Katie Kickertz, Appellant, v New York University et al., Respondents.
First Department, New York
September 10, 2013
[971 NYS2d 271]
Leeds Morelli & Brown, P.C., Carle Place (Gregory N. Filosa and Jeffrey K. Brown of counsel), for appellant.
Bonnie S. Brier, New York University Office of General Counsel, New York City (Nancy Kilson of counsel), for respondents.
OPINION OF THE COURT
Andrias, J.
In this appeal, we consider to what extent, if any, plaintiff‘s claims against New York University (NYU) and three of its fac-
NYU dismissed plaintiff from its Dental College, without the possibility of reinstatement, based on the finding of a Peer Review Board on Ethics and Professionalism, after a disciplinary hearing, that she forged a patient treatment record and presented multiple patient encounter forms that she knew to be false in order to obtain the Practice Model Values (PMV) credits she needed to graduate.1 In response, plaintiff filed both an
Supreme Court denied the petition and dismissed the
On appeal, this Court reversed and granted the
“Judicial review of an academic institution‘s disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines and whether the determinations are based on a rational interpretation of the relevant evidence” (Kickertz I, 99 AD3d at 507 [internal quotation marks omitted]). Thus, to the extent plaintiff‘s causes of action are, in essence, a challenge to the determination to expel her, she was only entitled to
Plaintiff argues that the complaint should not have been dismissed because she alleges that before the disciplinary proceeding was initiated, defendants engaged in false and misleading advertising of the DDS program, breached contractual promises to her, defamed her, discriminated against her, and engaged in other tortious conduct. Each of these claims must be analyzed to determine whether it is limited to
In her first cause of action, plaintiff alleges that in the spring of 2005, in violation of
Although plaintiff‘s
In her second cause of action, plaintiff alleges that NYU breached its contractual agreement to provide her with a DDS degree in consideration of her payment of tuition by imposing new graduation requirements without adequate notice, failing to take the steps required to assist her in obtaining the degree, and dismissing her from the DDS program in violation of the Code of Ethics. She seeks specific performance in the form of an award of her DDS degree and the damages she suffered as a result of the alleged breach.
As a preliminary matter, contrary to plaintiff‘s contention, NYU‘s decision to deny her a degree was not based on purely financial considerations, and she does not fall with the ambit of Eidlisz v New York Univ. (15 NY3d 730, 732 [2010] [if the decision to deny a student a degree is based on purely financial considerations, the student may bring a breach of contract action instead of an article 78 proceeding]). Thus, to the extent plaintiff‘s breach of contract claim challenges NYU‘s decision to expel her based on a violation of its disciplinary rules and seeks specific performance in the form of an award of a DDS degree, it is “not cognizable in a breach of contract action” (see Keles v Trustees of Columbia Univ. in the City of N.Y., 74 AD3d 435, 436 [1st Dept 2010], lv denied 16 NY3d 890 [2011], cert denied 565 US —, 132 S Ct 255 [2011]).
To the extent plaintiff‘s breach of contract claim is based on the imposition of new graduation requirements, it is not sustainable (see Owens v Parrinello, 365 F Supp 2d 353, 358 [WD NY 2005] [a change in graduation requirements does not amount to a breach of the implied contract]). Nor do we discern any actionable contract claim based upon defendants’ alleged failure to give plaintiff Student Progress Reports every three months as well as a “Patient roster,” and “monthly target levels” to help her “stay on track.” These grievances, while couched in terms of a violation of a contractual right, challenge the adequacy of NYU‘s teaching methods and the failure to award plaintiff a degree, and do not state a cognizable contract action (Maas, 94 NY2d at 93; Keles, 74 AD3d at 436).
The third cause of action, breach of the implied duty of good faith and fair dealing, is asserted only against NYU. It alleges that NYU engaged in bad faith conduct by implementing and enforcing its contract with plaintiff, including the Code of Eth-
The fourth cause of action, asserted against all defendants, alleges tortious interference with plaintiff‘s “contract with Boston University to deliver dental services to patients,” and her “prospective business relationship with Boston University and several dental patients in the Boston metropolitan area.”
