Kingston v Sophie Davis School of Biomedical Educ.

Kingston v Sophie Davis School of Biomedical Educ. 2011 NY Slip Op 01406 Decided on February 24, 2011 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on February 24, 2011
Mazzarelli, J.P., Friedman, Catterson, Manzanet-Daniels, Román, JJ.
4211 107425/09

[*1]Rolanda Kingston, Plaintiff-Appellant,

v

The Sophie Davis School of Biomedical Education, Defendant-Respondent.




Rolanda Kingston, appellant pro se.
Andrew M. Cuomo, Attorney General, New York (Carol Fischer
of counsel), for respondent.

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered October 16, 2009, dismissing the petition seeking reinstatement as a student, unanimously affirmed, without costs.

Petitioner failed to commence this proceeding within four months after she received notice of the denial of her final administrative appeal. Thus, the proceeding is time-barred (see CPLR 217[1]; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]).

Were we to consider the merits, we would find, that in light of petitioner's marginal academic record, respondent's determination not to reinstate her was not arbitrary or irrational (see Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408, 413-414 [1980]). Nor was the fact that she was not given proper instructions for the exam in question a basis for judicial intervention. Indeed, petitioner was given a
chance to qualify to take the subject exam again, but she failed the reassessment test.

THIS CONSTITUTES THE DECISION AND ORDER
OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: FEBRUARY 24, 2011

CLERK