UED ON 91612012

SUPREME COURT OF THE STATE OF NEW YORK

NEW YORK COUNTY
PRESENT: Hon. MICHAEL D. STALLMAN PART 21
Justice

~ ~ ~ ~

In the Matter of the Applicatlon of INDEX NO. I01 52011 I

D ARY 0USH HEND ESSI,
MOTION DATE 3/22/12
Petitioner,
-v- MOTION SEQ. NO. 001

NE W YORK COLLEGE OF OSTEOPATHIC MEDICINE OF

NEW YORK INSTITUTE OF TECHNOLOGY,

Respondent.

The following papem, numbered 1 to II were read on this Artlcle 78 petitlon

Notlce of Petltlon- Verlfled Petition-AfFidavlt of Servlce; Amended Verlfied I No(s). 1-3;4; 5

Petition; Affidavit-Exhibits

Verified Answer -Affidavit- Exhibits A-2-Afflrmation of Service I No@). 6-8

Reply to Respondent's Counterclalrns I No@). 9

Verified Sur Reply-Exhibits A-C-Affirrnatlon of Service IW s ) . 10-11

Upon the foregoing papers, this Article 78 petition is decided in accordance

with the annexed memorandum decision, order, and judgment.

As per the annexed decision, order, and judgment, the counterclaims are
severed and shall continue as a plenary action. Therefore, the matter is
referred to the Trial Support Office for reassignment to a General IAS Part.

UNFILED JUDGMENT
This judgment has not bean entered by thh County Clerk

Dated: 41; i /,,*

New York, New York

1. Check one: ................................................................ LA CASE DISPOSED NON-FINAL DISPOSITION

2. Check if appropriate: ............................ IsmGRANTED W DENIED 1
7GRANTED IN PART 11113 OTHER
3. Check If approprlate: ................................................ u SETTLE ORDER /..I
SUBMIT ORDER
SUPREME COURT OF THE STATE OF NEW YORK
NEW YORK COUNTY: PART 21

DARYOUSH HENDESSI,
Index No.: 101520/11
Pet it ioner ,

For Judgment pursuant to Art. 78

CPLR, and Common Law Relief

- against - DECISION, ORDER, and

JUDGMENT
NEW YORK COLLEGE OF OSTEOPATHIC
MEDICINE OF NEW YORK INSTITUT
OF TECHNOLOGY, E UNFILED JUDGMENT
Thls judgment has not been entered by the County Clerk
and notice of entry cannot be served based hereon. To
Responden -
obtain entry, counsel or authorized retpreserhtive must
-w= in person at the Jw clerk's osrk (Rmn
14181
. I
HON. MICHAEL D. STALLMAN, J. :

In this Article 78 proceeding, petitioner Daryoush Hendessi

(Hendessi) challenges his dismissal from respondent medical

school, resulting from his i n a b i l i t y t o p a s s a required licensing

exam prior to the expiration of a six-month administrative l e a v e .

Petitioner challenges his dismissal, as well as respondent's

application of a rule reducing, from 12 months to 6 months, the

amount of administrative leave permitted to t a k e the r e q u i r e d

exams, as arbitrary a n d capricious, i n breach of an implied

contract, a n d discriminatory.

BACKGROUND

R e s p o n d e n t New Y o r k College of Osteopathic Medicine (NYCOM)

is the osteopathic medical college of N e w Y o r k Institute of

Technology (NYIT), a private, non-profit college chartered by the
Board of Regents of the State of N e w York. Petzitioner Mendessi

alleges that he was born in I r a n , graduated from the medical

school O E Oran University in 1988, and that he practiced medicine

as a physician in France prior to moving to the United States.

Amended Verifi.ed Petition, ¶ 8. In 2005, petitioner enrolled in

NYCOM‘s E’migre’ Physician Program, a four-year program comprising

two years of classes a n d two years of clinical rotations. Id., ¶¶

3 , 10.

