Summary
destroying a student's exam motivated by personal animus toward the student not sufficient to state intentional infliction of emotional distress claim
Summary of this case from Bailey v. N.Y. Law Sch.Opinion
May 6, 1993
Appeal from the Supreme Court, New York County, Peter Tom, J., Francis Pecora, J.
Plaintiff fails to state a cause of action for intentional infliction of emotional distress, since the destruction of his exam, even if motivated by animus toward him, was not so outrageous as to go beyond all possible bounds of decency (Murphy v American Home Prods. Corp., 58 N.Y.2d 293, 303), and also fails to state a cause of action for breach of contract, since his allegations that defendants violated certain provisions of the Student Handbook are flatly contradicted by the Handbook itself (see, Roberts v Pollack, 92 A.D.2d 440, 444).
We agree with the IAS Court that plaintiff's grievance is judicially redressable, if at all (see, Matter of Susan M. v New York Law School, 76 N.Y.2d 241), only in a CPLR article 78 proceeding, but that conversion to such a proceeding is not warranted since plaintiff failed to exhaust his administrative remedies and is now barred from seeking judicial review by the four-month Statute of Limitations (see, Gertler v Goodgold, 107 A.D.2d 481, 487, 489, affd for reasons stated in opn of Sullivan, J., 66 N.Y.2d 946).
Concur — Sullivan, J.P., Carro, Wallach, Kupferman and Nardelli, JJ.