DEFENDANT’S AFFIRMATIVE DEFENSES SHOULD HAVE BEEN CONSIDERED IN ITS MOTION FOR SUMMARY JUDGMENT; PLAINTIFF’S ACTION AGAINST DEFENDANT BASED UPON HER DISMISSAL FROM A NURSING PROGRAM SHOULD HAVE BEEN BROUGHT IN AN ARTICLE 78 PROCEEDING AND WAS THEREFORE TIME-BARRED (THIRD DEPT).

The Third Department, reversing Supreme Court, determined the court should have considered defendant’s affirmative defenses, including the statute of limitations defense, in determining defendant’s summary judgment motion. Plaintiff brought fraud, breach of contract and prima facie tort causes of action against defendant. Plaintiff was enrolled in defendant’s licensed practical nurse (LPN) program and was dismissed by defendant based upon plaintiff’s performance in a clinical setting. The Third Department held that the action should have been brought in an Article 78 proceeding and was time-barred:

Supreme Court should have considered defendant’s affirmative defenses on the summary judgment motion. Although the notice of motion did not cite CPLR 3211 (a), it did seek dismissal of the complaint in its entirety, as well as “such other and further relief” as the court deemed just and proper, and defendant’s memorandum of law, submitted with the motion, addressed dismissal based on the statute of limitations and failure to exhaust administrative remedies, thereby providing plaintiff with adequate notice of these bases for the motion. … A defendant may raise an affirmative defense listed in CPLR 3211 (a) in a pre-answer motion to dismiss or, for most of those grounds, “may instead choose to raise that defense in its answer, and either move on that ground later in a motion for summary judgment, or wait until trial to have it determined” … . * * *

Plaintiff’s separate causes of action sounding in breach of contract, fraud and prima facie tort are all, at their core, challenges to defendant’s actions in dismissing her from the LPN program in a manner that allegedly was not in good faith and was without a sound factual basis, rendering her dismissal arbitrary and capricious. Thus, she should have brought her challenge in a CPLR article 78 proceeding. Although courts generally possess the authority to convert a plenary action to a CPLR article 78 proceeding if jurisdiction of the parties has been obtained (see CPLR 103 [c]), conversion is not appropriate where the claims are barred by the four-month statute of limitations governing CPLR article 78 proceedings … . Meisner v Hamilton, Fulton, Montgomery Bd. of Coop. Educ. Servs., 2019 NY Slip Op 06558, Third Dept 9-12-19