Preview
FILED: NEW YORK COUNTY CLERK 01/02/2019 10:35 AM INDEX NO. 152210/2018
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
-------- ----------------------------------------------- -----------x
In the Matter of the Application of
xxxxxxx xxxxxxxxxxxx,
Petitioner,
for Judgment pursuant to Art. 78, CPLR
Index No.: 152210/2018
-against-
NEW YORK UNIVERSITY,
Respondent.
-----------------------------------------------------------------------------x
NOTICE OF ENTRY OF ORDER
PLEASE TAKE NOTICE that the within is a true copy of a Decision & Order of
the Honorable Lynn R. Kotler of the Supreme Court, County of New York, decided on
December 24, 2018, and duly entered in the office of the clerk of the Supreme Court of the State
ofNew York, County ofNew York, on Deceñiber 24, 2018.
Respectfully submitted,
JACKSON LEWIS P.C.
14th
44 South Broadway, FlOOr
White Plains, New York 10601
872- 0
(914)
By:
usan D. Fried
Rebecca M. M Clos y
ATTORNEYS EO RESPONDENT
Dated: White Plains, New York
January 2, 2019
1 of 4
FILED: NEW YORK COUNTY CLERK 01/02/2019 10:35 AM INDEX NO. 152210/2018
NYSCEF DOC. NO. 43 RECEIVED INDEX NO.
NYSCEF: 152210 /2018
01/02/2019
NYSCEF DOC. NO. 40
RECEIVED NYSCEF: 12/24/2018
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY
PRESENT: HON.LYNN R. KOTLER, J.S.C. PART 8
xxxxxxx xxxxxxxxxxxx INDEX NO. 152210/18
MOT. DATE
- v -
MOT. SEQ. NO. 001, 002 and 003
NEW YORK UNIVERSITY
The following papers were read on thismotion to/for art78
Notice of Motion/Petition/O.S.C. - Affidavits- Exhibits NYSCEF DOC No(s).
Notice ofCross-Motion/Answering Affidavits- Exhibits NYSCEF DOC No(s).
Replying Affidavits NYSCEF DOC No(s).
Previously, petitioner was enrolled with the resp0ñdent as a PhD student in itschemical engineering
program. In thisCPLR Article 78 proceeding, petitioner seeks to challenge respondent's decision to not
permit her to pursue a master's degree in chemical engineering following her disqualification from the
PhD program. Petitioner seeks a Judgment directing respondent to reinstate her in order to complete a
master's degree and a declaration that respondent's actions were arbitrary and capricious, as well as
expungement of records, tuition refund and damages for breach of contract.
Three motion sequences are before the court presently. The firstisthe petition itselfand re-
pending
spondent has filed an answer. The second is respondent's motion to dismiss which petitioner opposes.
The third motion is petitioner for discovery. Respondent opposes that motion. All three mo-
by limited
tions are hereby consolidated for the court's coñsideration and disposition in thissingle decision/order.
For the reasons that follow, the petition is denied, the motion for discovery is denied and the motion to
dismiss is denied as moot.
In an Article 78 preceeding, the applicable standard of review is whether the administrative decision:
was made in viciation of lawful procedure; affected by an error of Iaw; or arbitrary or capricious or an
abuse of discretion, including whether the penalty imposed was an abuse of discretion (CPLR § 7803
[3]). In Matter of Olsson v Board of Higher Educ. Of City of NX the Court of Appeals explained that
the decision of an educational institution with regards to the issuance of a diploma to one of itsstudents
is afforded great deference, and should only be disturbed "ifan institution exercises itsdiscretion in an
or irrational fashion (49 NY2d 414 [19801). This precedent is based upon public be-
arbitrary 408, policy
cause "[w]hen an educational institution issues a diploma to one of itsstudents, itis, ineffect, certifying
to society that the student possesses allof the knew|êdge and skillsthat are required his [or
by her]
discipline"
chosen (/d. at 413).
On this record, there can be no dispute that petitioner did not comport with re d t'sacademic
p
Dated:
HON. LYNN R. KOTLER, J.S.C.
