| Matter of Gilbert v State Univ. of N.Y. at Stony Brook |
| 2010 NY Slip Op 03930 [73 AD3d 774] |
| May 4, 2010 |
| Appellate Division, Second Department |
| In the Matter of Joseph Gilbert, Appellant, v StateUniversity of New York at Stony Brook et al., Respondents. |
—[*1] Andrew M. Cuomo, Attorney General, New York, N.Y. (Michael S. Belohlavek and MarionR. Buchbinder of counsel), for respondents.
In a proceeding pursuant to CPLR article 78, inter alia, to compel the respondents StateUniversity of New York at Stony Brook, State University of New York at Stony Brook, Schoolof Medicine, and Richard N. Fine to reinstate the petitioner as a student at the respondent StateUniversity of New York at Stony Brook, School of Medicine, the appeal is from (1) an order ofthe Supreme Court, Suffolk County (Molia, J.), dated December 15, 2008, and (2) a judgment ofthe same court entered August 5, 2009, which, upon the order, denied the amended petition anddismissed the proceeding.
Ordered that the appeal from the order is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondents.
The appeal from the intermediate order must be dismissed because the right of direct appealtherefrom terminated with the entry of judgment in the action (see Matter of Aho, 39NY2d 241, 248 [1976]). The issues raised on the appeal from the order are brought up for reviewand have been considered on the appeal from the judgment (see CPLR 5501 [a] [1]).
In November 2007, the petitioner, a third-year student at the respondent State University ofNew York at Stony Brook, School of Medicine (hereinafter the medical school), was dismissedfrom the medical school. Thereafter, he commenced this CPLR article 78 proceeding seeking,inter alia, to compel the respondents to reinstate him.
"Judicial review of the determinations of educational institutions regarding the academicperformance of students is limited to the question of 'whether the challenged determination wasarbitrary and capricious, irrational, made in bad faith or contrary to Constitution or statute' "(Matter of Williams [*2]v State Univ. of N.Y.—HealthScience Ctr. at Brooklyn, 251 AD2d 508 [1998], quoting Matter of Susan M. v NewYork Law School, 76 NY2d 241, 246 [1990]).
Here, the record indicates that the petitioner's academic performance was deficient asmeasured by the medical school's standards, and that the petitioner failed a clerkship while onacademic probation. Thus, contrary to the petitioner's contention, the determination to dismisshim was properly based upon academic considerations, and was not arbitrary and capricious(see Matter of Williams v State Univ. of N.Y.—Health Science Ctr. at Brooklyn,251 AD2d at 508; Matter of Jeudy v City Coll. of N.Y., 233 AD2d 127 [1996];Esmail v State Univ. of N.Y. Health Science Ctr. at Brooklyn, 220 AD2d 328 [1995];Matter of Rafman v Brooklyn Coll. of City Univ. of N.Y., 212 AD2d 795, 796 [1995]).
The petitioner's remaining contentions are without merit. Accordingly, the Supreme Courtproperly denied the amended petition and dismissed the proceeding. Rivera, J.P., Dillon, Florioand Balkin, JJ., concur.