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Appellate Division Should Have Allowed Respondent to Answer Petition After Dismissal of the Petition Was Reversed by the Appellate Division

The Court of Appeals determined the Appellate Division erred when it did not remand an Article 78 proceeding to Supreme Court to allow the respondent university (NYU) to submit an answer to the petition.  The petition was brought by a dental student seeking redress after she was expelled.  Supreme Court dismissed the petition.  The Appellate Division reversed:

The principal issue raised by this appeal is whether the Appellate Division erred by failing to remand to Supreme Court to permit NYU to file an answer pursuant to CPLR 7804 (f). That provision specifies that where a respondent moves to dismiss a CPLR article 78 petition and the motion is denied, “the court shall permit the respondent to answer, upon such terms as may be just” … . We have indicated, however, that a court need not do so if the “facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer” … . Since “the motion papers” in BOCES “clearly did not establish that there were no triable issues of fact,” we held that “the procedure dictated by CPLR 7804 (subd [f]) should have been followed” … . For the same reason, NYU should be permitted to answer in this case.

A student subject to disciplinary action at a private educational institution is not entitled to the “full panoply of due process rights” … . Such an institution need only ensure that its published rules are “substantially observed” … . And here, triable issues of fact exist with regard to whether NYU substantially complied with its established disciplinary procedures. Matter of Kickertz v New York Univ., 2015 NY Slip Op 02800, CtApp 4-2-15

 

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