Preview
FILED: NEW YORK COUNTY CLERK 01/28/2019 01:15 PM INDEX NO. 152210/2018
NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 01/28/2019
EXHIBIT “A”
FILED:
FILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 01/28/2019
01/02/2019 01:15
10 : 35 PM
AMI
INDEX
INDEX NO.
NO. 152210/2018
152210/2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 45
43 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 01/28/2019
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 entered in the office of the clerk of the Supreme Court of the State
duly
of New York, County of New York, on December 24, 2018.
Respectfully submitted,
JACKSON LEWIS P.C.
14th
44 South Broadway, Floor
White Plains, New York 10601
872- 0
(914)
usan D. Fried‡dl
Rebecca M. M6Clos y
ATTORNEYS EG RESPONDENT
Dated: White Plains, New York
January 2, 2019
1 of 4
|FILED
FILED: : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 01/28/2019 INDEX NO. 152210/2018
01/02 /26f9--f0-3501:15 PM
-754
mDEXEX NO 1
NYSCEF DOC. NO.
NYSCEF DOC. NO. 4543 RECEIVED
RECEIVED
NYSCEF:
NYSCEF:
15125210 /20
01/28/2019
NYSCEF DOC. NO. 40 01/02/201
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, petiticñer was enrolled with the respondent 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 fo!!owing her disque!ification 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 presently. The firstisthe petition itselfand re-
pending court
sporident has filed an añswsi. The second is respondent's motion to dismiss which petitioner appases.
The third motion is for discovery. Respondent opposes that motion. All three mo-
by petitioner limited
tions are hereby consolidated for the court's ccñsideraticñ and disposition in thissingle decision/order.
For the reasons that follow, the petition is denied, the motion for discovery is denied and the matiõñ to
dismiss is denied as moot.
In an Article 78 proceeding, the applicable standard of review is whether the administrative decision:
was made in vic:ãtism 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 ofHigher 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 irrationai fashion (49 NY2d 414 [19801). This precedent is based upon public be-
arbitrary 408, policy
cause "[w]hen an educational institution issues a diplcma to one of itsstudents, itis, ineffect, certifying
to society that the student pessesses allof the knowledge 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:
FILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 01/28/2019
01/02/2019 01:15
10:35 PM
AM|
INDEX
INDEX NO.
NO. 152210/2018
152210/2018
INDEX NO. 152210/2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 45
43 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 01/28/2019
01/02/201S
NYSCEF NO. 40 RECEIVED NYSCEF: 12/24/2018
DOC.
and this is dismissed; and
ADJUDGED that that the petiticñ is denied proceeding
ORDERED and
itis further
maticñ to dismiss is denied as moot.
ORDERED that the
nonetheless been ccñsidered and is
relief not addressed herein has
Any requested exprèssly
ccñstitutes the Decisice and Order of the court.
denied and this
hereby expressly
So Ordere
Dated: I
New rk, New York
Hon. Lynn FCKotler, J.S.C.
Page 3 of3
3 of 3
3 of 4
FILED:
FILED : NEW
NEW YORK
YORK COUNTY
COUNTY CLERK
CLERK 01/28/2019
01/02/2019 01:15
10:35 PM
AM|
INDEX
INDEX NO.
NO. 152210/2018
152210/2018
NYSCEF
NYSCEF DOC.
DOC. NO.
NO. 45
43 RECEIVED
RECEIVED NYSCEF:
NYSCEF: 01/28/2019
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
__.
AFFIRMATION OF SERVICE
Rebeca M. an admitted to practice law before the
McCloskey, attorney duly
Courts of the State of New affirms that on this 2, 2019, a true and correct
York, hereby January
of the Notice Of Of Order was served via NYSCEF and UPS upon
copy foregoing Entry
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.
