| Matter of Rizvi v New York Coll. of Osteopathic Medicine of N.Y. Inst.of Tech. |
| 2012 NY Slip Op 06219 [98 AD3d 1049] |
| September 19, 2012 |
| Appellate Division, Second Department |
| In the Matter of Syed Bilal Raza Rizvi, Appellant, v NewYork College of Osteopathic Medicine of New York Institute of Technology,Respondent. |
—[*1] Elan Raday, New York, N.Y., for respondent.
In a proceeding pursuant to CPLR article 78 to review a determination of New York Collegeof Osteopathic Medicine of New York Institute of Technology dated August 10, 2009, expellingthe petitioner as its student and to compel New York College of Osteopathic Medicine of NewYork Institute of Technology to reinstate the petitioner as a student, to take all action necessary toenable the petitioner to register for and take the COMLEX Level II CE examination, and, in theevent he passes the examination, to confer upon him the degree of Doctor of OsteopathicMedicine, the petitioner appeals from a judgment of the Supreme Court, Nassau County(McCarty III, J.), dated April 28, 2010, which, upon an order of the same court entered March 22,2010, granting the motion of New York College of Osteopathic Medicine of New York Instituteof Technology pursuant to CPLR 3211 (a) (1) and (7) and 7804 (f) to dismiss the petition,dismissed the proceeding. The notice of appeal from the order is deemed to be a notice of appealfrom the judgment (see CPLR 5512 [a]).
Ordered that the judgment is reversed, on the law and the facts, with costs, the motion todismiss the petition is denied, the petition is reinstated and granted, and New York College ofOsteopathic Medicine of New York Institute of Technology is directed to reinstate the petitioneras a student, to take all action necessary to enable the petitioner to register for and take theCOMLEX Level II CE examination one time within 120 days of this decision and order and, inthe event that the petitioner passes the examination, to confer upon him the degree of Doctor ofOsteopathic Medicine, and the order is modified accordingly.
The petitioner enrolled as a student at New York College of Osteopathic Medicine of NewYork Institute of Technology (hereinafter NYCOM) on August 18, 2003. All NYCOM studentswere required to complete graduation requirements within six years from their date ofenrollment.
In October 2007, during his fourth year at NYCOM, the petitioner was informed by one ofthe academic deans that his passing grades in two clinical rotations, or clerkships, were beingchanged to failures, due to deficiencies in his attendance and allegations that he had falsified hisattendance records for those two rotations. As a result of failing those two clinical rotations, the[*2]petitioner was initially expelled from NYCOM as a student.The petitioner internally appealed his expulsion twice, and was reinstated on academic probation,on the condition that, by May 2009, he complete and achieve passing grades in all clerkships asscheduled. In accordance with the conditions imposed upon his probation and reinstatement, thepetitioner's failure to do so would result in his expulsion from NYCOM, without the right to aninternal appeal.
By May 2009, the petitioner completed all of his required coursework and clerkships, as wellas two of the three required examinations (known as the COMLEX Level I CE and Level II PE)administered by the National Board of Osteopathic Medical Examiners (hereinafter NBOME).He sat for the third required national examination (known as COMLEX Level II CE) in April2009, but failed it. Upon learning of the failure, the petitioner registered to retake theexamination, which was to be next administered on June 29, 2009. On May 12, 2009, thepetitioner met with NYCOM Dean Thomas Scandalis, who told him that if he did not pass theexamination administered on June 29, 2009, he would be immediately expelled from NYCOMwithout the right of internal appeal. However, since the petitioner had completed all othergraduation requirements, he was permitted to fully participate in the NYCOM graduationceremonies on May 18, 2009.
In mid-June 2009, the petitioner became ill with the flu. As the test date for the COMLEXLevel II CE approached and the petitioner remained ill, he allegedly became convinced that hewould be unable to take and pass the examination administered on June 29, 2009. Accordingly,he sought to reschedule his sitting for the examination to July 7, 2009. On June 25, 2009, hereceived an email from NYCOM Dean Felicia Bruno, who informed him that she had learned ofthe rescheduled date, and warned him that if he did not take the examination on June 29, 2009, asoriginally scheduled, he would be automatically dismissed from NYCOM. Despite discussionswith Dean Bruno and Dean Scandalis's secretary on June 25, 2009, in which the petitionerinformed them that the examination results for the June 29, 2009, and July 7, 2009,administrations of the COMLEX Level II CE examination would both be released by NBOMEon the same day (on or about August 8, 2009—within the six-year deadline to complete hisgraduation requirements), the petitioner was not permitted to reschedule his sitting for theexamination.