To establish a claim of tortious interference with contract, “the plaintiff must show the existence of its valid contract with a third party, defendant‘s knowledge of that contract, defendant‘s intentional and improper procuring of a breach, and damages” (White Plains Coat & Apron Co., Inc. v Cintas Corp., 8 NY3d 422, 426 [2007]). To state a cause of action for tortious interference with prospective contractual relations, the plaintiff must allege that the defendant directly interfered with a third party and either employed wrongful means or acted “for the sole purpose of inflicting intentional harm on [the] plaintiff” (Carvel Corp. v Noonan, 3 NY3d 182, 190 [2004] [internal quotation marks omitted]). Supreme Court correctly dismissed these claims because they do little more than challenge NYU‘s expulsion decision and fail to allege any independent tort. “Not only is [plaintiff] confronted with the public policy restraints against judicial interference with the judgment of professional educators, but conclusory allegations . . . that a defendant maliciously and deceitfully interfered with the consummation of a contract are clearly insufficient” (Gertler v Goodgold, 107 AD2d 481, 490 [1st Dept 1985], affd 66 NY2d 946 [1985]).
The fifth cause of action, asserted against all defendants, alleges defamation, based on statements made by faculty members to the investigating panel. Although not a challenge to plaintiff‘s expulsion, the statements allegedly made by defendants Hershkowitz and Cornejo were not defamatory, since they did not subject plaintiff “to the scorn and contempt of the community” (Herlihy v Metropolitan Museum of Art, 214 AD2d 250, 260 [1st Dept 1995]), or have a tendency to disparage her in her profession, trade or business (see id. at 261). Therefore, the fifth cause of action was correctly dismissed as against those two defendants.
Several of the statements allegedly made by defendant Meeker, however, were defamatory, e.g., that plaintiff was
Accordingly, plaintiff is granted leave to replead the fifth cause of action for defamation, as limited herein.
The sixth cause of action alleges negligence, as against all defendants. It alleges that “[t]he faculty and administration of NYU‘s dental program . . . owed a duty to Plaintiff not to hire and retain negligent faculty such as Dr. Meeker and Mr. Cornejo.” To the extent plaintiff alleges that NYU‘s negligent administration of its DDS program caused her nervous breakdown, that is a separate issue from expulsion. However, there is no cause of action in New York for educational malpractice, which is the gist of this claim (see e.g. Hoffman v Board of Educ. of City of N.Y., 49 NY2d 121, 125 [1979]; Introna v Huntington Learning Ctrs., Inc., 78 AD3d 896, 899 [2d Dept 2010]).
The seventh and eighth causes of action, which allege negligent misrepresentation/infliction of emotional distress and fraud respectively, as against NYU, do not challenge plaintiff‘s expulsion. However, they are based on a failure to disclose, and must be dismissed for the same reasons as the false advertising claims were dismissed. Further, as to negligent misrepresentation, there was no special relationship between the parties that created a duty to impart correct information, or a misrepresentation extraneous to the alleged contract itself (see Kimmell v Schaefer, 89 NY2d 257 [1996]). As to negligent infliction of emotional distress, beyond the title of the seventh cause of action, no reference is made to the claim.
The ninth cause of action alleges unjust enrichment, as against NYU. To the extent it is based on the allegation that plaintiff “conferred a benefit upon NYU by paying tuition and fees to NYU in purported exchange for a DDS degree under the terms and conditions advertised to her in 2005,” it challenges NYU‘s determination to expel her, and belonged in the article 78 proceeding. Moreover, this aspect of the claim was properly
The tenth cause of action, asserted against Meeker, alleges prima facie tort. It is based on the allegation that Meeker, who became plaintiff‘s group practice director in 2007, “maliciously” undertook to harm plaintiff and cause her emotional distress.
