Opinion
400744/09.
Decided November 8, 2010.
This action seeks to recover damages for breach of contract and discrimination based on the rejection by the defendants of plaintiff's defense of his doctoral dissertation. Defendant Teachers College moves to restore its motion to dismiss, which was erroneously granted on default and, upon restoration, seeks an order dismissing the amended complaint as untimely and for failure to state a cause of action (motion seq. 002). Defendant Irving S. Hamer separately moves to dismiss the amended complaint against him (motion seq. no. 003) on the same grounds as set forth in Teacher's College's motion. Plaintiff, appearing pro se, opposes the motions, which are granted for the reasons stated below.
By decision and order dated March 2, 2010, the court vacated the court's order dated February 3, 2010, which granted the motion to dismiss on default and restored the motion to dismiss to the calendar in the motion support office. As the motion to restore already has been granted, this decision addresses only the merits of the Teachers College's dismissal motion.
Motion seq. nos. 002 and 003 are consolidated for disposition.
BACKGROUND
Plaintiff was formerly enrolled in the doctoral program of education administration at defendant Teachers College, Columbia University ("Teachers College" or "College"). Defendant Dr. Irving S. Hamer ("Hamer") is a former Teachers College faculty member. Plaintiff filed a complaint filed on March 30, 2009, and plaintiff subsequently filed an Amended Complaint (the "Amended Complaint") on July 10, 2009
By stipulation of discontinuance dated October 19, 2009, plaintiff agreed to dismiss with prejudice the claims against the other individual defendants, who were members of the faculty at Teachers College
The following facts are based on the allegations in the Amended Complaint which, for the purposes of this motion, must be accepted as true. Plaintiff enrolled in a doctoral program of education administration at Teachers College in September 1993, and for several years he pursued his degree at the college, including attending weekly meetings of the dissertation writing support group from January 2001 through October 2002. In August 2002, the plaintiff had a verbal altercation about the scheduling of his dissertation with a dismissed defendant, Thomas Sobol, the Chair of the Doctoral Department. The Doctoral Studies Office of the College removed Sobol and added Leslie Bartlett, another dismissed defendant, to plaintiff's dissertation committee (the "Committee") and Hamer, the last remaining individual defendant, agreed to be on the Committee as an outside examiner. In a conversation between the plaintiff and Hamer referring to the altercation with Sobol, Hamer reportedly asked the plaintiff, "Why do you want to draw so much attention to yourself?" (Amended Complaint at ¶ 21).
A week prior to the oral defense of the plaintiff's dissertation, plaintiff asked Hamer if there was anything wrong with the dissertation. Hamer responded, "I will let you know at the defense" (Amended Complaint at ¶ 22). On October 16, 2002, plaintiff defended his dissertation to the Committee, which the two external examiners, Hamer and Bartlett, rated as unacceptable. Consequently, plaintiff failed the oral defense of his dissertation on October 16, 2002, and was not given a doctoral degree from Teachers College in 2003.
The gravamen of the breach of contract claim is that defendants failed to comply with a handbook prepared by the College's Committee on the Ed.D. Degree, A Guide to the Oral Defense of the Doctoral Dissertation (the "Guide"). Specifically, plaintiff alleges that the external examiners did not inform the dissertation's sponsor "how they felt about the dissertation until the day of the defense" (Amended Complaint at ¶ 23), and that this failure was contrary to the Teachers College Guide to Dissertation Oral Defense which requires that "[a]n external examiner who, on reading the dissertation, finds something in the dissertation that makes it clearly unacceptable, should immediately notify the dissertation Sponsor . . ." (Amended Complaint at ¶ 23, quoting the Guide, at 3).
The Amended Complaint alleges that plaintiff began to pursue an administrative remedy with the College in the Spring Semester of 2003." Plaintiff states that "[a]t the end of the Spring Semester 2003, the administrative process resulted in the dissertation being labeled a failure as determined by the Dean of Students and the new' Chair of the Office of Doctoral Studies William J Baldwin. When questioned about the Guide to Dissertation Oral Defenses, Baldwin said, the faculty (i.e. outside examiners) made their decision to fail you based on your arguments during the dissertation defense.'" (Amended Complaint at ¶ 26).