111 John Street, 22ndFlOOr
New York, New York 10038
(212) 792-9670
Attorneysfor Petitioner
/4(ebecca M. McCloskey
v. 1
4822-7945-3814,
.-
4 of 4
Preview
FILED: NEW YORK COUNTY CLERK 01/28/2019 01:15 PM INDEX NO. 152210/2018 NYSCEF DOC. NO. 45 RECEIVED NYSCEF: 01/28/2019 EXHIBIT “A” FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/28/2019 01/02/2019 01:15 10 : 35 PM AMI INDEX INDEX NO. NO. 152210/2018 152210/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 45 43 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/28/2019 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 entered in the office of the clerk of the Supreme Court of the State duly of New York, County of New York, on December 24, 2018. Respectfully submitted, JACKSON LEWIS P.C. 14th 44 South Broadway, Floor White Plains, New York 10601 872- 0 (914) usan D. Fried‡dl Rebecca M. M6Clos y ATTORNEYS EG RESPONDENT Dated: White Plains, New York January 2, 2019 1 of 4 |FILED FILED: : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/28/2019 INDEX NO. 152210/2018 01/02 /26f9--f0-3501:15 PM -754 mDEXEX NO 1 NYSCEF DOC. NO. NYSCEF DOC. NO. 4543 RECEIVED RECEIVED NYSCEF: NYSCEF: 15125210 /20 01/28/2019 NYSCEF DOC. NO. 40 01/02/201 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, petiticñer was enrolled with the respondent 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 fo!!owing her disque!ification 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 presently. The firstisthe petition itselfand re- pending court sporident has filed an añswsi. The second is respondent's motion to dismiss which petitioner appases. The third motion is for discovery. Respondent opposes that motion. All three mo- by petitioner limited tions are hereby consolidated for the court's ccñsideraticñ and disposition in thissingle decision/order. For the reasons that follow, the petition is denied, the motion for discovery is denied and the matiõñ to dismiss is denied as moot. In an Article 78 proceeding, the applicable standard of review is whether the administrative decision: was made in vic:ãtism 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 ofHigher 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 irrationai fashion (49 NY2d 414 [19801). This precedent is based upon public be- arbitrary 408, policy cause "[w]hen an educational institution issues a diplcma to one of itsstudents, itis, ineffect, certifying to society that the student pessesses allof the knowledge 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: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/28/2019 01/02/2019 01:15 10:35 PM AM| INDEX INDEX NO. NO. 152210/2018 152210/2018 INDEX NO. 152210/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 45 43 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/28/2019 01/02/201S NYSCEF NO. 40 RECEIVED NYSCEF: 12/24/2018 DOC. and this is dismissed; and ADJUDGED that that the petiticñ is denied proceeding ORDERED and itis further maticñ to dismiss is denied as moot. ORDERED that the nonetheless been ccñsidered and is relief not addressed herein has Any requested exprèssly ccñstitutes the Decisice and Order of the court. denied and this hereby expressly So Ordere Dated: I New rk, New York Hon. Lynn FCKotler, J.S.C. Page 3 of3 3 of 3 3 of 4 FILED: FILED : NEW NEW YORK YORK COUNTY COUNTY CLERK CLERK 01/28/2019 01/02/2019 01:15 10:35 PM AM| INDEX INDEX NO. NO. 152210/2018 152210/2018 NYSCEF NYSCEF DOC. DOC. NO. NO. 45 43 RECEIVED RECEIVED NYSCEF: NYSCEF: 01/28/2019 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 __. AFFIRMATION OF SERVICE Rebeca M. an admitted to practice law before the McCloskey, attorney duly Courts of the State of New affirms that on this 2, 2019, a true and correct York, hereby January of the Notice Of Of Order was served via NYSCEF and UPS upon copy foregoing Entry 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. 111 John Street, 22ndFlOOr New York, New York 10038 (212) 792-9670 Attorneysfor Petitioner /4(ebecca M. McCloskey v. 1 4822-7945-3814, .- 4 of 4