To state a cause of action for prima facie tort, the plaintiff must allege “(1) the intentional infliction of harm, (2) which results in special damages, (3) without any excuse or justification, (4) by an act or series of acts which would otherwise be lawful” (Freihofer v Hearst Corp., 65 NY2d 135, 142-143 [1985]). There can be no recovery under this theory “unless malevolence is the sole motive for defendant‘s otherwise lawful act or, in [other words], unless defendant acts from disinterested malevolence” (Burns Jackson Miller Summit & Spitzer v Lindner, 59 NY2d 314, 333 [1983] [internal quotation marks omitted]). “[P]rima facie tort was designed to provide a remedy for intentional and malicious actions that cause harm and for which no traditional tort provides a remedy, and not to provide a catch-all alternative for every cause of action which cannot stand on its legs” (Bassim v Hassett, 184 AD2d 908, 910 [3d Dept 1992] [internal quotation marks omitted]).
To the extent plaintiff complains of those of Meeker‘s actions that contributed to her expulsion, the claim belongs in the article 78 proceeding. To the extent she is claiming that Meeker‘s actions led to her nervous breakdown, that is separate from expulsion. However, the complaint‘s allegations are insufficient to state a cause of action for prima facie tort on this basis. Nor does plaintiff state a claim for intentional infliction of emotional distress. The conduct alleged by plaintiff was not “so outrageous in character, and so extreme in degree, as to go
The eleventh through fourteenth causes of action, asserted against all defendants, are for sex and disability discrimination in violation of New York State and City law. Where the allegedly discriminatory acts are directly related to the academic or disciplinary determinations made by defendants, or to the procedures followed in reaching those determinations, they must be brought in an
Applying these principles, to the extent plaintiff‘s sex discrimination claims are based on the allegations that she “was dismissed from the DDS program under conditions under which male dental students have been retained and graduated in the recent past,” and that NYU failed to accommodate her anxiety, depression, and anorexia during the disciplinary process, these claims should have been brought in the
Supreme Court dismissed plaintiff‘s discrimination claims because plaintiff did not show that she was “otherwise qualified” to graduate since she admittedly falsified patient treatment records and thereby violated the ethical code (see Brown v Einstein Coll. of Medicine of Yeshiva Univ., 172 AD2d 197 [1st Dept 1991]). However, given that the disciplinary determination has been overturned by this Court, it would be premature to dismiss the discrimination claims on these grounds. Although hearsay statements in the disciplinary report indicate that
Accordingly, plaintiff is granted leave to replead the eleventh through fourteenth causes of action, as limited herein.
The fifteenth cause of action alleges negligent infliction of emotional distress, as against all defendants. This too is in essence a challenge to NYU‘s decision to expel plaintiff, and is therefore subject to
The sixteenth cause of action alleges that defendants agreed and conspired to defame plaintiff, and to engage in negligent misrepresentations and tortious interference, and that they did these things “with the specific intent of harming Plaintiff, and maliciously interfering with her existing contracts and prospective business relationships.” This claim was correctly dismissed because New York does not recognize an independent tort cause of action for civil conspiracy (see Montan v Saint Vincent‘s Catholic Med. Ctr., 81 AD3d 431 [1st Dept 2011], lv dismissed 17 NY3d 872 [2011]).
Accordingly, the order of the Supreme Court, New York County (Alice Schlesinger, J.), entered February 14, 2011, which, insofar as appealed from, granted defendants’ motion to dismiss the amended complaint, should be modified, on the law and on the facts and in the exercise of discretion, to allow plaintiff to replead, as limited herein, the fifth cause of action (defamation), the ninth cause of action (unjust enrichment), and the eleventh through fourteenth causes of action (sex and disability discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law), and otherwise affirmed, without costs.
GONZALEZ, P.J., SAXE, DEGRASSE and GISCHE, JJ., concur.
Order, Supreme Court, New York County, entered February 14, 2011, modified, on the law and on the facts and in the exercise of discretion, to allow plaintiff to replead, as limited herein, the fifth cause of action (defamation), the ninth cause of action (unjust enrichment), and the eleventh through fourteenth causes of action (sex and disability discrimination in violation of the New York State Human Rights Law and the New York City Human Rights Law), and otherwise affirmed, without costs.