In order to graduate from NYCOM, students were required, in

addition to successfully completing academic courses and clinical

work, to pass certain comprehensive licensing exams, known as

COMLEX, administered by the National Board of Osteopathic Medical

Examiners (NBOME). Students were required to pass the COMLEX

Level 1 exam prior to beginning the f o u r t h year of study. In the

event that a student had not passed the Level I examination

before entering the fourth year, the student was put on an

administrative leave of absence to give the student additional

time to pass the exam. See Student Handbooks, Exs. U, X to

Verified Answer (Answer), 5 I1 (C). Students also were required

to pass two COMLEX Level I1 exams, COMLEX Level I1 CE

(Comprehensive written exam) and COMLEX Level I1 PE (physical

exam). As with the COMLEX Level I exam, if, prior to graduating,

a student had not passed the Level I1 exams, the student was put

on administrative leave to give the student more time to pass the

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 exam and meet the requirement for graduation. See id.

In June 2008, after five unsuccessful attempts to pass the

COMLEX Level I exam, petitioner was put on administrative leave

and given one year, until June 2009, to pass the exam. See

Letter dated June 26, 2008, Ex. D to Answer. Petitioner passed

the COMLEX Level I exam in February 2009, and returned to NYCOM

in July 2009. Petitioner subsequently completed his course work

and h i s clinical clerkships, receiving mostly good or excellent

evaluations f o r his clinical w o r k . See Evaluations, Ex. 3 to

Hendessi Aff. As of May 2010, however, despite making numerous

attempts between August 2009 a n d May 2010, petitioner had n o t

passed the COMLEX Level I1 exams, the remaining requirement to

graduate. See NBOME Student History, Ex. C to Answer.

In May 2010, petitioner was notified by NYCOM that, because

he had n o t yet passed the Level I1 exams, he was being placed on

administrative leave. See Letter dated May 21, 2010, Ex. F to

Answer. Pursuant to the terms of the 2009-2010 Student Handbook,

he was granted six months of administrative leave, which allowed

h i m to retain his eligibility to register for the COMLEX Level I1

exams. See Student Handbook 2009-2010, Ex. U to Answer, 5 13:

(C). On May 19, 2010, petitioner signed a COMLEX I1 leave of

absence form, acknowledging that he had until November 19, 2010,

to pass the exams a n d be reinstated to NYCOM. See Mandatory

Administrative T,eave of Absence, Ex. G to Answer. Petitioner now

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 dismissed from NYCOM's medical program. See Letter dated Nov.
19, 2010, Ex. H to Answer; Student Handbook 2009-2010, Ex. U to

Answer, 5 I1 (C); Mandatory Administrative Leave of Absence, Ex.

G to Answer.

The instant proceeding was commenced in February 2011.

Petitioner s e e k s reinstatement to NYCOM's medical program, a

declaration that respondent's actions were arbitrary and

capricious and discriminatory, and damages, including

reimbursement of tuition and "special damages f o r a lost career."

Amended Petition, at 11.

Petitioner does n o t dispute or challenge NYCOM's policy of

requiring a student to take an administrative leave of absence in

the event that the student has not passed COMLEX Level I1 exams

prior to graduation. Petitioner contends, h o w e v e r , that

respondent acted arbitrarily and capriciously when it dismissed

him after "retroactively" applying the 6-month leave requirement

included in the 2009-2010 handbook, instead of the rule in effect

at the time of his enrollment. See Petitioner's Memorandum of

Law in Support of Petition, at 6. Petitioner further contends

that NYCOM altered the terms of its implied contract with

petitioner, by reducing, "at the last moment," t h e time t h a t h e

had to pass the COMLEX I1 exams, "which directly impacted his

ability to graduate and p r a c t i c e medicine." Amended Petition, ¶¶

28-30. In addition, petitioner alleges that he was treated

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 differently than another student who was enrolled at the same

time as petitioner and was permitted to t a k e a 12-month l e a v e .

Id., ¶ 24; Hendessi Aff., ¶ 13.

PISCUSSION

In general, ” [ c l o u r t s retain a ‘restricted role’ in dealing

with and reviewing controversies involving colleges and

universities.” Maas v Cornell U n i v . 94 NY2d 87, 92 (1999).

“Strong policy considerations militate against the intervention

of courts in controversies relating to an educational

institution’s judgment of a student’s academic performance.”