1. Check one: CASE DISPOSED NON-FINAL DISPOSITION
2. Check as appropriate: Motion is OGRANTED DENIED O GRANTED IN PART O OTHER
3. Check ifappropriate: OSETTLE ORDER O SUBMIT ORDER O DO NOT POST
O FIDUCIARY APPOINTMENT O REFERENCE
Page 1 of 3
1 of 3
2 of 4
FILED: NEW YORK COUNTY CLERK 01/02/2019 10:35 AM INDEX NO. 152210/2018
NYSCEF DOC. NO. 43 RECEIVED INDEX NO.
NYSCEF: 1 501/02/2019
2210/ 2018
NYSCEF DOC. NO. 40
RECEIVED NYSCEF: 12/24/2018
ORDERED and ADJUDGED that that the petition is denied and this proceeding is disraissed; and
itis further
ORDERED that the motion to dismiss is denied as moot.
Any requested relief not expressly addressed herein has nonetheless been considered and is
hereby expressly denied and this constitutes the Decision and Order of the court.
Ordered·
Dated: ) So
New ork, New York
Hon. Lynn R. Kotler, J.S.C.
Page 3 of 3
3 of 3
3 of 4
FILED: NEW YORK COUNTY CLERK 01/02/2019 10:35 AM INDEX NO. 152210/2018
NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/02/2019
SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF NEW YORK
--------------------------------------------------- ------------------------x
In the Matter of the Application of
xxxxxxx xxxxxxxxxxxx,
Petitioner,
for Jüdgmcat pursuant to Art, 78, CPLR
Index No.: 152210/2018
-against-
NEW YORK UNIVERSITY,
Respondent,
_____________..._____ ________________ _________________________.x
AFFIRMATION OF SERVICE
Rebeca M. McCloskey, an attorney duly admitted to practice law before the
Courts of the State of New York, hereby affirms that on this January 2, 2019, a true and correct
copy of the foregoing Notice Of Entry Of Order was served via NYSCEF and UPS upon
Plaintiff's counsel of record at the address listed below:
Stewart Lee Karlin, Esq.
Daniel E. Dugan, Esq.
Stewart Lee Karlin Law Group P.C.
22nd
111 John Street, FlOOr
New York, New York 10038
(212) 792-9670
Attorneysfor Petitioner
/4(ebecca M. McCloskey )
v. 1
4022-7945-3814,
4 of 4
Preview
FILED: NEW YORK COUNTY CLERK 01/02/2019 10:35 AM INDEX NO. 152210/2018 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK -------- ----------------------------------------------- -----------x In the Matter of the Application of xxxxxxx xxxxxxxxxxxx, Petitioner, for Judgment pursuant to Art. 78, CPLR Index No.: 152210/2018 -against- NEW YORK UNIVERSITY, Respondent. -----------------------------------------------------------------------------x NOTICE OF ENTRY OF ORDER PLEASE TAKE NOTICE that the within is a true copy of a Decision & Order of the Honorable Lynn R. Kotler of the Supreme Court, County of New York, decided on December 24, 2018, and duly entered in the office of the clerk of the Supreme Court of the State ofNew York, County ofNew York, on Deceñiber 24, 2018. Respectfully submitted, JACKSON LEWIS P.C. 14th 44 South Broadway, FlOOr White Plains, New York 10601 872- 0 (914) By: usan D. Fried Rebecca M. M Clos y ATTORNEYS EO RESPONDENT Dated: White Plains, New York January 2, 2019 1 of 4 FILED: NEW YORK COUNTY CLERK 01/02/2019 10:35 AM INDEX NO. 152210/2018 NYSCEF DOC. NO. 43 RECEIVED INDEX NO. NYSCEF: 152210 /2018 01/02/2019 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 12/24/2018 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PRESENT: HON.LYNN R. KOTLER, J.S.C. PART 8 xxxxxxx xxxxxxxxxxxx INDEX NO. 152210/18 MOT. DATE - v - MOT. SEQ. NO. 001, 002 and 003 NEW YORK UNIVERSITY The following papers were read on thismotion to/for art78 Notice of Motion/Petition/O.S.C. - Affidavits- Exhibits NYSCEF DOC No(s). Notice ofCross-Motion/Answering Affidavits- Exhibits NYSCEF DOC No(s). Replying Affidavits NYSCEF DOC No(s). Previously, petitioner was enrolled with the resp0ñdent as a PhD student in itschemical engineering program. In thisCPLR Article 78 proceeding, petitioner seeks to challenge respondent's decision to not permit her to pursue a master's degree