Matter of Hendessi v New York Coll. of Osteopathic Medicine of NY Inst. of Tech.

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[*1] Matter of Hendessi v New York Coll. of Osteopathic Medicine of NY Inst. of Tech. 2012 NY Slip Op 51787(U) Decided on August 31, 2012 Supreme Court, New York County Stallman, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 31, 2012
Supreme Court, New York County

In the Matter of the Application of Daryoush Hendessi, Petitioner, For Judgment pursuant to Art. 78 CPLR, and Common Law Relief


New York College of Osteopathic Medicine of New York Institute Of Technology, Respondent.


For petitioner:

Stewart Lee Karlin, Esq.

9 Murray Street, Suite 4W

New York, NY 10007

Tel: (212) 732-9450

Fax: (212) 571-9893

For respondent:

Law Offices of Elan Raday

BY: Elan Raday, Esq.

676A Ninth Ave, Suite 301

New York, NY 10036

Tel: (212) 315-2502

Michael D. Stallman, J.

In this Article 78 proceeding, petitioner Daryoush Hendessi (Hendessi) challenges his dismissal from respondent medical school, resulting from his inability to pass a required licensing exam prior to the expiration of a six-month administrative leave. Petitioner challenges his dismissal, as well as respondent's application of a rule reducing, from 12 months to 6 months, [*2]the amount of administrative leave permitted to take the required exams, as arbitrary and capricious, in breach of an implied contract, and discriminatory.


Respondent New York College of Osteopathic Medicine (NYCOM) is the osteopathic medical college of New York Institute of Technology (NYIT), a private, non-profit college chartered by the Board of Regents of the State of New York. Petitioner Hendessi alleges that he was born in Iran, graduated from the medical school of Oran University in 1988, and that he practiced medicine as a physician in France prior to moving to the United States. Amended Verified Petition, ¶ 8. In 2005, petitioner enrolled in NYCOM's E migre Physician Program, a four-year program comprising two years of classes and two years of clinical rotations. Id., ¶¶ 3, 10.

In order to graduate from NYCOM, students were required, in addition to successfully completing academic courses and clinical work, to pass certain comprehensive licensing exams, known as COMLEX, administered by the National Board of Osteopathic Medical Examiners (NBOME). Students were required to pass the COMLEX Level I exam prior to beginning the fourth year of study. In the event that a student had not passed the Level I examination before entering the fourth year, the student was put on an administrative leave of absence to give the student additional time to pass the exam. See Student Handbooks, Exs. U, X to Verified Answer (Answer), § II (C). Students also were required to pass two COMLEX Level II exams, COMLEX Level II CE (comprehensive written exam) and COMLEX Level II PE (physical exam). As with the COMLEX Level I exam, if, prior to graduating, a student had not passed the Level II exams, the student was put on administrative leave to give the student more time to pass the exam and meet the requirement for graduation. See id.

In June 2008, after five unsuccessful attempts to pass the COMLEX Level I exam, petitioner was put on administrative leave and given one year, until June 2009, to pass the exam. See Letter dated June 26, 2008, Ex. D to Answer. Petitioner passed the COMLEX Level I exam in February 2009, and returned to NYCOM in July 2009. Petitioner subsequently completed his course work and his clinical clerkships, receiving mostly good or excellent evaluations for his clinical work. See Evaluations, Ex. 3 to Hendessi Aff. As of May 2010, however, despite making numerous attempts between August 2009 and May 2010, petitioner had not passed the COMLEX Level II exams, the remaining requirement to graduate. See NBOME Student History, Ex. C to Answer.

In May 2010, petitioner was notified by NYCOM that, because he had not yet passed the Level II exams, he was being placed on administrative leave. See Letter dated May 21, 2010, Ex. F to Answer. Pursuant to the terms of the 2009-2010 Student Handbook, he was granted six months of administrative leave, which allowed him to retain his eligibility to register for the COMLEX Level II exams. See Student Handbook 2009-2010, Ex. U to Answer, § II (C). On May 19, 2010, petitioner signed a COMLEX II leave of absence form, acknowledging that he had until November 19, 2010, to pass the exams and be reinstated to NYCOM. See Mandatory Administrative Leave of Absence, Ex. G to Answer. Petitioner now claims that he was coerced into signing this agreement by being told that he would be dismissed from the school and would not graduate if he did not sign it. Amended Petition, ¶ 22.