Matter of Susan M. v bew Y o r k L a w S c h o o l , 76 NY2d 241, 245 (1390)

(citations omitted); see Matter of O l s s o n v B o a r d of H i g h e r Educ.

of C i t y of N . Y . , 49 N Y 2 d 408, 413 (1980); T e d e s c h i v Wagner

College, 49 N Y 2 d 652, 658 (1980). As the C o u r t of Appeals has

explained, “ [ i ] n order for society to be a b l e to have complete

c o n f i d e n c e in t h e credentials dispensed by academic institutions,

. . . it is essential that the decisions surrounding the issuance

of these credentials be left to the sound judgment of the

professional educators who monitor the progress of their students

on a regular basis.” Matter of OISSORr 49 N Y 2 d at 413; see M a a s ,

94 NY2d at 92; Matter of S u s a n M., 76 NY2d at 245-246; Matter of

McIntosh v Borough of Manhattan Community Coll., 7 8 A D 2 d 839, 839

Dept 1980), a f f d 55 NY2d 913 (1982); Keles v Trustees of

Columbia U n i v . in C i t y of N . Y . , 74 AP3d 435, 435 (1’‘:Dept 2010).

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 Simply put, "[clourts do not intervene t o require institutions

'to confer diplomas on those who have been deemed to be

unqualified.'" R o s e n t h a l v New York U n i v . , 2012 WL 1700843, *1,

2 0 1 2 US App L E X I S 9817, * 3 ( 2 d Cir 2 0 1 2 ) , quoting Matter of

O l s s o n , 49 NY2d at 413.

Thus, while "the determinations of educational institutions

as to the academic performance of their students are not

completely beyond the scope of judicial r e v i e w , that review is

limited to the question of whether the challenged determination

was arbitrary and capricious, irrational, made in bad faith or

contrary to the Constitution or statute.'' M a t t e r of Susan M., 76

NY2d at 2 4 6 ; see K e l e S , 74 AD3d at: 435; M a t t e r of De J o n g v K i n g s

C o u n t y Hosp. Ctr., 2 7 AD3d 398 (13tDept 2 0 0 6 ) . "Arbitrary

action is without sound basis in reason and is generally taken

without regard to the f a c t s . " Matter of P e l 1 v Board of Educ. of

Union Free School D i s t . N o . 1 of Towns of S c a r s d a l e and

Mamaroneck, W e s t c h e s t e r C o u n t " y , 34 NY2d 2 2 2 , 2 3 1 ( 1 9 7 4 ) ; see

A l l a w i v S t a t e Univ. of N.Y. a t S t o n y Brook, 2 0 0 2 WL 31748836,

*1, 2002 NY Misc LEXIS 1546, "5 (Sup Ct, Suffolk County 2 0 0 2 ) . A
petitioner h a s the burden of demonstrating that the determination

was irrational or made in bad faith or f o r an impermissible

reason. S e e M a t t e r of Che L i n T s a o v K e l l y , 2 8 A D 3 d 320, 3 2 1

( I s t Dept 2 0 0 6 ) ; M a t t e r of Baptiste v City U n i v . o f N . Y . , 2 0 1 0 WL

4 1 5 5 2 7 9 , 2 0 1 0 NY Misc LEXIS 5020, *10 (Sup Ct, NY County 2010) -

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 Further, although courts have recognized that "there is a n

implied contract between the student and the university that, if

he complies with the terms prescribed by the university, he will

obtain the degree which he sought" (Matter of C a r r v St. John's

Univ., 1 7 AD2d 6 3 2 , 6 3 3 [ 2 d Dept 19621, a f f d 12 NY2d 8 0 2 [1962];

see Downey v S c h n e i d e r , 23 AD3d 514, 516 [Zd Dept 2005]), "courts

reviewing such contracts must tread carefully . . . [and] in

reviewing universities' decisions regarding academic

credentialing, courts must defer to the university's e f f o r t to

substantially observe the rules, regulations, and procedures it

has announced in advance, and will disturb their decisions only

if their actions are arbitrary, irrational, or in bad faith."

