Opinion
116296/06.
April 17, 2009.
DECISION
BACKGROUND
Defendants move, pursuant to CPLR 3212, to dismiss the action against them. Plaintiff, a former medical student, has asserted nine causes of action against defendants: (1) unlawful discrimination against plaintiff, pursuant to New York State Executive Law § 290; (2) unlawful discrimination against plaintiff, pursuant to the Local Laws of the City of New York, Administrative Code §§ 8-107 (a) and 8-502; (3) retaliatory discrimination against plaintiff, in violation of New York State Executive Law § 290; (4) violation of the Local Laws of the City of New York, Administrative Code §§ 8-107 (a) and 8-502, for which plaintiff seeks damages of $100,000,000.00; (5) as against the individual defendants only, violations of the above-referenced laws for which seeks damages as a jury may award; (6) wilful, wonton, malice, gross carelessness, recklessness and depraved indifference in violation of plaintiff's civil rights; (7) tortious interference with contract; (8) breach of contract; and (9) breach of implied covenant of good faith and fair dealing.
The motion papers lacked copies of the pleadings, as required by CPLR 3212 (b); however, plaintiff did not question this, and defendants provided the pleadings in their reply, which the court accepts nunc pro tunc.
The facts of this case have been extensively detailed in an earlier decision of the court, in which the court denied granting plaintiff's requested relief in an Article 78 proceeding against defendants. Plaintiff's alleged injuries result from defendants' decision to dismiss plaintiff as a full-time research candidate in the MD/PhD program in the university's Department of Microbiology and Immunology. The university's determination, affirmed by the court, found that plaintiff engaged in professional misconduct and demonstrated poor academic performance. In this plenary action, filed more than eight months after university's final determination of the matter, plaintiff alleges the same facts, but this time asserts that defendants' actions were based on unlawful discrimination. Further, in the instant action, plaintiff seeks damages, whereas in the earlier Article 78 proceeding he only sought vacatur of the university's decision and reinstatement as a research candidate.
Index No. 110578/05, against the university defendants only, December 16, 2005 (Abdus-Salaam, J.), reargument denied, June 12, 2006
DISCUSSION
"The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case [internal quotation marks and citation omitted]." Santiago v Filstein, 35 AD3d 184, 185-186 (1st Dept 2006) . The burden then shifts to the motion's opponent to "present facts in admissible form sufficient to raise a genuine, triable issue of fact." Mazurek v Metropolitan Museum of Art, 27 AD3d 227, 228 (1st Dept 2006); see Zuckerman v City of New York, 49 NY2d 557, 562 (1980). If there is any doubt as to the existence of a triable fact, the motion for summary judgment must be denied. See Rotuba Extruders v Ceppos, 46 NY2d 223, 231 (1978) .
Defendants' motion is granted.
Defendants' primary argument is that the instant action should have been brought as an Article 78 proceeding, and as such is time-barred, having been filed more than four months after the university's final determination. See Kowalczyk v Ricci, 269 AD2d 865 (4th Dept 2000) . In opposition, plaintiff does not address this argument, but instead asserts that the earlier decision is not res judicata because he did not raise the issue of unlawful discrimination in the Article 78 proceeding, and because he is now seeking monetary relief, which also was not sought previously. In both these arguments, plaintiff is incorrect.
"Courts retain a 'restricted role' in dealing with and reviewing controversies involving colleges and universities. In these so-called 'university' cases, CPLR article 78 proceedings are the appropriate vehicle because they insure that the over-all integrity of the educational institution is maintained and, therefore, protect more that just the individual's right. . . . Thus, a CPLR article 78 proceeding is the route for judicial review of such matters, not a plenary action. Notably, when litigants fail to avail themselves of the CPLR article 78 avenue, courts may justifiably dismiss plenary claims . . . [citations omitted]."
Maas v Cornell University, 94 NY2d 87, 92 (1999); Quintas v Pace University, 23 AD3d 246 (1st Dept 2005).
Merely couching causes of action in terms of contract and tort to avoid the four-month statute of limitations are unavailing, since the claims arise out of the university's administrative decisions. Demas v Levitsky, 291 AD2d 653 (3d Dept 2002). In his opposition papers, plaintiff is re-arguing the university's determination, but this time alleging that the actions were founded on unlawful discrimination. However, the gravamen of his claims are that defendants improperly dismissed him as a research candidate, which must be asserted in an Article 78 proceeding, governed by a four-month statute of limitations. Broderick v Board of Education, Roosevelt Union Free School District, 253 AD2d 836 (2d Dept 1998).
Further, plaintiff's argument that the instant action is not barred by the doctrine of res judicata is misplaced. Since plaintiff's causes of action state "merely an alternative theory which the plaintiff had a full and fair opportunity to advance in the earlier proceedings, it . . . is barred by res judicata." Sterngass v County of Rockland, 208 AD2d 916, 919 (2d Dept 1994). The actions complained of arose out of the same grievance and set of facts as the earlier determination, and plaintiff cannot now attempt to revive his grievance merely by clothing the circumstances in a new theory.
Additionally, plaintiff's assertion that in this action he is seeking damages, which were not sought in the earlier proceeding, is unavailing to allow him to maintain the instant lawsuit. As the court stated in Keane v New York Law School ( 186 AD2d 453, 453 [1st Dept 1992]), in affirming the dismissal of a claim asserting monetary relief,
"Using the 'transactional analysis' approach, the court properly determined that all claims arising from plaintiff's dismissal as a student at New York Law School were barred by the doctrine of res judicata. The previous decision in the Article 78 proceeding upheld the policy against judicial intervention in academic disputes regarding student evaluations absent evidence of 'bad faith, arbitrariness, capriciousness, irrationality or a constitutional or statutory violation.
In the prior proceeding, plaintiff could have sought damages arising out from the alleged violation of contractual rights. CPLR 7806 'authorizes the court in an article 78 proceeding to grant . . . damages that are incidental to the primary relief sought' if, as here, damages are recoverable on the same set of facts [citations omitted]."
See also, Pauk v Board of Trustees of the City University of New York, 68 NY2d 702 (1986); Dobkin v New York University, 278 AD2d 24 (1st Dept 2000); Matter of YO Holdings (NY), Inc. v Board of Managers of Executive Plaza Condominium, 278 AD2d 173 (1st Dept 2000).
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that defendants' motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendant as taxed by the Clerk of the Court upon the submission of an appropriate bill of costs; and it is further
ORDERED that the Clerk is directed to enter judgment accordingly; and it is further
ORDERED that counsel for defendant shall serve a copy of this order with notice of entry within twenty days of entry.