While on leave, petitioner took the COMLEX Level II CE exam in July 2010 and again [*3]did not get a passing grade. See NBOME Student History, Ex. C to Answer. He also took and again failed the COMLEX Level II PE exam in September 2010. Id. In July 2010, petitioner was informed by NBOME that, because he had taken the CE exam four times within twelve months, he was not eligible to take the CE exam again until after December 9, 2010. See E-mails, Ex. 5 to Hendessi Aff. With the assistance of Thomas Scandalis, Dean of NYCOM, petitioner applied to NBOME for a waiver of the annual limit on the number of times he could take the COMLEX exam, based on a newly diagnosed anxiety disorder. Dean Scandalis submitted a letter on petitioner's behalf to NBOME, requesting that petitioner be permitted to retake COMLEX Level II CE on September 27, 2010. See Letter dated Aug. 12, 2010, Ex. N to Answer. NBOME denied his request, however, and informed him that the earliest date on which he could retake the exam was February 18, 2011. See Letters, Ex. P to Answer. Because petitioner was accordingly unable, after July 2010, to retake the COMLEX Level II CE exam prior to November 19, 2010, his leave of absence expired without his completion of the COMLEX Level II exams, and, pursuant to the terms of the leave, he was dismissed from NYCOM's medical program. See Letter dated Nov. 19, 2010, Ex. H to Answer; Student Handbook 2009-2010, Ex. U to Answer, § II (C); Mandatory Administrative Leave of Absence, Ex. G to Answer.

The instant proceeding was commenced in February 2011. Petitioner seeks reinstatement to NYCOM's medical program, a declaration that respondent's actions were arbitrary and capricious and discriminatory, and damages, including reimbursement of tuition and "special damages for a lost career." Amended Petition, at 11.

Petitioner does not dispute or challenge NYCOM's policy of requiring a student to take an administrative leave of absence in the event that the student has not passed COMLEX Level II exams prior to graduation. Petitioner contends, however, that respondent acted arbitrarily and capriciously when it dismissed him after "retroactively" applying the 6-month leave requirement included in the 2009-2010 handbook, instead of the rule in effect at the time of his enrollment. See Petitioner's Memorandum of Law in Support of Petition, at 6. Petitioner further contends that NYCOM altered the terms of its implied contract with petitioner, by reducing, "at the last moment," the time that he had to pass the COMLEX II exams, "which directly impacted his ability to graduate and practice medicine." Amended Petition, ¶¶ 28-30. In addition, petitioner alleges that he was treated differently than another student who was enrolled at the same time as petitioner and was permitted to take a 12-month leave. Id., ¶ 24; Hendessi Aff., ¶ 13.


In general, "[c]ourts retain a restricted role' in dealing with and reviewing controversies involving colleges and universities." Maas v Cornell Univ., 94 NY2d 87, 92 (1999). "Strong policy considerations militate against the intervention of courts in controversies relating to an educational institution's judgment of a student's academic performance." Matter of Susan M. v New York Law School, 76 NY2d 241, 245 (1990) (citations omitted); see Matter of Olsson v Board of Higher Educ. of City of NY, 49 NY2d 408, 413 (1980); Tedeschi v Wagner College, 49 NY2d 652, 658 (1980). As the Court of Appeals has explained, "[i]n order for society to be able to have complete confidence in the credentials dispensed by academic institutions, ... it is essential that the decisions surrounding the issuance of these credentials be left to the sound judgment of the professional educators who monitor the progress of their students on a regular [*4]basis." Matter of Olsson, 49 NY2d at 413; see Maas, 94 NY2d at 92; Matter of Susan M., 76 NY2d at 245-246; Matter of McIntosh v Borough of Manhattan Community Coll., 78 AD2d 839, 839 (1st Dept 1980), affd 55 NY2d 913 (1982); Keles v Trustees of Columbia Univ. in City of NY, 74 AD3d 435, 435 (1st Dept 2010). Simply put, "[c]ourts do not intervene to require institutions to confer diplomas on those who have been deemed to be unqualified.'" Rosenthal v New York Univ., 2012 WL 1700843, *1, 2012 US App LEXIS 9817, *3 (2d Cir 2012), quoting Matter of Olsson, 49 NY2d at 413.