Despite his illness, the petitioner took the examination as directed on June 29, 2009, andfailed it. After NYCOM received these examination results, it advised the petitioner, in a letterdated August 10, 2009, that he was dismissed as a student from NYCOM, without the right to aninternal appeal.
The petitioner commenced this proceeding to review NYCOM's determination to dismisshim as a student and to compel NYCOM to reinstate him as a student for the purposes ofallowing him to retake the COMLEX Level II CE examination, to take all action necessary toenable him to register for and take the COMLEX Level II CE examination, and, if he passed it, toaward him a degree. NYCOM moved to dismiss the petition pursuant to CPLR 3211 (a) (1) and(7) and 7804 (f). The Supreme Court granted the motion, and dismissed the proceeding. Thepetitioner appeals. We reverse the judgment, deny the motion, and grant the petition.
We initially note that NYCOM's motion, although denominated as one pursuant to CPLR3211 (a) (1) and (7) and 7804 (f), presented extensive factual material and arguments addressedto the merits of the petition. Thus, under the particular circumstances of the case, where thedispositive facts were undisputed and the arguments of the parties with respect to the merits ofthe proceeding were fully set forth in the record before the Supreme Court, it is appropriate thatwe reach the merits of the petition (see Matter of Nassau BOCES Cent. Council of Teachers vBoard of Coop. Educ. Servs. of Nassau County, 63 NY2d 100, 101-102 [1984]; Matter of Kuzma v City of Buffalo, 45AD3d 1308, 1310-1311 [2007]; Matter of Laurel Realty, LLC, v Planning Bd. of Town of Kent, 40AD3d 857 [2007]), notwithstanding the procedural posture in which this matter reaches us(cf. Matter of Bethelite CommunityChurch, Great Tomorrows Elementary School v Department of Envtl. Protection of City ofN.Y., 8 NY3d 1001 [2007]).
Judicial review of the determinations of educational institutions as to the academicperformance of their students is limited to the question of whether the challenged determinationwas [*3]arbitrary and capricious, irrational, made in bad faith, orcontrary to statute or the United States or New York Constitutions (see Matter of Susan M. vNew York Law School, 76 NY2d 241, 246 [1990]; Matter of Gilbert v State Univ. of N.Y. at Stony Brook, 73 AD3d774 [2010]; Matter of Cunningham v Pace Univ., 288 AD2d 218 [2001]). Strongpolicy considerations militate against the intervention of the courts in controversies relating to aneducational institution's judgment of a student's academic performance (see Matter of SusanM. v New York Law School, 76 NY2d at 245; Matter of Olsson v Board of Higher Educ.of City of N.Y., 49 NY2d 408, 416 [1980]; Matter of Cunningham v Pace Univ., 288AD2d 218 [2001]).
NYCOM does not dispute that the petitioner had completed all coursework and clerkshipsrequired for graduation, and had been permitted to participate in graduation ceremonies. Thepetitioner correctly contends that NYCOM's refusal to allow him to reschedule his sitting for theCOMLEX Level II CE examination was arbitrary and capricious. There is no dispute thatNYCOM did not write, administer, or grade the COMLEX examinations, which are administerednationally by NBOME. There is also no dispute that students schedule the COMLEXexaminations themselves, and are permitted to reschedule them. There is no provision inNYCOM's 2008-2009 student handbook limiting the number of times a student can take theCOMLEX examinations, and NYCOM does not dispute that students have more than twoopportunities to retake the COMLEX examinations without consequence. Under these particularfacts, NYCOM's determination to prohibit the petitioner from rescheduling his sitting for theexamination could not be deemed an example of an educational institution's judgment of astudent's academic performance.
