 NY3d 561 (2005). The university's bulletins, regulations and written guidelines create an agreement between the parties, thus precluding a claim for unjust enrichment. Tedeschi, 49 NY2d at 660. Further, defendant correctly notes that Ms. Kickertz did receive educational benefits in exchange for the tuition paid, even though she was denied her degree based on the findings made in the disciplinary proceedings.
In her tenth cause of action asserted against Dr. Meeker only, Ms. Kickertz alleges prima
facie tort. The claim is barred by the one year statute of limitations. Angel v Bank of Tokyo-Mitsubishi,
Ltd., 39 AD3d 368 (1st Dep't 2007). Further, Ms. Kickertz's allegations
fail to define an actionable wrong.
Counts eleven and twelve sound in discrimination based on gender and disability under State Law, respectively, and counts thirteen and fourteen assert similar claims under the City Human Rights Law. All the claims must fail. To state a claim of discrimination, Ms. Kickertz must show that she was "otherwise qualified" to graduate. See Brown v Albert Einstein College of Medicine of Yeshiva University, 172 AD2d 197 (1st Dep't 1991). Since she admittedly falsified patient treatment records and thereby violated the ethical code, Ms. Kickert was not otherwise qualified to graduate.
The fifteenth cause of action for negligent infliction of emotional distress lacks merit for the same reason that the other negligence claims lack merit. The civil conspiracy claim in count sixteen is so specious that it borders on the frivolous. There certainly was no grand scheme on the part of the NYU faculty to engage in any conduct that was harmful to Ms. Kickertz. Evidence came to light that suggested that Ms. Kickertz had falsified records, and NYU conducted a disciplinary proceeding that confirmed the falsification and then assessed the penalty of expulsion. For the reasons discussed above in the context of the Article 78 review, NYU's decision is entitled to judicial deference here.
This Court has no doubt that NYU's expulsion decision has had a devastating effect on Katie Kickertz. However, this Court is obligated to apply the law, and the sad result cannot override the fact that no legal basis exists to set aside NYU's decision to expel Ms. Kickertz from the College of Dentistry based on her falsification of patient records for her own benefit.
Accordingly, it is hereby
ORDERED that the motion by respondent New York University to dismiss the above-captioned Article 78 proceeding is granted; and it is further [*10]
ADJUDGED that the Article 78 petition is denied and the proceeding is dismissed without costs or disbursements; and it is further
ORDERED that the defendants' motion to dismiss the plenary action (Index No. 103462/10)
is granted and the complaint is dismissed without costs and disbursements.
Dated: February 3, 2011