In plaintiff's Reply to Motion to Dismiss, he states that "the administrative hearing regarding this case took place from October 2002 through September 2003 and again in November 2005 through August 2006" (Plaintiff's Reply to Teachers College's Motion to Dismiss at ¶ 1 under heading "Standards of Motion to Dismiss"). These unsubstantiated allegations should not be considered as they were raised for the first time in reply. In any event, even if considered they would not render plaintiff's claims timely.
Following the administrative process, the plaintiff alleged that he did not pursue a remedy in court "for fear of imperiling his chances of obtaining the Doctoral degree in the future." (Amended Complaint at ¶ 27). Plaintiff also attended a weekly qualitative writing group from September 2003 to December 2005. After completing a revised draft of his dissertation in the fall of 2007, on December 17, 2007 the plaintiff successfully defended his revised dissertation, and graduated with a doctoral degree from Teachers College on May 21, 2008 (Amended Complaint at ¶ 13 — 14).
On March 30, 2009, plaintiff commenced this action, alleging that the doctoral Committee did not follow the guidelines contained in the defendant's Guide, which resulted in a breach of contract, as well as a second claim that the defendants' actions amounted to discrimination. The breach of contract claim asserts that a "contract existed between the Office of Doctoral Studies and the plaintiff regarding completion of the dissertation," though there is no allegation or evidence of any formal contract signed by either party has been provided, other than the stated references to the Guide and plaintiff's enrollment in the doctoral program. The discrimination claim alleges that the defendants unfairly discriminated against plaintiff based on race and the "topic of the dissertation that showed support for African Centered Schools."
It appears from the record the defendants may not have been first served until the Amended Complaint was filed in July 2009. However, as indicated below, even if the court assumes for the purposes of the statute of limitations issue that the action was commenced on March 30, 2009, the action would be untimely.
THE MOTION
Defendants argue that plaintiff's breach of contract claim must be dismissed as the only redress for this contract claim is to seek review by way of an Article 78 proceeding. Defendants also argue that had plaintiff sought Article 78 relief, the proceeding would be time-barred based on the four month statute of limitations applicable to such proceedings, and that in any event, the Guide does not provide a basis for a breach of contract claim. Defendants next argue the discrimination claim is untimely based on the three year limitation applicable to such claims, and that the Amended Complaint fails to state a cause of action for discrimination.
The Appellate Division, First Department has written regarding the court's limited role in reviewing academic determinations:
Judicial review of determinations of educational institutions regarding the academic performance of their students is limited to the questions of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith, or in violation of the Constitution or statute. . . . Thus, to the extent that petitioner's allegations attack the substantive evaluation of her academic performance, they are beyond judicial review.
Benson v. Trustees of Columbia University, 215 AD2d 255, 256 (1st Dept. 1995), lv denied, 87 NY2d 808 (1996). Otherwise put, actions challenging "the subjective professional judgments of trained educators," are subject to review under Article 78 and not in a plenary action. Kraft v. Yeshiva Univ., 2001 U.S. Dist. Lexis 16152, at *13 — 14 (S.D.NY 2001). See also Gary v. NY Univ. , 48 AD3d 235 , 236 (1st Dept. 2008) ("In challenging the termination of her matriculation, along with allegations based on contract . . . and racial discrimination, the pro se plaintiff should have brought a proceeding under CPLR article 78, rather than this plenary action.") (citations omitted) (emphasis in original).
Under these principles, plaintiff's breach of contract claim made in connection with defendants' rejection of plaintiff's dissertation defense is subject only to review via an Article 78 proceeding. See Silverman v. New York University School of Law, 193 AD2d 411 (1st Dept), lv denied, 82 NY2d 658 (1993) (holding that student's breach of contract claim based on alleged violations of student handbook was only judicially addressable via and Article 78 proceeding); Demas v. Levitsky, 291 AD2d 653, 660 (3d Dept. 2002), lv dismissed, 98 NY2d 728 (2002) ("Although couched in terms of contract' . . . to avoid the applicable statutes of limitation, the claims are directed at [the university's] academic and administrative decision . . ., which may be reviewed only in a CPLR article 78 proceeding. . . ." (citations omitted) (emphasis in original)); Byerly v. Ithica College, 290 F. Supp. 2d 301, 305 (N.D.NY 2003), aff'd, 133 Fed. Appx. 418 (2d Cir 2004) (holding that "claims based upon the rights or procedures found in college manuals, by-laws and handbooks may only be reviewed by way of an Article 78 proceeding in New York Supreme Court.").
