Thursday, August 28, 2008
N.Y. Trial Court Holds that Dental Students' Claims against NYU Not Properly Fashioned as Breach of Contract Action
We all know the type of personality that chooses a career in dentistry (which happens to claim both my father and brother in its ranks):
Well, today's New York Law Journal reports (subscription required) that a New York County Trial Court (Stallman, J.) recently granted NYU Dental School summary judgment in an action commenced by a disgruntled former student, Leonard Eidlisz. The facts seem to indicate that the student failed out of school in mid 1990's but may have re-enrolled in 2002 and, ultimately, sought to have the court order NYU Dental School to issue him a diploma. The court held, however, that the student's action was not timely because it should have been fashioned as an Article 78 proceeding (in NY, in short, that is a proceeding for review of academic and administrative decisions). The student unsucessfully argued that the action sounded in breach of contract and, therefore, the shorter statute of limitations under Article 78 did not apply. The trial court held in favor of NYU:
Eidlisz argues that this case, like Ansari v. New York University (1997 WL 257473; 1997 US Dist LEXIS 6863 [SD NY 1997]), is a contract action and that, therefore, it is timely. In Ansari, plaintiff sued NYU, arguing that NYU had failed to provide the facilities and staffing that it had promised in its promotional materials and that those failures constituted a breach of contract and negligent misrepresentation, and violated section 349 of the General Business Law. Although the Court in Ansari sustained the plaintiff's breach of contract and General Business Law claims, it also noted that "judicial review of academic and administrative decisions must be brought in an Article 78 proceding." Ansari v. New York University, 1997 WL 257473 at *2, 1997 US Dist LEXIS 6863 at *6-7, citing Gertler v. Goodgold, 107 AD2d 481, 486 (1st Dept), affd 66 NY2d 496 (1985); see also Maas v. Cornell Univ., 94 NY2d 87, 92 (1999)(Article 78 proceedings rather than plenary actions are the appropriate vehicle for judicial review of "university" cases).
The very nature of the relief sought here underscores the conclusion that this case relates to the sort of academic and administrative decisions that the court in Ansari indicated are properly the subject of an Article 78 proceeding, rather than an action on a breach of contract. An Article 78 proceeding, by its nature, is brought to obtain relief in the nature of a writ of certiorari, mandamus, or prohibition. CPLR 7801. Here, plaintiff seeks an order directing defendants to award him his degree. Such an order relates to "the exercise of subjective professional judgment" (Gertler v. Goodgold, 107 AD2d at 485), in contrast with, for example, an action for damages for breach of contract, or a return of academic fees. See e.g. Matter of Golomb v. Board of Educ. of City School District of City of New York, 92 AD2d 256 (2d Dept 1983)(a petition seeking recovery of back salary is akin to damages for breach of contract and cannot be made in an Article 78 petition).
I should mention that this is a nice win for NYU's fearless litigator, Nancy Kilson, for whom I worked while we were both at a big New York firm.
Eidlisz v. New York University, 600105/05 (Sup. Ct., NY County, Aug. 28, 2008).[Meredith R. Miller]