Opinion
15574, 150622/13
06-16-2015
Seth MITCHELL, CFA, Plaintiff–Appellant, v. NEW YORK UNIVERSITY (“NYU”), et al., Defendants–Respondents.
Seth Mitchell, appellant pro se. Terrance Nolan, New York (William H. Miller of counsel), for respondents.
Seth Mitchell, appellant pro se.
Terrance Nolan, New York (William H. Miller of counsel), for respondents.
TOM, J.P., ACOSTA, ANDRIAS, MOSKOWITZ, CLARK, JJ.
Opinion Order, Supreme Court, New York County (Joan A. Madden, J.), entered on or about January 14, 2014, which granted defendants' motion to dismiss the complaint and denied plaintiff's cross motion for a default judgment against defendants, unanimously affirmed, without costs. The motion court properly determined that an Article 78 proceeding, not a plenary action, is the “appropriate vehicle” for plaintiff's challenges to defendant New York University's administrative decision to exclude him from the university after he failed to submit to an evaluation by the university's mental health center following a report that his behavior allegedly caused one of his instructors to be concerned that he might pose a threat to others in the classroom (see Maas v. Cornell Univ., 94 N.Y.2d 87, 92, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999] ). However, such a proceeding is time-barred. The complaint alleges that NYU informed plaintiff on September 7, 2012, that he had been declared persona non grata. However, plaintiff did not commence the instant action until January 22, 2013, more than four months later (see Padiyar v. Albert Einstein Coll. of Medicine of Yeshiva Univ., 73 A.D.3d 634, 635, 900 N.Y.S.2d 866 [1st Dept.2010], lv. denied 15 N.Y.3d 708, 2010 WL 3632711 [2010] ). That plaintiff had not yet withdrawn from the university or that he engaged in settlement discussions did not toll the four month limitation period (see Goonewardena v. Hunter Coll., 40 A.D.3d 443, 835 N.Y.S.2d 579 [1st Dept.2007] ). Plaintiff's request that this Court convert his plenary action to an Article 78 proceeding, pursuant to CPLR 103(c), must be denied since the statute of limitations expired (see Gertler v. Goodgold, 107 A.D.2d 481, 487, 487 N.Y.S.2d 565 [1st Dept.1985], affd. 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748 [1985] ).
The motion court properly dismissed plaintiff's additional claims for failure to state a cause of action. The complaint failed to set forth the particular words complained of or to satisfy the publication requirement in support of the claim for defamation per se (see CPLR 3016 ; Dillon v. City of New York, 261 A.D.2d 34, 38, 704 N.Y.S.2d 1 [1st Dept.1999] ). NYU's direct communications with plaintiff did not constitute a publication to any third party, and any communication by NYU to its public safety officers is protected by a qualified privilege (see Foster v. Churchill, 87 N.Y.2d 744, 751, 642 N.Y.S.2d 583, 665 N.E.2d 153 [1996] ). Plaintiff's conclusory allegations of malice are insufficient to overcome the privilege (see Gondal v. New York City Dept. of Educ., 19 A.D.3d 141, 796 N.Y.S.2d 594 [1st Dept.2005] ).
The assault claim fails to allege that the public safety officers engaged in intentional physical conduct that placed plaintiff in apprehension of harmful contact (see Gould v. Rempel, 99 A.D.3d 759, 760, 951 N.Y.S.2d 677 [1st Dept.2012] ).
The complaint also fails to allege conduct that approaches the level of outrageousness or extremeness necessary to support a claim of intentional infliction of emotional distress or a causal connection between the alleged conduct and plaintiff's claimed distress (see Howell v. New York Post Co., 81 N.Y.2d 115, 121–122, 596 N.Y.S.2d 350, 612 N.E.2d 699 [1993] ). Inasmuch as the complaint fails to allege that plaintiff was confined by the public safety officers, it does not state a cause of action for false imprisonment (see Elson v. Consolidated Ed. Co. of N.Y, 226 A.D.2d 288, 289, 641 N.Y.S.2d 294 [1st Dept.1996] ).
The negligence claim was merely a challenge to NYU's determination to declare plaintiff persona non grata; defendants had no legal duty to allow plaintiff to remain on the premises or enrolled as a student following his non-compliance with the request for a mental health evaluation.
Plaintiff's claim for violation of his First Amendment right to free speech was properly dismissed. Neither private universities nor their employees are “state actors” for the purpose of constitutional claims, including claims alleging violation of the right to free speech (see Powe v. Miles, 407 F.2d 73, 80–81 [2d Cir.1968] ).
The complaint fails to allege that defendants received anything rightfully belonging to plaintiff, or that they were otherwise enriched at his expense to support his claim for unjust enrichment (see Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d 173, 182, 919 N.Y.S.2d 465, 944 N.E.2d 1104 [2011] ). To the extent plaintiff's claim was based on tuition expenses he has paid, this argument was improperly raised for the first time on appeal and, in any event, is unavailing, since such a claim must be asserted in an Article 78 proceeding, which, as discussed, is time-barred (see Kickertz v. New York Univ., 110 A.D.3d 268, 276–277, 971 N.Y.S.2d 271 [1st Dept.2013] ).
Plaintiff's eighth cause of action, for front pay, is not an independent cause of action, but a remedy available in the context of employment law (see e.g. Whittlesey v. Union Carbide Corp., 742 F.2d 724 [1984] ).
Plaintiff's cross motion for a default judgment against defendants on the ground that their motion to dismiss was untimely filed was properly denied. Since the twentieth day following service of the summons fell on a public holiday, President's Day, the deadline was extended until the following business day (see CPLR 320 ; General Construction Law § 25–a ), the day that defendants served their motion to dismiss (see Robayo v. Edison Price, Light., Inc., 119 A.D.3d 763, 989 N.Y.S.2d 328 [2d Dept.2014] ).
Contrary to plaintiff's contention, a motion made pursuant to CPLR 3211 does not need to be supported by an affidavit from someone with personal knowledge of the facts (see Town New Development Sales & Marketing LLC v. Price, 127 A.D.3d 549, 5 N.Y.S.3d 734 [1st Dept.2015] ).
We have considered plaintiff's remaining contentions and find them unavailing.