Kickertz v. N.Y. Univ.

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Docket Number

No. 29

Attorney(S)

Hogan Lovells US LLP, New York City ( Ira M. Feinberg and Jordan L. Estes of counsel), for appellant. Leeds Brown Law, P.C., Carle Place ( Bryan Arbeit and Jeffrey K. Brown) , for respondent. Chief Judge LIPPMAN and Judges READ, PIGOTT, RIVERA, STEIN and FAHEY concur; Judge ABDUS-SALAAM taking no part.

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Smart Summary

Factual and Procedural Background

Katie Kickertz was expelled from New York University's College of Dentistry due to a determination of academic misconduct, with no possibility of readmission. Kickertz filed a CPLR article 78 proceeding seeking reinstatement as a student, awarding of her Doctor of Dental Surgery degree, and attorneys' fees. The Supreme Court granted Kickertz's petition, which NYU appealed as of right. The Appellate Division reversed Supreme Court's earlier dismissal of Kickertz's petition and reinstated the petition, prompting this appeal to the Court of Appeals.

Legal Issues Presented

Whether the Appellate Division erred by not remanding the case to Supreme Court to permit New York University to file an answer pursuant to CPLR 7804(f) after its motion to dismiss the article 78 petition was denied.
Whether triable issues of fact exist regarding New York University's substantial compliance with its disciplinary procedures.

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100 (1984)	Requirement under CPLR 7804(f) that a respondent be permitted to answer after a motion to dismiss is denied, unless facts are fully presented and no factual dispute exists.	The Court applied this precedent to hold that NYU should be permitted to file an answer because triable issues of fact exist and the facts were not fully presented to preclude prejudice from failing to require an answer.
Matter of Ebert v. Yeshiva Univ., 28 A.D.3d 315 (1st Dept. 2006)	Private educational institutions are not required to provide the full panoply of due process rights in disciplinary actions.	The Court referenced this to clarify the limited due process rights applicable to students at private institutions in disciplinary proceedings.
Tedeschi v. Wagner Coll., 49 N.Y.2d 652 (1980)	A private educational institution must substantially observe its published disciplinary rules.	The Court relied on this principle to emphasize that triable issues exist regarding whether NYU substantially complied with its disciplinary procedures.

Court's Reasoning and Analysis

The Court analyzed CPLR 7804(f), which mandates that after denial of a motion to dismiss an article 78 petition, the respondent must be allowed to answer unless the facts are fully presented such that no factual dispute exists and no prejudice would result. Citing Nassau BOCES, the Court found that in this case, triable issues of fact remain, so NYU must be permitted to answer. The Court also noted that students at private institutions are entitled only to procedural protections ensuring that published rules are substantially observed, not full due process rights. Because factual disputes exist about NYU's compliance with disciplinary procedures, the case must proceed further. The Court explicitly declined to address the merits of the penalty or other substantive issues.

Holding and Implications

The Court modified the judgment and the Appellate Division order by vacating the portion granting the petition and remitting the case to Supreme Court for further proceedings permitting NYU to file an answer, and affirmed the order as modified.

This decision directly affects the parties by requiring further proceedings at the Supreme Court level to allow NYU to respond to the petition. The Court did not establish new precedent beyond clarifying procedural requirements under CPLR 7804(f) in the context of article 78 petitions. No opinion was expressed regarding the underlying merits of the disciplinary action or penalties imposed.

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In the Matter of Katie KICKERTZ, Respondent, v. NEW YORK UNIVERSITY, Appellant.

Hogan Lovells US LLP, New York City (Ira M. Feinberg and Jordan L. Estes of counsel), for appellant. Leeds Brown Law, P.C., Carle Place (Bryan Arbeit and Jeffrey K. Brown), for respondent.

OPINION OF THE COURT

MEMORANDUM.

The judgment appealed from and the order of the Appellate Division brought up for review should be modified, without costs, by vacating that portion of the order granting the petition and remitting to Supreme Court for further proceedings in accordance with this memorandum and, as so modified, affirmed.

Based on a determination of academic misconduct, New York University (NYU or the University) expelled Katie Kickertz from its College of Dentistry without possibility of readmission. In this CPLR article 78 proceeding, petitioner Kickertz sought a judgment directing respondent NYU to reinstate her as a student, grant her the degree of Doctor of Dental Surgery and award attorneys' fees. The University now appeals as of right, pursuant to CPLR 5601(d), from Supreme Court's judgment granting Kickertz's petition. In so doing, NYU brings up for review the Appellate Division's prior nonfinal order which, with two Justices dissenting in part, reversed and vacated Supreme Court's earlier judgment dismissing Kickertz's petition pursuant to CPLR 3211 ( 30 Misc.3d 1220[A], 2011 N.Y. Slip Op. 50131[U], 2011 WL 420690 [Sup.Ct., N.Y. County 2011] ); and reinstated and granted the petition (99 A.D.3d 502, 952 N.Y.S.2d 147 [1st Dept.2012] ).

The principal issue raised by this appeal is whether the Appellate Division erred by failing to remand to Supreme Court to permit NYU to file an answer pursuant to CPLR 7804(f). That provision specifies that where a respondent moves to dismiss a CPLR article 78 petition and the motion is denied, “the court shall permit the respondent to answer, upon such terms as may be just” (emphasis added). We have indicated, however, that a court need not do so if the “ facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” ( Matter of Nassau BOCES Cent. Council of Teachers v. Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100, 102, 480 N.Y.S.2d 190, 469 N.E.2d 511 [1984] [emphasis added] ). Since “the motion papers” in BOCES “clearly did not establish that there were no triable issues of fact,” we held that “the procedure dictated by CPLR 7804 (subd [f] ) should have been followed” (id. at 104, 480 N.Y.S.2d 190, 469 N.E.2d 511). For the same reason, NYU should be permitted to answer in this case.

A student subject to disciplinary action at a private educational institution is not entitled to the “full panoply of due process rights” ( Matter of Ebert v. Yeshiva Univ., 28 A.D.3d 315, 315, 813 N.Y.S.2d 408 [1st Dept.2006] ). Such an institution need only ensure that its published rules are “substantially observed” (Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 660, 427 N.Y.S.2d 760, 404 N.E.2d 1302 [1980] ). And here, triable issues of fact exist with regard to whether NYU substantially complied with its established disciplinary procedures. Because of our disposition of this appeal, we do not reach and express no opinion about the propriety of the penalty imposed or any other issue raised by the parties and decided by the courts below. Chief Judge LIPPMAN and Judges READ, PIGOTT, RIVERA, STEIN and FAHEY concur; Judge ABDUS–SALAAM taking no part.

Judgment appealed from and order of the Appellate Division brought up for review modified, without costs, by vacating that portion of the Appellate Division order granting the petition and remitting to Supreme Court, New York County, for further proceedings in accordance with the memorandum herein and, as so modified, affirmed.