R o s e n t h a l , 2012 WL 1700843, at *1-2, 2012 US App LEXIS 9817, at

"3-4; see G e r t l e r v Goodgold, 107 A D 2 d 481, 486 (13tDept 1985),

a f f d 66 NY2d 9 4 6 (1985). "'Plainly, [courts] may not override

[such decisions] unless [there] is such a substantial departure

from accepted academic norms as to demonstrate that the person or

committee responsible did not actually exercise professional

judgrnent . " F l o m e n b a u m v N e w York U n i v . , 71 A D 3 d 80, 86 (13t

Dept 2009), a f f d 14 NY3d 9 0 1 ( 2 0 1 0 ) , quoting R e g e n t s of Univ. of

Mich. v E w i n g , 4 7 4 US 2 1 4 , 2 2 5 ( 1 9 8 5 ) ; s e e M a t t e r of Kickertz v

N e w York U n i v . , 3 0 Misc 3d 1220 (A), *4 ( S u p Ct, NY County 2 0 1 1 ) .

Applying the above standards to the facts of this case, the

c o u r t finds that Hendessi has not demonstrated that his dismissal

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from NYCOM was arbitrary and capricious, without rational basis,

or discriminatory. There is no showing that respondent failed to

comply with its rules in dismissing him, o r that the rules

pertaining to COMLEX administrative leave, or the changes in the

r u l e s , were arbitrary and capricious, or applied to him in any

discriminatory manner. The affidavit of Mary Ann Achtziger,

Associate Dean of NYCOM, submitted in opposition to the petition,

sets forth sufficient evidence that NYCOM's decision to dismiss

petitioner, based on its consideration of petitioner's overall

academic performance, involved a proper exercise of its

discretionary judgment, and had a rational basis. See M a t t e r of

Patti Ann H. v N e w York N e d . Coll., 8 8 A D 2 d 296, 301 (2d Dept

1982), a f f d 5 8 N Y 2 d 734; M a t t e r of Gilbert v S t a t e U n i v . of N.Y.

at Stony Brook, 73 AD3d 774 (2d Dept 2010).

It is not disputed that NYCOM followed the rules and

procedures for COMLEX Level I1 administrative leave set forth in

the 2009-2010 Student Handbook, including the requirement that a

student going on leave complete and sign a leave form, and that

these rules were in effect for more than 10 months p r i o r to the

granting of petitioner's COMLEX I1 administrative leave. See

Student Handbook 2009-201.0, Ex. U to Answer, 5 I1 (C).

Petitioner argues, however, that the amended 2009-2010 rules were

a r b i t r a r i l y and capriciously applied to him, when the rules in

effect when he first enrolled should have been applied.

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 The 2005-2006 Student Handbook did not i n c l u d e a time

limitation f o r COMLEX administrative leave. Answer, ¶ 10; see

Student Handbook 2005-2006, Ex. B to Answer. The 2007-2008

Student Handbook amended the prior handbook to provide that

COMLEX I1 a d m i . n i . s t r a t i v e leave could not exceed 12 months. See

Student Handbook 2007-2008, Ex. X to Answer, § I1 (C). The 2009-

2010 Student Handbook, in effect at the time that petitioner was

required to go on COMLEX 11 administrative leave, further limited

the leave to 180 days. See Student Handbook 2009-2010, Ex. U to

Answer, 5 I1 (C). Although petitioner does not argue that he

should have been permitted unrestricted leave, as allowed in the

2005-2006 handbook, he contends that he should have been allowed

12 months, as provided in the 2007-2008 S t u d e n t Handbook.

