The following papers, numbered 1 - 4 were considered on the motion to dismiss:

PAPERSNUMBERED

Notice of Motion/Order to Show Cause, — Affidavits — Exhibits1, 2

(Memorandum of Law)

Answering Affidavits — Exhibits _______________________________3

Replying Affidavits(Memorandum of Law)4

Plaintiff applied for but was not accepted into defendants' orthodontics residency program in December 2009. Plaintiff subsequently applied for such program again in July 2010, but was informed, in December 2010, that he was not accepted. Plaintiff alleges that he was discriminated against, as two (2) less qualified international students were accepted into the program, yet he was not. Plaintiff further alleges that he was discriminated against based upon an incident, in November 2009, when another student expressed concern to defendants about an email message in Plaintiff's inbox, which was displayed on a projector during a class. As a result of the complaint, a faculty member of defendant New York University conducted an investigation by interviewing Plaintiff, and determined that the email message was innocuous.

Defendants now move to dismiss this action alleging that Plaintiff is challenging an administrative determination, which must be done in the context of an Article 78 proceeding, filed within four (4) months from such determination and is, thus, time-[*2]barred. Plaintiff argues in opposition that his claims for monetary relief/damages, asserted under the New York State Human Rights Law and the New York City Human Rights Law is not cognizable under Article 78.

The Appellate Division, First Department, has held that a plenary complaint, "while couched in terms of unlawful discrimination . . . is in fact a challenge to a university's academic and administrative decisions and thus is barred by the four-month statute of limitations for a CPLR article 78 proceeding, the appropriate vehicle for such a challenge." Padiyar v Albert Einstein College of Medicine of Yeshiva University, 73 AD3d 634, 635 (1st Dept 2010). Further, the Court of Appeals has clearly stated that "[c]ourts retain a restricted role' in dealing with and reviewing controversies involving colleges and universities. . . . Thus, a CPLR article 78 proceeding is the route for judicial review of such matters, not a plenary action. Notably, when litigants fail to avail themselves of the CPLR article 78 avenue, courts may justifiably dismiss plenary claims." Maas v Cornell University, 94 NY2d 87, 92 (1999).

Here, the complaint is clear that the alleged discrimination complained of by Plaintiff is a challenge to Defendants' administrative investigation of a complaint made by a student, and Plaintiff's failure to obtain admittance to defendant New York University's orthodontics residency program. Thus, while Plaintiff seeks monetary damages for alleged discrimination, Plaintiff is, in fact, challenging, Defendants' administrative decisions. It is undisputed that Defendants' administrative decisions were made in 2009 and 2010. As Plaintiff failed to commence this action until November 2012, it is time-barred by the four-month applicable statute of limitations, pursuant to CPLR § 217(1). As such, defendants' motion to dismiss is granted, and the complaint dismissed.

Accordingly, it is

ORDERED that Defendants' motion is granted and the action is dismissed; and it is further

ORDERED that within 30 days of entry of this order, Defendants shall serve Plaintiff a copy of this decision and order, together with notice of entry; and it is further

ORDERED that upon proof of service of a copy of this order upon Plaintiff, with notice of entry, the Clerk of the Court shall enter a judgment of dismissal in Defendant's favor, with costs and disbursements.

This constitutes the Decision and Order of the Court.

Dated:February 19, 2014

DORIS LING-COHAN, J.S.C. [*3]

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