Not Motion in Liyanagamage Ranganath Prabashwara Dias v. University Of Rochester| Trellis.Law

On February 14, 2024 a Party Notice was filed involving a dispute between Liyanagamage Ranganath Prabashwara Dias, and University Of Rochester, for Special Proceedings - CPLR Article 78 in the District Court of Monroe County.

Preview
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM INDEX NO. E2024003035
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/22/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt # 3835047

Book Page CIVIL

Return To: No. Pages: 10
LAURA H. HARSHBARGER
Instrument: NOTICE OF ENTRY

Control #: 202404221542
Index #: E2024003035

Date: 04/22/2024

Dias, Liyanagamage Ranganath Prabashwara Time: 2:58:18 PM

University of Rochester

Total Fees Paid: $0.00

Employee:

State of New York

MONROE COUNTY CLERK’S OFFICE
WARNING – THIS SHEET CONSTITUTES THE CLERKS
ENDORSEMENT, REQUIRED BY SECTION 317-a(5) &
SECTION 319 OF THE REAL PROPERTY LAW OF THE
STATE OF NEW YORK. DO NOT DETACH OR REMOVE.

JAMIE ROMEO

MONROE COUNTY CLERK

1 of 10
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/22/2024

STATE OF NEW YORK
SUPREME COURT COUNTY OF MONROE

In the Matter of the Application of

LIYANAGAMAGE RANGANATH PRABASHWARA
DIAS,

Petitioner,
Index No. E2024003035
-against-
NOTICE OF ENTRY
UNIVERSITY OF ROCHESTER,

Respondent.

for a Judgment pursuant to Article 78
of the Civil Practice Law and Rules

PLEASE TAKE NOTICE, that the Decision and Order issued by the Hon. Joseph

D. Waldorf and attached hereto was duly issued in the above-referenced action on April

19, 2024, and duly entered in the office of the Monroe County Clerk on April 19, 2024.

Dated: April 22, 2024 BOND, SCHOENECK & KING, PLLC

By: s/ Laura H. Harshbarger

Laura H. Harshbarger, Esq.
Attorneys for Respondent
University of Rochester
One Lincoln Center
Syracuse, New York 13202
Telephone: 315.218.8000
Facsimile:; 315.218.8100
Email: lharshbarger@bsk.com

17715872.3 4/22/2024

2 of 10
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/22/2024

TO: J. Morgan Levy, Esq.(via NYSCEF electronic filing)
Attorney for Petitioner
J. Morgan Levy Firm
24 N. Main Street, Ste 2
Fairport, NY 14450
E: Morgan@jmorganlevyfirm.com
P: 585-678-1160

2
17715872.3 4/22/2024

3 of 10
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110 RECEIVED NYSCEF: 04/22/2024

CERTIFICATE OF SERVICE

I certify that on April 22, 2024 I served a copy of the attached Notice of Entry by

filing a copy of same on the NYSCEF filing system on the following:

J. Morgan Levy, Esq.(via NYSCEF electronic filing)
Attorney for Petitioner
J. Morgan Levy Firm
24 N. Main Street, Ste 2
Fairport, NY 14450
E: Morgan@jmorganlevyfirm.com
P: 585-678-1160

s/ Cynthia Reid
Cynthia Reid

3
17715872.3 4/22/2024 3213466.1

4 of 10
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110
108 RECEIVED NYSCEF: 04/22/2024
04/19/2024
MONROE COUNTY CLERK’S OFFICE THIS IS NOT A BILL. THIS IS YOUR RECEIPT.

Receipt #

Book Page

Return To: No. Pages: 6
Joseph D. Waldorf
99 Exchange Boulevard Instrument: MISCELLANEOUS DOCUMENT
Rochester, NY 14614
Control #: Unrecorded #9779947
Index #: E2024003035

Date:

Dias, Liyanagamage Ranganath Prabashwara Time:

University of Rochester

Total Fees Paid: $0.00

Employee:

State of New York

JAMIE ROMEO

MONROE COUNTY CLERK

51 of
of 10
6
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110
108 RECEIVED NYSCEF: 04/22/2024
04/19/2024

SUPREME COURT OF THE STATE OF NEW YORK
COUNTY OF MONROE
___________________________________________

In the Matter of the Application of
LIYANAGAMAGE RANGANATH
PRABASHWARA DIAS,

Petitioner,
DECISION, ORDER
& JUDGMENT
Index No. E2024003035
Index No. E2023014993
vs.