The terms of the implied contract between a student and a

university “are set forth, for the most past, in the

institutions’s catalogue and other publications.” Downey, 23

AD3d a t 516; see Vought v Teachers Coll., C o l u m b i a U n i v . , 127

AD2d 654, 654-655 (2d Dept 1987). Contrary, however, to

petitioner’s argument that it was arbitrary and capricious, and a

breach of implied contract, to subject him to the rules i n the

2009-2010 handbook, he was a student enrolled during the 2009-

2010 s c h o o l year, who repeatedly t o o k the COMLEX Level I1 exams

from August 2009 through May 2010, and the 2009-2010 handbook

properly applied to him. See Keles v New York U n i v . , 1994 W L

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 119525, *6, 1994 US Dist LEXIS 4202, *18-19 (SD NY 1994), a f f d 54

F 3d 766 (2d Cir 1995), cert d e n i e d 516 US 943 (1995) (1986-1988

Bulletin, reducing number of times a candidate could sit for

qualifying exam from three, as set out: in 1984-1986 Bulletin, to

t w o , applied to plaintiff because, despite completing coursework

prior to amendment, he continued to t a k e qualifying exams in

1986-1988). Thus, petitioner’s argument that he should only have

been subjected to the rules in p r i o r handbooks is unavailing.

See M a t t e r of K i c k e r t z , 30 Misc 3d 1220(A), at *4 (“reliance on

outdated set of rules is misplaced”).

Moreover, courts have held that “[ilmplicit i n a

university’s general contract w i t h its students is a right to

change the academic degree requirements, provided that such

changes are not arbitrary a n d capricious.” B a b i k e r v Ross U n i v .

Sch. of Med., 2000 WL 666342, “6, 2000 US Dist LEXIS 6921, “ 2 2

(SD NY 2000), a f f d 86 Fed Appx 457 ( 2 d Cir 2004); s e e Owens v

P a r r i n e l l o , 3 6 5 F Supp 2d 353, 358 (WD NY 2005) (a change in

graduation requirements does n o t amount to a breach of the

implied contract); K e l e s , 1994 WL 119525, at *6, 1994 U S Dist

LEXIS 4202, at *19 (university could change regulations for

matriculation without breaching its c o n t r a c t ) . That is so

especially where, as here, students are advised that the rules

contained in the student handbooks are “subject to change when it

is deemed necessary and acted on by the Council of Deans,” and

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students are directed to check the school’s website frequently

for c h a n g e s . See Student Handbooks, Exs. B, U, X to Answer;

Keles, 1994 WL 119525, at “6, 1994 US Dist LEXIS 4202, at *19.

Moreover, there is no evidence here to suggest that the change in

the administrative l e a v e limits was aimed solely at petitioner.

C o m p a r e Downey, 23 AD3d at 516.

Petitioner‘s argument that he was coerced into signing the

COMLEX 11 leave form, by being told that he would otherwise not

graduate, also is unavailing. Even assuming arguendo that he was

told he would not graduate without taking leave to pass the

COMLEX I1 exams, that requirement was included in all of the

student handbooks, and petitioner does not allege that he was

unaware of that requirement. Petitioner cannot show, therefore,

that he “was entitled to be free” of the requirement to take

leave in order to pass exams required for graduation ( K a z a r a s v

M a n u f a c t u r e r s Trust C o . , 4 AD2d 227, 237 [ l s tDept 19571, a f f d 4

NY2d 930 [1958]: see Gerstein v 532 B r o a d Hollow Rd. Co., 7 5 AD2d

292, 297 [ l S tDept 1980]), or that he consented to taking leave

under a wrongful threat, or against his free will, or based on

fraudulent statements. See M a t t e r of S a r a h K . , 6 6 N Y 2 d 223, 242

(1985); F r e d E h r l i c h , P.C. v T u l l o , 274 AD2d 303, 304 (13tDept

2000); G e r s t e i n , 75 A D 2 d at 297.

As courts have noted, “although ‘it may be unfortunate to

spend years studying a discipline only to discover that one’s

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capabilities do not pass academic muster”’ (Keles, 1994 WL

119525, at “7, 1994 US Dist LEXIS 4202, at *23 [internal citation

omitted]), there is nothing arbitrary about requiring “a general

comprehensive examination to determine whether or not a student

is properly qualified [for a degree].” Id. Similarly, there is

nothing arbitrary in establishing procedures for COMLEX I1

administrative leave, which, as set out in the student handbooks,

is intended to g i v e students additional time to meet the

graduation requirement to pass the exams. Petitioner was

familiar with the procedures, including the need to sign a

request for leave, as he signed a COMLEX I leave request form two

y e a r s earlier, apparently without objection, and he does n o t

claim that he did not know w h a t he was signing when he submitted

the leave request form.

