Opinion
6291 Index 100228/16
04-17-2018
Esteban DONOSO, Plaintiff–Appellant, v. NEW YORK UNIVERSITY, Defendant–Respondent.
Law Offices of Michael Dachs, New York (Michael Dachs of counsel), for appellant. Jeffrey Metzler, New York, for respondent.
Law Offices of Michael Dachs, New York (Michael Dachs of counsel), for appellant.
Jeffrey Metzler, New York, for respondent.
Sweeny, J.P., Renwick, Mazzarelli, Kahn, Gesmer, JJ.
Order, Supreme Court, New York County (Robert R. Reed, J.), entered on or about January 11, 2017, which granted defendant's motion to dismiss the complaint pursuant to CPLR 3211(a)(1), (5) and (7), unanimously affirmed, without costs.
Plaintiff, an Ecuadorian attorney, applied for admission to the Doctor of Juridical Science (JSD) program at defendant's School of Law and was admitted instead to the Master of Laws (LLM) program. The application instructions stated that admission to the LLM program did "not guarantee or assure admission to the J.S.D. program." While enrolled in the LLM program, plaintiff applied again to the JSD program and was admitted. He then signed a "Graduate Division Intention to Enroll" form stating, in pertinent part, "I understand that my admission and enrollment is conditional upon the continued excellence in my LLM coursework." Plaintiff's GPA dropped in his second semester, and in June 2015 defendant "withdrew" him from the JSD program. Plaintiff initiated a voluntary student grievance and, about four months after the grievance was denied, commenced this action alleging breach of contract, fraud, and violation of General Business Law § 349. After defendant moved to dismiss, plaintiff filed an amended complaint adding a promissory estoppel claim and a claim for violation of civil rights pursuant to 42 USC § 1983.
In its motion to dismiss, defendant addressed the amended complaint, which plaintiff filed at the same time as his opposition to the motion (see Sage Realty Corp. v. Proskauer Rose, 251 A.D.2d 35, 38, 675 N.Y.S.2d 14 [1st Dept. 1998] ). Under the circumstances, since the additional causes of action were essentially a "repackaging" of the original claims, the court providently exercised its discretion in denying plaintiff's request to submit a sur-reply (see DiPasquale v. Security Mut. Life Ins. Co. of N.Y., 293 A.D.2d 394, 395, 740 N.Y.S.2d 626 [1st Dept. 2002] ).
Regardless of how plaintiff frames his complaint, all his claims challenge defendant's academic determination to withdraw his admission to the JSD program and therefore should have been brought via an article 78 proceeding (see Peterman v. New York Coll. of Traditional Chinese Medicine, 129 A.D.3d 474, 9 N.Y.S.3d 870 [1st Dept. 2015] ; Alrqiq v. New York Univ., 127 A.D.3d 674, 6 N.Y.S.3d 917 [1st Dept. 2015], lv denied 27 N.Y.3d 910, 2016 WL 3524311 [2016] ; Keles v. Trustees of Columbia Univ. in the City of N.Y., 74 A.D.3d 435, 436, 903 N.Y.S.2d 18 [1st Dept. 2010], lv dismissed 16 N.Y.3d 890, 924 N.Y.S.2d 319, 948 N.E.2d 925 [2011], cert denied 565 U.S. 884, 132 S.Ct. 255, 181 L.Ed.2d 148 [2011] ).
The four-month statute of limitations applicable to article 78 proceedings ( CPLR 217[1] ) was not tolled by plaintiff's invocation of defendant's voluntary student grievance procedure (see Matter of Bargstedt v. Cornell Univ., 304 A.D.2d 1035, 1036, 757 N.Y.S.2d 646 [3d Dept. 2003] ; Matter of Jones v. McGuire, 92 A.D.2d 788, 789, 459 N.Y.S.2d 784 [1st Dept. 1983] ; see also Matter of Queensborough Community Coll. of City Univ. of N.Y. v. State Human Rights Appeals Bd., 41 N.Y.2d 926, 926, 394 N.Y.S.2d 625, 363 N.E.2d 349 [1977] [limitation period is not tolled "by the invocation of (a) grievance procedure which is merely an alternative remedy"] ). Since this action was commenced some eight months after plaintiff was notified of defendant's decision to withdraw him from the JSD program, it is time-barred.
To the extent the fraud, General Business Law § 349, and promissory estoppel claims are based on allegations that defendant's application instructions are misleading concerning the requirements for admission to the JSD program, the claims were correctly dismissed, because the allegations are refuted by the documents themselves, which are referenced and quoted in the amended complaint, and plaintiff could not reasonably have relied on any implication that he would be admitted (see Gomez–Jimenez v. New York Law Sch., 103 A.D.3d 13, 956 N.Y.S.2d 54 [1st Dept. 2012], lv denied 20 N.Y.3d 1093, 965 N.Y.S.2d 78, 987 N.E.2d 639 [2013] ).
The claim alleging a violation of plaintiff's civil rights ( 42 USC § 1983 ) was correctly dismissed, because defendant, a private university, was not acting under "color of state law" (see American Mfrs. Mut. Ins. Co. v. Sullivan, 526 U.S. 40, 49–50, 119 S.Ct. 977, 143 L.Ed.2d 130 [1999] ; Kahn v. New York Univ. Med. Ctr., 328 Fed.Appx. 758 [2nd Cir.2009] ; Consumers Union of U.S., Inc. v. State of New York, 5 N.Y.3d 327, 347 n. 14, 806 N.Y.S.2d 99, 840 N.E.2d 68 [2005] ; Under 21, Catholic Home Bur. for Dependent Children v. City of New York, 65 N.Y.2d 344, 361–362, 492 N.Y.S.2d 522, 482 N.E.2d 1 [1985] ).