Opinion
15301 Index No. 151606/17 Case No. 2020–03712
02-17-2022
Tracey SANDLER, Plaintiff–Appellant, v. Joseph BENDEN et al., Defendants–Respondents.
David Zevin, Roslyn, for appellant. Naness, Chaiet & Naness LLC, Jericho (Clifford P. Chaiet of counsel), for Joseph Benden and Bayview Manor LLC, respondents. Clifton Budd & DeMaria, LLP, New York (Douglas P. Catalano of counsel), for Ilene L. Nathanson, Pamela Brodlieb and Long Island University, respondents.
David Zevin, Roslyn, for appellant.
Naness, Chaiet & Naness LLC, Jericho (Clifford P. Chaiet of counsel), for Joseph Benden and Bayview Manor LLC, respondents.
Clifton Budd & DeMaria, LLP, New York (Douglas P. Catalano of counsel), for Ilene L. Nathanson, Pamela Brodlieb and Long Island University, respondents.
Kapnick, J.P., Webber, Gesmer, Scarpulla, Shulman, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered June 25, 2020, which granted defendants’ CPLR 3211(a) motions to dismiss the complaint, unanimously modified, on the law, to the extent of reinstating plaintiff's cause of action for defamation, and otherwise affirmed, without costs.
Plaintiff's allegations challenge the "academic and administrative standards and decisions" of defendant Long Island University (LIU) and two of its employees ( Keles v. Trustees of Columbia Univ. in the City of N.Y., 74 A.D.3d 435, 435, 903 N.Y.S.2d 18 [1st Dept. 2010], lv denied 16 N.Y.3d 890, 924 N.Y.S.2d 319, 948 N.E.2d 925 [2011], cert denied 565 U.S. 884, 132 S.Ct. 255, 181 L.Ed.2d 148 [2011] ). Accordingly, although she variously frames her claims in statute, tort, contract, and quasi-contract, plaintiff was required to bring those challenges via CPLR article 78, rather than in a plenary action, subject to the four-month limitations period applicable to article 78 proceedings (see Gary v. New York Univ., 48 A.D.3d 235, 236, 850 N.Y.S.2d 433 [1st Dept. 2008] ). Since plaintiff undisputedly did not bring her claims within that time frame, they are time-barred.
Plaintiff's claims against defendant Bayview Manor LLC (Bayview) are rooted in Bayview's service as LIU's agent in the provision of an educational internship, and her claims against Bayview and its employee likewise relate to matters of pedagogy and educational decisions. Thus likewise, plaintiff was required to bring her claims against Bayview in an article 78 proceeding, since those claims amount to a challenge to educational decisions (see Matter of Vellios v. Serio, 1 Misc.3d 487, 489, 764 N.Y.S.2d 568 [Sup. Ct., N.Y. County 2003] ), except her claims as to defamation. In her tenth cause of action, plaintiff alleges that Bayview and its employee libeled her in her profession, which constituted slander per se. At least some of the alleged defamatory statements were concrete and verifiable, which, if false, would arguably both overcome the qualified privilege and tend to establish all of the elements of her defamation claim. Accordingly, plaintiff's defamation claim states a cause of action and is reinstated.
We have considered plaintiff's remaining arguments and find them unavailing.