in chemical engineering following her disqualification from the PhD program. Petitioner seeks a Judgment directing respondent to reinstate her in order to complete a master's degree and a declaration that respondent's actions were arbitrary and capricious, as well as expungement of records, tuition refund and damages for breach of contract. Three motion sequences are before the court presently. The firstisthe petition itselfand re- pending spondent has filed an answer. The second is respondent's motion to dismiss which petitioner opposes. The third motion is petitioner for discovery. Respondent opposes that motion. All three mo- by limited tions are hereby consolidated for the court's coñsideration and disposition in thissingle decision/order. For the reasons that follow, the petition is denied, the motion for discovery is denied and the motion to dismiss is denied as moot. In an Article 78 preceeding, the applicable standard of review is whether the administrative decision: was made in viciation of lawful procedure; affected by an error of Iaw; or arbitrary or capricious or an abuse of discretion, including whether the penalty imposed was an abuse of discretion (CPLR § 7803 [3]). In Matter of Olsson v Board of Higher Educ. Of City of NX the Court of Appeals explained that the decision of an educational institution with regards to the issuance of a diploma to one of itsstudents is afforded great deference, and should only be disturbed "ifan institution exercises itsdiscretion in an or irrational fashion (49 NY2d 414 [19801). This precedent is based upon public be- arbitrary 408, policy cause "[w]hen an educational institution issues a diploma to one of itsstudents, itis, ineffect, certifying to society that the student possesses allof the knew|êdge and skillsthat are required his [or by her] discipline" chosen (/d. at 413). On this record, there can be no dispute that petitioner did not comport with re d t'sacademic p Dated: HON. LYNN R. KOTLER, J.S.C. 1. Check one: CASE DISPOSED NON-FINAL DISPOSITION 2. Check as appropriate: Motion is OGRANTED DENIED O GRANTED IN PART O OTHER 3. Check ifappropriate: OSETTLE ORDER O SUBMIT ORDER O DO NOT POST O FIDUCIARY APPOINTMENT O REFERENCE Page 1 of 3 1 of 3 2 of 4 FILED: NEW YORK COUNTY CLERK 01/02/2019 10:35 AM INDEX NO. 152210/2018 NYSCEF DOC. NO. 43 RECEIVED INDEX NO. NYSCEF: 1 501/02/2019 2210/ 2018 NYSCEF DOC. NO. 40 RECEIVED NYSCEF: 12/24/2018 ORDERED and ADJUDGED that that the petition is denied and this proceeding is disraissed; and itis further ORDERED that the motion to dismiss is denied as moot. Any requested relief not expressly addressed herein has nonetheless been considered and is hereby expressly denied and this constitutes the Decision and Order of the court. Ordered· Dated: ) So New ork, New York Hon. Lynn R. Kotler, J.S.C. Page 3 of 3 3 of 3 3 of 4 FILED: NEW YORK COUNTY CLERK 01/02/2019 10:35 AM INDEX NO. 152210/2018 NYSCEF DOC. NO. 43 RECEIVED NYSCEF: 01/02/2019 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK --------------------------------------------------- ------------------------x In the Matter of the Application of xxxxxxx xxxxxxxxxxxx, Petitioner, for Jüdgmcat pursuant to Art, 78, CPLR Index No.: 152210/2018 -against- NEW YORK UNIVERSITY, Respondent, _____________..._____ ________________ _________________________.x AFFIRMATION OF SERVICE Rebeca M. McCloskey, an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms that on this January 2, 2019, a true and correct copy of the foregoing Notice Of Entry Of Order was served via NYSCEF and UPS upon Plaintiff's counsel of record at the address listed below: Stewart Lee Karlin, Esq. Daniel E. Dugan, Esq. Stewart Lee Karlin Law Group P.C. 22nd 111 John Street, FlOOr New York, New York 10038 (212) 792-9670 Attorneysfor Petitioner /4(ebecca M. McCloskey ) v. 1 4022-7945-3814, 4 of 4