Thus, while "the determinations of educational institutions as to the academic performance of their students are not completely beyond the scope of judicial review, that review is limited to the question of whether the challenged determination was arbitrary and capricious, irrational, made in bad faith or contrary to the Constitution or statute." Matter of Susan M., 76 NY2d at 246; see Keles, 74 AD3d at 435; Matter of De Jong v Kings County Hosp. Ctr., 27 AD3d 398 (1st Dept 2006). "Arbitrary action is without sound basis in reason and is generally taken without regard to the facts." Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaroneck, Westchester County, 34 NY2d 222, 231 (1974); see Allawi v State Univ. of NY at Stony Brook, 2002 WL 31748836, *1, 2002 NY Misc LEXIS 1546, *5 (Sup Ct, Suffolk County 2002). A petitioner has the burden of demonstrating that the determination was irrational or made in bad faith or for an impermissible reason. See Matter of Che Lin Tsao v Kelly, 28 AD3d 320, 321 (1st Dept 2006); Matter of Baptiste v City Univ. of NY, 2010 WL 4155279, 2010 NY Misc LEXIS 5020, *10 (Sup Ct, NY County 2010).

Further, although courts have recognized that "there is an implied contract between the student and the university that, if he complies with the terms prescribed by the university, he will obtain the degree which he sought" (Matter of Carr v St. John's Univ., 17 AD2d 632, 633 [2d Dept 1962], affd 12 NY2d 802 [1962]; see Downey v Schneider, 23 AD3d 514, 516 [2d Dept 2005]), "courts reviewing such contracts must tread carefully ... [and] in reviewing universities' decisions regarding academic credentialing, courts must defer to the university's effort to substantially observe the rules, regulations, and procedures it has announced in advance, and will disturb their decisions only if their actions are arbitrary, irrational, or in bad faith." Rosenthal, 2012 WL 1700843, at *1-2, 2012 US App LEXIS 9817, at *3-4; see Gertler v Goodgold, 107 AD2d 481, 486 (1st Dept 1985), affd 66 NY2d 946 (1985). " Plainly, [courts] may not override [such decisions] unless [there] is such a substantial departure from accepted academic norms as to demonstrate that the person or committee responsible did not actually exercise professional judgment.'" Flomenbaum v New York Univ., 71 AD3d 80, 86 (1st Dept 2009), affd 14 NY3d 901 (2010), quoting Regents of Univ. of Mich. v Ewing, 474 US 214, 225 (1985); see Matter of Kickertz v New York Univ., 30 Misc 3d 1220(A), *4 (Sup Ct, NY County 2011).

Applying the above standards to the facts of this case, the court finds that Hendessi has not demonstrated that his dismissal from NYCOM was arbitrary and capricious, without rational basis, or discriminatory. There is no showing that respondent failed to comply with its rules in dismissing him, or that the rules pertaining to COMLEX administrative leave, or the changes in the rules, were arbitrary and capricious, or applied to him in any discriminatory manner. The affidavit of Mary Ann Achtziger, Associate Dean of NYCOM, submitted in opposition to the petition, sets forth sufficient evidence that NYCOM's decision to dismiss petitioner, based on its consideration of petitioner's overall academic performance, involved a proper exercise of its [*5]discretionary judgment, and had a rational basis. See Matter of Patti Ann H. v New York Med. Coll., 88 AD2d 296, 301 (2d Dept 1982), affd 58 NY2d 734; Matter of Gilbert v State Univ. of NY at Stony Brook, 73 AD3d 774 (2d Dept 2010).

It is not disputed that NYCOM followed the rules and procedures for COMLEX Level II administrative leave set forth in the 2009-2010 Student Handbook, including the requirement that a student going on leave complete and sign a leave form, and that these rules were in effect for more than 10 months prior to the granting of petitioner's COMLEX II administrative leave. See Student Handbook 2009-2010, Ex. U to Answer, § II (C). Petitioner argues, however, that the amended 2009-2010 rules were arbitrarily and capriciously applied to him, when the rules in effect when he first enrolled should have been applied.