Moreover, if the court were to consider the allegations as in the nature of an Article 78 proceeding, the proceeding would be untimely. An Article 78 proceeding ". . . must be commenced within four months after the determination to be reviewed becomes final and binding." CPLR § 217(1). See Sumpter v. New York City Hous. Authority, 260 AD2d 176, 177 (1st Dep't 1999); See also Torre v. Columbia Univ., 1998 U.S. Dist. LEXIS 10241, at *48 (S.D.NY July 8, 1998), aff'd 189 F.3d 462 (2d Cir. 1999). Here, it appears from the allegations in the Amended Complaint that the determination became binding at the end of the administrative process which occurred, at the latest, in the spring of 2003. Thus, the statute of limitations expired four months later. As this action was commenced, at the earliest, in March 2009, the breach of contract claim is untimely.
In fact, even if the court were to apply the six-year limitation period applicable to breach of contract claims (CPLR 213), the claim would be untimely, since the purported breach occurred on or before October 16, 2002, the day the dissertation was declared a failure by the Committee; and this action was commenced in March 2009, which is more than six years after the breach.
As the first cause of action is untimely, the court need not reach whether the allegations are sufficient to state a claim.
The second cause of action for discrimination is based on allegations that defendants discriminated against plaintiff based on race, and in particular, based on the topic of the dissertation that showed support for African Centered Schools, and that defendants did not apply the same procedures to his dissertation as to the dissertations of similarly situated white American students. Defendants argue that the discrimination claim should be dismissed as untimely and for failure to state a cause of action.
As a preliminary matter, insofar as plaintiff's discrimination claim challenges defendants' academic and administrative decisions in their capacity as trained educators and administrators, it should have been brought as an Article 78 proceeding and is governed by the four month statute of limitations. See CPLR 217; Gary, 48 AD3d at 236 ("In challenging the termination of her matriculation, along with allegations based on contract . . . and racial discrimination, the pro se plaintiff should have brought a proceeding under CPLR article 78, rather than this plenary action. . . ." (citations omitted) (emphasis in original)); Demas, 291 AD2d at 660 ("the claims are directed at [the university's] academic and administrative decision . . ., which may be reviewed only in a CPLR article 78 proceeding" (emphasis in original)). Since the alleged acts of discrimination occurred during the events leading up to and including October 16, 2002 rejection of plaintiff's oral dissertation defense, this action commenced more than six years after the challenged discrimination is untimely.
Moreover, assuming the three statute of limitations applicable discrimination claims governs, the claim would be time-barred since the alleged discrimination occurred in or about October 2002, and this action was not commenced until more than six years later. See Murphy v. American Home Prods., 58 NY2d 293, 307 (1983) ("The institution of civil actions to recover damages for unlawful discriminatory practices . . . is governed by [a] three-year period of limitations. . . ."); see also, Strassberg v. Hilton Hotels Corp., 2000 U.S. App. LEXIS 16255, at *2 (2d Cir. NY July 7, 2000) (discrimination "[c]laims under the NYS [Human Rights Law] and the NYC [Human Rights Law] must be filed within three years from the alleged act of discrimination"); Washington v. County of Rockland, 373 F.3d 310, 319 — 20 (2d Cir. NY 2004) ("When plaintiff[ ] filed [ ] suit . . . the three-year statute of limitations had elapsed, and the[ ] discrimination claims were therefore untimely.").
Accordingly, the court need not address whether the discrimination claim states a cause of action.
CONCLUSION
For the reasons stated above, it is
ORDERED the motion to dismiss by defendant Teachers College is granted; and it is further
ORDERED that the motion to dismiss by defendant Irving R. Hamer is granted; and it is further
ORDERED that the Clerk of the Court is directed to enter judgment dismissing the amended complaint in its entirety.