With respect to petitioner’s claim that he was discriminated

against based on his national origin, petitioner‘s sole

allegations in support of this claim are that a classmate named

Ben Chen received a year-long leave, a n d that, based on

petitioner‘s own observations about his graduating class, more

“minority” students failed to graduate than “Caucasian” students.

However, in her affidavit in opposition to the petition,

Associate Dean Achtziger attests, with supporting documentation,

that there is no record that a student named Ben Chen was ever

enrolled at NYCOM, and that since the implementation of the 180-

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 day limit on COMLEX I1 leave, no student has ever been asked to

sign a document retroactively changing the limit on leave from 12

months to 6 months. Achtziger Aff., ¶¶ 34-37. Petitioner offers

nothing to refute respondent's evidence and does not show, in any

event, that he and the student who allegedly received additional

time were similarly situated. By his own acknowledgment, the

other student passed his exam within six months. Hendessi Aff.,

¶ 13.

Further, petitioner's vague and conclusory allegation that,

based on his personal recollection, there was a great discrepancy

in graduation rates from the E'migre' Physician Program between

the "minority" students and the "Caucasian" students, is

unsupported by any evidence and is completely insufficient to

sustain a discrimination claim under the New York C i t y Human

Rights Law (Administrative Code of the City of New York 5 8-107

et s e q . ) . See G a r y v N e w Y o r k U n i v . , 48 AD3d 235, 236 ( l S tDept

2008); Ochei v Helene E u l d . Coll. of N u r s i n g of N. Gen. H o s p . , 22

AD3d 222 (13tDept 2005); Moukarzel v Montefiore Med. Ctr., 235

AD2d 239, 240 (1" Dept 1997); B a b i k e r , 2000 WL 666342, at "5,

2000 US Dist LEXIS 6921, at *20. The court has considered

petitioner's remaining arguments and finds them without merit.

To the extent that respondent seeks summary judgment on its

counterclaims, or, al-ternatively, severance of them, that

application is granted in p a r t , to the extent that t h e

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 counterclaims will be severed and s h a l l continue as a plenary

action; the application is otherwise denied without prejudice to

a later, timely motion f o r summary judgment. Without reaching the

merits of the counterclaims, the claims and relief sought by

respondent are unrelated to the propriety of respondent’s

dismissal of petitioner, and are properly severed. See CPLR 407;

D i s t r i c t Council No. 9 , I n t l . B r o t h e r h o o d of Painters & Allied

T r a d e s v Metropolitan T r a n s p . Auth., 115 Misc 2d 810, 812 (Sup

Ct, NY County 1982), a f f d 92 AD2d 791 ( l S tDept 1983); Rattner v

Planning Commn. of P l e a s a n t v i l l e , 156 A D 2 d 521, 528 (2d Dept

1989); M c N a m a r a v C o m m i s s i o n e r of E d u c . , N.Y. State E d u c . D e p t . ,

80 AD2d 660, 661 (3d Dept 1981); N o d i n e v Board of T r u s t e e s of

Vil. of Baldwinsville, 44 AD3d 764, 764-765 ( 4 t h Dept 1974).

Accordingly, it is

ORDERED and A D J U D G E D t h a t the petition is denied and t h e

proceeding is dismissed, w i t h costs and disbursements to

respondent, as taxed by the Clerk; and it is further

ORDERED that the counterclaims are severed and shall

continue as an action under the same i n d e x number and the

existing pleadings, unless the Justice to be assigned orders

otherwise; and it is further

O R D E R E D that the action is transferred to t h e T r i a l Support

Office for reassignment to a General IAS Part. Respondent is

directed to serve a copy of this order on all parties and t h e

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T r i a l Support O f f i c e (60 C e n t r e St., Room 119).

Dated: August 31,2012 ENTER:

New York, New Y o r k
STALLMAN, J . S . C .

UNFILED JUDGMENT
This Judgmenthas not been entered by the County Clerk
and notice ofentry cannot be served based hereon. To
obtain entry, counsel or authorized represmhtive must
appear in person at the J-ment Clerk’s Desk (Ram
141B).

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