The 2005-2006 Student Handbook did not include a time limitation for COMLEX administrative leave. Answer, ¶ 10; see Student Handbook 2005-2006, Ex. B to Answer. The 2007-2008 Student Handbook amended the prior handbook to provide that COMLEX II administrative leave could not exceed 12 months. See Student Handbook 2007-2008, Ex. X to Answer, § II (C). The 2009-2010 Student Handbook, in effect at the time that petitioner was required to go on COMLEX II administrative leave, further limited the leave to 180 days. See Student Handbook 2009-2010, Ex. U to Answer, § II (C). Although petitioner does not argue that he should have been permitted unrestricted leave, as allowed in the 2005-2006 handbook, he contends that he should have been allowed 12 months, as provided in the 2007-2008 Student Handbook.

The terms of the implied contract between a student and a university "are set forth, for the most part, in the institutions's catalogue and other publications." Downey, 23 AD3d at 516; see Vought v Teachers Coll., Columbia Univ., 127 AD2d 654, 654-655 (2d Dept 1987). Contrary, however, to petitioner's argument that it was arbitrary and capricious, and a breach of implied contract, to subject him to the rules in the 2009-2010 handbook, he was a student enrolled during the 2009-2010 school year, who repeatedly took the COMLEX Level II exams from August 2009 through May 2010, and the 2009-2010 handbook properly applied to him. See Keles v New York Univ., 1994 WL 119525, *6, 1994 US Dist LEXIS 4202, *18-19 (SD NY 1994), affd 54 F 3d 766 (2d Cir 1995), cert denied 516 US 943 (1995) (1986-1988 Bulletin, reducing number of times a candidate could sit for qualifying exam from three, as set out in 1984-1986 Bulletin, to two, applied to plaintiff because, despite completing coursework prior to amendment, he continued to take qualifying exams in 1986-1988). Thus, petitioner's argument that he should only have been subjected to the rules in prior handbooks is unavailing. See Matter of Kickertz, 30 Misc 3d 1220(A), at *4 ("reliance on outdated set of rules is misplaced").

Moreover, courts have held that "[i]mplicit in a university's general contract with its students is a right to change the academic degree requirements, provided that such changes are not arbitrary and capricious." Babiker v Ross Univ. Sch. of Med., 2000 WL 666342, *6, 2000 US Dist LEXIS 6921, *22 (SD NY 2000), affd 86 Fed Appx 457 (2d Cir 2004); see Owens v Parrinello, 365 F Supp 2d 353, 358 (WD NY 2005) (a change in graduation requirements does not amount to a breach of the implied contract); Keles, 1994 WL 119525, at *6, 1994 US Dist LEXIS 4202, at *19 (university could change regulations for matriculation without breaching its contract). That is so especially where, as here, students are advised that the rules contained in the student handbooks are "subject to change when it is deemed necessary and acted on by the [*6]Council of Deans," and students are directed to check the school's website frequently for changes. See Student Handbooks, Exs. B, U, X to Answer; Keles, 1994 WL 119525, at *6, 1994 US Dist LEXIS 4202, at *19. Moreover, there is no evidence here to suggest that the change in the administrative leave limits was aimed solely at petitioner. Compare Downey, 23 AD3d at 516.

Petitioner's argument that he was coerced into signing the COMLEX II leave form, by being told that he would otherwise not graduate, also is unavailing. Even assuming arguendo that he was told he would not graduate without taking leave to pass the COMLEX II exams, that requirement was included in all of the student handbooks, and petitioner does not allege that he was unaware of that requirement. Petitioner cannot show, therefore, that he "was entitled to be free" of the requirement to take leave in order to pass exams required for graduation (Kazaras v Manufacturers Trust Co., 4 AD2d 227, 237 [1st Dept 1957], affd 4 NY2d 930 [1958]; see Gerstein v 532 Broad Hollow Rd. Co., 75 AD2d 292, 297 [1st Dept 1980]), or that he consented to taking leave under a wrongful threat, or against his free will, or based on fraudulent statements. See Matter of Sarah K., 66 NY2d 223, 242 (1985); Fred Ehrlich, P.C. v Tullo, 274 AD2d 303, 304 (1st Dept 2000); Gerstein, 75 AD2d at 297.