UNIVERSITY OF ROCHESTER,

Respondent.
____________________________________________

Submitted on April 12, 2024
Counsel:
J. Morgan Levy, Esq., J. Morgan Levy Firm PLLC, for Liyanagamage
Ranganath Prabashwara Dias (“Petitioner”).
Laura H. Harshbarger, Esq. and Liza R. Magley, Esq., Bond, Schoeneck &
King, PLLC, for University of Rochester (“Respondent”).

Joseph D. Waldorf, J.,
This case presents the question of whether or not a non-tenured
assistant professor accused of research misconduct may utilize an article 78
proceeding to prohibit a university from concluding its investigation and enjoin
the university from taking any adverse employment action until the professor’s
other grievances are adjudicated. Because the petition has been brought
before Respondent’s final determination it is not ripe for judicial review and
thus it is hereby ADJUDGED that the petition is DENIED and the proceeding is
DISMISSED as premature.1

1Petitioner’s requests for a preliminary injunction and evidentiary hearing are thus rendered
academic.

62 of
of 10
6
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110
108 RECEIVED NYSCEF: 04/22/2024
04/19/2024

In 2017, Petitioner was hired as a non-tenured assistant professor for
Respondent’s Departments of Mechanical Engineering and Physics and
Astronomy. Petitioner’s research was funded by awards from the National
Science Foundation (“NSF”) and he published articles based on said research in
leading scientific journals including Nature, Physical Review Letters, and
Chemical Communications. These articles were later retracted by the
publishers. In March of 2023, NSF notified Respondent concerning complaints
alleging that Petitioner committed research misconduct. NSF thus directed
Respondent to conduct an investigation into the allegations.
Respondent thereafter initiated the procedures contained in its Research
Misconduct Policy which has four stages: 1) allegation; 2) inquiry; 3)
investigation; and 4) adjudication and further action (NY St Cts Elec Filing
[NYSCEF] Doc No. 55, copy of the University’s Policy on Research Misconduct
at ¶ 16). Specifically, pursuant to the Research Misconduct Policy’s stages,
Respondent’s Provost has recommended Petitioner’s termination and that
recommendation is pending before a University Committee on Tenure and
Privileges (“UCTP”). Pursuant to the Faculty Handbook’s provisions concerning
research misconduct, the UCTP’s hearing committee must “accept the results
of University investigations…completed under those policies as the factual
basis concerning the alleged policy violations.” (NYSCEF Doc No. 7, Faculty
Handbook at 46). The UCTP – where Petitioner has a right to be heard – will
make its recommendations which will be put before Respondent’s President.
Should the President determine that termination is warranted, the Board of
Trustees will make the final decision.
Prior to a final determination by Respondent, Petitioner commenced the
instant article 78 proceeding seeking a judgment that Respondent’s research
misconduct investigation determination is arbitrary and capricious and that
Respondent be “enjoined from taking any adverse action against Petitioner
until a grievance committee establishes an unbiased factual record and an
unbiased investigation committee is convened to evaluate the allegations of
research misconduct.” (NYSCEF Doc No. 1, Petition at 25).
2

73 of
of 10
6
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110
108 RECEIVED NYSCEF: 04/22/2024
04/19/2024

