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Student Who Had Been Expelled Could Bring Plenary Complaint Against School, in Addition to an Article 78 Proceeding

In a full-fledged opinion by Justice Andrias, the First Department determined that a dental student who had been expelled in a disciplinary action could bring both an article 78 proceeding and a plenary action for damages against the school. The court went through each cause of action in the complaint and allowed a few, including sex discrimination claims, to go forward. (In a previous appeal the article 78 petition re: the expulsion had been granted, finding that expulsion was too severe a penalty.):

“Judicial review of an academic institution’s disciplinary determinations is limited to whether it substantially adhered to its own published rules and guidelines and whether the determinations are based on a rational interpretation of the relevant evidence” … . Thus, to the extent plaintiff’s causes of action are, in essence, a challenge to the determination to expel her, she was only entitled to article 78 review …, and the filing of the article 78 proceeding mandated the dismissal of the plenary action insofar as it raised such claims … . Conversely, to the extent the gravamen of plaintiff’s causes of action is not a challenge to the decision to expel her and is not duplicative of the petition’s allegations, she is not limited to article 78 review and may seek damages in a plenary action … . Kickertz v New York Univ, 2013 NY Slip Op 05781, 1st Dept 9-10-13

 

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