110 A.D.3d 268
N.Y. App. Div.2013Background
- Plaintiff was a dental student at NYU expelled without reinstatement after a Peer Review Board found she forged patient records and submitted false patient encounter forms to earn PMV credits needed to graduate.
- Plaintiff filed an Article 78 petition to annul the expulsion and a plenary suit against NYU and three faculty members alleging violations of NY and NYC human rights laws, General Business Law §§ 349–350, defamation, unjust enrichment, torts, and seeking her DDS degree and damages.
- Supreme Court denied the Article 78 petition and dismissed the plenary action; this Court (Kickertz I) reversed the Article 78 dismissal finding NYU did not substantially comply with its disciplinary procedures and that expulsion shocked the sense of fairness.
- On remand, this Court held that many plenary claims were either duplicative of the Article 78 challenge or otherwise unsustainable, but identified certain claims that may proceed in a plenary action and granted leave to replead limited causes of action.
- The court allowed repleading of: (1) defamation (limited to certain Meeker statements), (2) unjust enrichment (limited to specific PMV payments and services outside the contract), and (3) sex and disability discrimination claims (limited to nonacademic/disparate-treatment allegations not directly challenging the expulsion decision).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether claims challenging the expulsion may proceed in plenary suit | Kickertz contends many claims (contract, good faith, torts) seek damages and are not limited to Article 78 | NYU argues challenges to the disciplinary decision must be brought by Article 78 and thus the plenary action is barred insofar as it duplicates the petition | If the gravamen of the claim challenges the expulsion, it must be in Article 78; nonacademic or independent torts may proceed in plenary action if not duplicative |
| GBL §§ 349–350 false advertising claim | Plaintiff says NYU misled applicants by failing to disclose new PMV requirement | NYU says no duty to disclose every possible future curriculum change; implied right to change requirements | Dismissed: not consumer-oriented misrepresentation to require disclosure of future academic requirement details |
| Breach of contract / specific performance for DDS degree | Plaintiff seeks degree and damages, alleging new requirements and failure to assist | NYU contends denial of degree here was disciplinary (nonfinancial) and thus contractual remedy is barred by Article 78 | Dismissed to extent it challenges expulsion or changes in academic requirements; no breach for pedagogical shortfalls |
| Defamation and related torts (Meeker, Hershkowitz, Cornejo) | Plaintiff alleges faculty statements to the panel defamed her and caused harm | Defendants assert privilege and that statements were not defamatory or were privileged | Repleading allowed limited to certain Meeker statements plausibly defamatory; claims versus other faculty dismissed |
Key Cases Cited
- Maas v. Cornell Univ., 94 N.Y.2d 87 (N.Y. 1999) (disciplinary decisions at universities reviewed under Article 78 for substantial compliance with rules)
- Stutman v. Chemical Bank, 95 N.Y.2d 24 (N.Y. 2000) (elements for GBL § 349 consumer-oriented materially misleading act causing injury)
- Liberman v. Gelstein, 80 N.Y.2d 429 (N.Y. 1992) (malice standard for defamation by private figure)
- White Plains Coat & Apron Co. v. Cintas Corp., 8 N.Y.3d 422 (N.Y. 2007) (elements of tortious interference with contract)
- Carvel Corp. v. Noonan, 3 N.Y.3d 182 (N.Y. 2004) (standard for interference with prospective contractual relations and wrongful means)
- Eidlisz v. New York Univ., 15 N.Y.3d 730 (N.Y. 2010) (distinguishing degree-denial claims based on purely financial reasons for contract remedies)
- Keles v. Trustees of Columbia Univ., 74 A.D.3d 435 (1st Dep’t 2010) (contract claims challenging disciplinary decisions are not cognizable outside Article 78)
- Hoffman v. Board of Educ. of City of N.Y., 49 N.Y.2d 121 (N.Y. 1979) (no cause of action for educational malpractice)
- Freihofer v. Hearst Corp., 65 N.Y.2d 135 (N.Y. 1985) (prima facie tort elements require disinterested malevolence)
- Marmelstein v. Kehillat New Hempstead, 11 N.Y.3d 15 (N.Y. 2008) (standard for intentional infliction of emotional distress)
- Goldman v. Metropolitan Life Ins. Co., 5 N.Y.3d 561 (N.Y. 2005) (unjust enrichment precluded where contract governs the dispute)
- Paramount Film Distrib. Corp. v. State of New York, 30 N.Y.2d 415 (N.Y. 1972) (unjust enrichment requires that retention would be against equity and good conscience)