Petitioner alleges that the Investigation Committee is biased, conflicted,
and improperly constituted in several respects. Additionally, prior to the
Investigation Committee concluding its work, Petitioner’s students were
removed from his laboratory, teaching, and mentoring duties. This, Petitioner
alleges – amongst several other actions by Respondent – constitutes further
evidence of Respondent’s pre-determination of his guilt.
As a preliminary matter, a previous article 78 petition involving the same
parties and related issues was commenced on December 13, 2023 under Index
No. E2023014993 (NYSCEF Doc No. 1, combined Notice of Petition and
Petition). That proceeding involves the same parties and overlaps with some of
the issues presented in Index No. E2024003035. Because the Notice of
Petition and Petition under Index No. E2023014993 were filed in a combined
document, a return date had not been set. Ultimately, at oral argument upon
Index No. E2024003035 the parties agreed that the petition and issues
presented under Index No. E2023014993 were subsumed into the petition
contained in Index No. E2024003035. Upon the parties’ joint assent that the
petition under Index No. E2023014993 was subsumed under Index No.
E2024003035, the Court Orders the matters consolidated and merged under
Index No. E2024003035.
Turning to a second preliminary issue, the Court must consider
Respondent’s seventh and eighth affirmative defenses and objections in point of
law that the matter is not ripe for judicial review upon Petitioner’s alleged
failure to exhaust administrative remedies and that the determination sought
to be reviewed is non-final. The Court agrees.
“[A]bsent extraordinary circumstances, courts are constrained not to
interject themselves into ongoing administrative proceedings until final
resolution of those proceedings…” (Tahmisyan v Stony Brook University, 74
AD3d 829 [2d Dept 2010] [dismissing article 78 proceeding to prohibit receipt
of evidence in academic disciplinary hearing where said hearing has not yet
been held and as such the issues “are not yet ripe for judicial review.”]; see also
e.g., Matter of Williams, 245 AD2d 1014 [4th Dept 1997] [reversing Supreme
3

84 of
of 10
6
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110
108 RECEIVED NYSCEF: 04/22/2024
04/19/2024

Court order staying professional misconduct proceeding pending determination
of evidentiary dispute]). Under CPLR 7801, an article 78 proceeding “shall not
be used to challenge a determination…which is not final…”
Here, both parties agree that Respondent’s research misconduct
committee report – labeled as a “Final Investigation Report” – has been
completed thus the findings of research misconduct are indeed considered
final. However, there exists additional adjudicative administrative steps before
a final determination as to what sanctions, if any, may be rendered by
Respondent. Specifically, the faculty committee must consider the Provost’s
recommendation to terminate Petitioner and issue its own recommendations;
the President must review those recommendations and make his or her own
determination. And only if the President determines that termination is
warranted is the issue presented to the Board of Trustees to make the final
decision.
As such, Petitioner invites judicial intervention during preliminary steps
of Respondent’s decision-making process; the Court declines this invitation
(See generally, Rochester Telephone Mobile Communications v Ober, 251 AD2d
1053, 1054 [4th Dept 1998] [dismissing article 78 proceeding on ripeness
grounds seeking review of non-final agency determinations where “[t]he alleged
harm ‘may be prevented or significantly ameliorated by further administrative
action or by steps available to the complaining party.’”]; Essex County v Zagata,
91 NY2d 447, 453-56 [1998]). Based on additional administrative steps yet to
be taken – some of which invite Petitioner’s involvement – and a final and
binding determination yet to be made by Respondent, the instant petition is
not ripe for judicial review.
Accordingly, it is hereby
ORDERED, that Index No. E2023014993 is consolidated and fully
merged into a single special proceeding under Index No. E2024003035, and it
is further

95 of
of 10
6
202404221542 04/22/2024 02:58:18 PM CIVIL
202404221542
INDEX NO. E2024003035
FILED: MONROE COUNTY CLERK 04/22/2024 02:56 PM
NYSCEF DOC. NO. 110
108 RECEIVED NYSCEF: 04/22/2024
04/19/2024

ADJUDGED, that the petition is DENIED and the proceeding is
DISMISSED as premature. Any arguments or prayers for relief not specifically
addressed herein are rendered academic.

Dated: April 19, 2024
Rochester, New York

__________________________
Honorable Joseph D. Waldorf
Supreme Court Justice

10
6 of 10
6

Case Info

Judge

Joseph D. Waldorf Track Judge’s New Case

Case No.

(Subscribe to View)

Document Filed Date

April 22, 2024

Case Filing Date

February 14, 2024

County

Parties

For full print and download access, please subscribe at https://www.trellis.law/.

Party Notice: Liyanagamage Ranganath Prabashwara Dias v. University Of Rochester

Preview

Related Topics

Case Info

Parties