As courts have noted, "although it may be unfortunate to spend years studying a discipline only to discover that one's capabilities do not pass academic muster'" (Keles, 1994 WL 119525, at *7, 1994 US Dist LEXIS 4202, at *23 [internal citation omitted]), there is nothing arbitrary about requiring "a general comprehensive examination to determine whether or not a student is properly qualified [for a degree]." Id. Similarly, there is nothing arbitrary in establishing procedures for COMLEX II administrative leave, which, as set out in the student handbooks, is intended to give students additional time to meet the graduation requirement to pass the exams. Petitioner was familiar with the procedures, including the need to sign a request for leave, as he signed a COMLEX I leave request form two years earlier, apparently without objection, and he does not claim that he did not know what he was signing when he submitted the leave request form.

With respect to petitioner's claim that he was discriminated against based on his national origin, petitioner's sole allegations in support of this claim are that a classmate named Ben Chen received a year-long leave, and that, based on petitioner's own observations about his graduating class, more "minority" students failed to graduate than "Caucasian" students. However, in her affidavit in opposition to the petition, Associate Dean Achtziger attests, with supporting documentation, that there is no record that a student named Ben Chen was ever enrolled at NYCOM, and that since the implementation of the 180-day limit on COMLEX II leave, no student has ever been asked to sign a document retroactively changing the limit on leave from 12 months to 6 months. Achtziger Aff., ¶¶ 34-37. Petitioner offers nothing to refute respondent's evidence and does not show, in any event, that he and the student who allegedly received additional time were similarly situated. By his own acknowledgment, the other student passed his exam within six months. Hendessi Aff., ¶ 13.

Further, petitioner's vague and conclusory allegation that, based on his personal recollection, there was a great discrepancy in graduation rates from the E migre Physician Program between the "minority" students and the "Caucasian" students, is unsupported by any [*7]evidence and is completely insufficient to sustain a discrimination claim under the New York City Human Rights Law (Administrative Code of the City of New York § 8-107 et seq.). See Gary v New York Univ., 48 AD3d 235, 236 (1st Dept 2008); Ochei v Helene Fuld. Coll. of Nursing of N. Gen. Hosp., 22 AD3d 222 (1st Dept 2005); Moukarzel v Montefiore Med. Ctr., 235 AD2d 239, 240 (1st Dept 1997); Babiker, 2000 WL 666342, at *5, 2000 US Dist LEXIS 6921, at *20. The court has considered petitioner's remaining arguments and finds them without merit.

To the extent that respondent seeks summary judgment on its counterclaims, or, alternatively, severance of them, that application is granted in part, to the extent that the counterclaims will be severed and shall continue as a plenary action; the application is otherwise denied without prejudice to a later, timely motion for summary judgment. Without reaching the merits of the counterclaims, the claims and relief sought by respondent are unrelated to the propriety of respondent's dismissal of petitioner, and are properly severed. See CPLR 407; District Council No. 9, Intl. Brotherhood of Painters & Allied Trades v Metropolitan Transp. Auth., 115 Misc 2d 810, 812 (Sup Ct, NY County 1982), affd 92 AD2d 791 (1st Dept 1983); Rattner v Planning Commn. of Pleasantville, 156 AD2d 521, 528 (2d Dept 1989); McNamara v Commissioner of Educ., NY State Educ. Dept., 80 AD2d 660, 661 (3d Dept 1981); Nodine v Board of Trustees of Vil. of Baldwinsville, 44 AD3d 764, 764-765 (4th Dept 1974).

Accordingly, it is

ORDERED and ADJUDGED that the petition is denied and the proceeding is dismissed, with costs and disbursements to respondent, as taxed by the Clerk; and it is further

ORDERED that the counterclaims are severed and shall continue as an action under the same index number and the existing pleadings, unless the Justice to be assigned orders otherwise; and it is further

ORDERED that the action is transferred to the Trial Support Office for reassignment to a General IAS Part. Respondent is directed to serve a copy of this order on all parties and the Trial Support Office (60 Centre St., Room 119).

Dated: August 31, 2012

New York, New York