When, as here, action taken against a student is predicated upon grounds unrelated toacademic achievement, the operative standard requires that the educational institution proceed inaccordance with its own rules and guidelines. In situations involving nonacademic discipline,when a university "acts within its jurisdiction, not arbitrarily but in the exercise of an honestdiscretion based on facts within its knowledge that justify the exercise of discretion, a court maynot review the exercise of its discretion" (Matter of Carr v St. John's Univ., N.Y., 17AD2d 632, 634 [1962], affd 12 NY2d 802 [1962]; see also Matter of Harris vTrustees of Columbia Univ., 98 AD2d 58, 67 [1983] [Kassal, J., dissenting], revd forreasons stated in dissent 62 NY2d 956 [1984]; Matter of Mitchell v New York Med.Coll., 208 AD2d 929, 930 [1994]; Matter of Galiani v Hofstra Univ., 118 AD2d 572[1986]; Matter of Carr v St. John's Univ., N.Y., 17 AD2d at 634). Therefore, whether thedetermination of an educational institution involves a student's academic performance, as allegedby NYCOM, or matters unrelated to academic performance, as alleged by the petitioner, a courtmay review that action to determine if it was arbitrary and capricious.
There is no basis in this record supporting NYCOM's determination to treat the petitionerdifferently than nonprobationary students in regard to the nationally administered boardexaminations simply because he was a probationary student. NYCOM did not make it acondition of the petitioner's academic probation that he pass the COMLEX Level II CEexamination on his first or second try. The petitioner was only required to complete hisclerkships on time, as scheduled, that is, by May 2009. If he did not, he would be dismissedwithout the right to an internal appeal. Neither the November 27, 2007 letter from DeanScandalis setting forth the terms of the petitioner's probation, nor the NYCOM student handbookprovides that, as a probationary student, the petitioner was required to pass the COMLEX LevelII CE examination on his first or second try, that he was not permitted to select his own test date,or that once he scheduled the examination he could not reschedule it.
NYCOM never stated, verbally or in writing, the reasons why it refused to permit thepetitioner to take the COMLEX Level II CE examination on July 7, 2009, instead of June 29,2009. Dean Bruno's letter of June 25, 2009 indicated that she was aware that the petitioner hadrescheduled his examination for July 7, 2009 and stated that if he did not take the examination onJune 29, 2009 he would be automatically dismissed as a student. No reason was given for thisdecision, and it was not expressly based on any misconduct or academic failures on the part ofthe petitioner. There is no written memorialization of the petitioner's conversations with DeanBruno and Dean Scandalis's secretary, on June 25, 2009, but the petitioner's account of thoseconversations provides no indication that any reason was given for NYCOM's refusal to let himtake the [*4]examination on July 7, 2009, rather than June 29,2009. The record is devoid of any evidence to contradict the petitioner's account of thoseconversations.
NYCOM was required to proceed in accordance with its own rules and guidelines. Therecord establishes that NYCOM did not abide by its own rules and guidelines regarding academicprobation, as it imposed an additional restriction on the petitioner not articulated in the NYCOMstudent handbook. NYCOM did not abide by its own six-year deadline for the petitioner'scompletion of graduation requirements, as it did not permit the petitioner to reschedule theCOMLEX Level II CE examination even where the results would be received within the six-yeardeadline. To the extent that the petitioner's previous misconduct resulted in his probationarystatus, that prior misconduct was also not a basis to treat him differently than other studentsregarding a nationally administered board examination, as the petitioner paid the penalty for anymisconduct by being required to abide by the terms of his probation, which did not include arestriction on when or how many times he could take those nationally administeredexaminations. Accordingly, NYCOM did not abide by its own conditions of probation.
Based on these unique facts, we conclude that NYCOM acted irrationally and, hence,arbitrarily and capriciously in refusing to allow the petitioner to reschedule his sitting for theCOMLEX Level II CE examination. An implied contract exists between NYCOM and itsstudents such that if a student complies with the terms prescribed by NYCOM, he or she willobtain the degree which he or she sought (see Matter of Olsson v Board of Higher Educ. ofCity of N.Y., 49 NY2d at 414; Vought v Teachers Coll., Columbia Univ., 127 AD2d654 [1987]; Matter of Carr v St. John's Univ., N.Y., 17 AD2d 632 [1962]). "The essenceof the implied contract is that an academic institution must act in good faith in its dealings withits students" (Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d at414). NYCOM did not act in good faith in its dealings with the petitioner, who was attempting tocomply with the terms prescribed by the institution by taking and passing the COMLEX Level IICE examination before the six-year deadline imposed by NYCOM.
Accordingly, under the circumstances, the petition should have been granted. Mastro, A.P.J.,Florio, Lott and Cohen, JJ., concur.