Article 78 – Can the Respondent’s Answer be Bypassed?

Matter of Kickertz v New York Univ.,

___ NY3d ___, 2015 NY Slip Op 02800

In an Article 78 proceeding, if the respondent raises objections in point of law by pre-answer motion, and the motion is denied, “the court shall permit the respondent to answer”. (CPLR 7804 [f]) Despite the mandatory language there is an exception, recognized in Matter of Nassau BOCES Cent. Council of Teachers v Board of Coop. Educ. Servs. of Nassau County, 63 N.Y.2d 100 [1984], which allows the answer to be bypassed where the facts are so fully developed in the parties’ presentations as to be undisputed, and where there will be no prejudice from taking the shortcut. In BOCES, for example, the objection in point of law had been to standing, and while the papers developed the facts they did not clearly rule out triable issues. An answer was therefore required before the merits could be ruled on.

Here, both Supreme Court and the Appellate Division majority found the facts sufficiently developed to allow decisions on the merits without an answer. They then reached opposite conclusions on those merits. The Court of Appeals, however, found the facts sufficiently in doubt as to disallow the procedural shortcut, vacated the judgment and directed the service of an answer by the respondent.

Petitioner was a student at NYU’s College of Dentistry. The underlying dispute was whether NYU had complied with its own procedures in finding that the petitioner had falsified records in a required dental clinic, in order to generate enough Practice Model Values (PMV) credits to graduate. The penalty imposed was dismissal from the College, without the possibility of reinstatement. It bears noting that NYU had not notified the petitioner that there was any problem with her status until the night before graduation, and that she was only made aware of the specific shortfall in her PMV credits some 15 minutes before graduation. To get to that point she had spent seven years and several hundreds of thousands of dollars. The falsification of records which brought her to this pass was in response, and was a single, isolated incident. Her petition sought reinstatement, a direction to the College to grant her degree, and attorney’s fees.

The precise objection in point of law was unspecified in the opinions of the trial court, Appellate Division or Court of Appeals, but appears to have been simply that the petitioner had no valid claim. There were issues as to which of two codes of ethics applied, whether NYU had complied with its own procedures under the applicable code, and whether the penalty of dismissal from the college without the possibility of reinstatement was shocking to the conscience.

In any event, Supreme Court addressed the merits, granted NYU’s motion and dismissed the petition. Supreme Court found that NYU had chosen the applicable code of ethics, had substantially complied with its own procedures, and that while the resulting penalty was “indeed quite awful”, it was not so awful as to shock the conscience.

The Appellate Division majority also addressed the merits, reversed Supreme Court, denied the motion and granted the petition. The Appellate Division majority found that NYU had failed to comply with its own procedures under either code, and that the penalty was so disproportionate to the offense as to be shocking to the conscience. The majority opinion recognized the rule requiring an answer, but held that the facts were so completely developed that there was no need for an answer. There was a two-judge dissent, which also would have reversed, but would have limited appellate relief to a remand to allow the respondent to answer.

The issue in the Court of Appeals was whether the Appellate Division had erred in considering the merits after denying the motion to dismiss. The Court of Appeals held that it had, finding triable issues as to whether NYU had complied with its own procedures. That was sufficient to rule out the procedural shortcut and to allow NYU to serve an answer. The matter was therefore remitted to Supreme Court.