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SCAJ SHORT FORM ORDER SUPREME COURT - STATE of NEW YORK Present: HON

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SCAJ SHORT FORM ORDER SUPREME COURT - STATE of NEW YORK Present: HON ........................................ ). SCAJ SHORT FORM ORDER SUPREME COURT - STATE OF NEW YORK Present: HON. UTE WOLFF LALLY. Justice TRIAL/lAS, PART 6 NASSAU COUNTY SHAWN SWIFT, Plaintiff (s) , MOTION DATE: 10/22/08 INDEX No. : 11408/08 -against- MOTION SEQUENCE NO: 1 X X X LONG ISLAND UNIVERSITY, Defendant (s) . The following papers read on this motion: Notice of Motion/ Order to Show Cause. Answering Affidavits. Replying Affidavits. 8 - lOA Br i e f s : Upon the foregoing papers, it is ordered that this motion by defendant for an order pursuant to CPLR 3211(a) (1) (5)and (7) dismissing plaintiff' s complaint is granted. This is an action which arises from an alleged breach of an implied contract between the plaintiff and the defendant school. The plaintiff enrolled in Long Island University s (herein after LIU" ) Master of Social Work (herein after U MSW" ) program in or about July 2004. The first in a series of letters were signed by the plaintiff confirming that he would be an Emergency Medical Technician (herein after U EMT" ) for the Fall 2004 term and in exchange he would receive a stipend and tui tion remission and fees, 11 equivalent to graduate credits. The plaintiff signed subsequent letters in the Spring and Fall of 2005 and Spring of 2006 for services and tuition remission. The MSW program at LIU is a two year, four semester social work degree program. In addition to the sixty (60) academic credi ts required, students are expected to complete two hundred (200) hours in a social work field in each of the first year semesters and three hundred (300) hours in each of the semesters the second year, for a total of one thousand (1000) hours. The plaintiff completed his first year internship at North Shore Long Island Jewish Health System Glen Cove Hospital (" LIJII At the Swift v LIU - 2 - Index No . 11408/08 start of his second year, the plaintiff secured an internship where he would be assigned tasks pertinent to social work at Samuel Field YM & YMHA (herein after " Samuel Fieldll ) in Little Neck. During this time, his supervisor from LIJ offered him a job related to social work, contingent upon his completion of the LIU program. During the internship at Samuel Field, the plaintiff expressed dissatisfaction with the type of work duties he was assigned, as well as dissatisfaction with his supervisor. The plaintiff alleges that his supervisor assigned him work duties not relevant to the MSW program and berated and abused him. In Spring 2006, the plaintiff, dissatisfied wi th his work experience at Samuel Field, requested his LIU supervisor change his internship location. The plaintiff was advised that at this point in the semester, transfer was not possible. However, the plaintiff was permi t ted to walk for graduation in May 2006 and received an unofficial diploma. On or about June 20, 2006, the plaintiff was notified that he would be receiving a grade of FII for his internship, and was subsequently terminated from the MSW program. The plaintiff appealed his grade to the Academic Standing Committee of the C. W. Post Campus of LIU. The Committee informed the plaintiff that they only handle undergraduate grade disputes, and that the chair of the Social Work Department would be the appropriate person to contact. The plaintiff then contacted Dr. Nathanson, the chair of the Social Work Department. After appealing his grade to various channels of LIU, the defendant' s remedies were allegedly exhausted and he did not pursue this matter until March 2007. Plaintiff' s most recent chance to appeal his grade was granted by the chair of the department on November 7, 2007. The plaintiff alleges that there was a breach of an implied contract, but fails to state the terms of the contract. The plaintiff cites a series of cases which state that an implied contract exists between a student and an educational institution and as long as a student complies with the terms prescribed by the university, he would obtain the degree he seeks (Maas v. Cornell University, 94 Y. 2d 87; Vought v. Teachers College Columbia University, 127 A. D. 2d 654). However, a degree is not promised merely because a student began a course of study (Vought v. Teachers College Columia Universi ty, supra). The implied employment contract that exists between LIU and the plaintiff is for tuition remission for services of an EMT and imposes no duty upon LIU to grant plaintiff a Masters degree in social work. The plaintiff' s enrollment in the MSW program at LIU does not automatically enti tIe him to a degree in social work (Vought v. Teachers College Columbia University, supra). He must Swift v LIU - 3 - Index No. 11408/08 comply with the rules and regulations of the institution and program of which he is enrolled in. In essence, the plaintiff' complaint asks the court to review the decision reached by the staff of LIU after all institutional remedies were exhausted. The plaintiff has failed to properly plead this cause of action, and should have instead initiated an Article 78 proceeding (Gary v. New York University, 48 D. 3d 235). Assuming arguendo that November 7, 2007 was the date of termination, the statute of limitations has long since run for an Article 78 proceeding (CPLR 217) . The statute of limitations cannot be circumvented by couching administrative grievances as a violation of a contract right u devoid of any reference to the contractual basis for the right asserted" (Gary v. New York University, supra; Vought Teachers College Columbia University, supra). Without a showing of bad faith or violation of a constitutional right or statute, it is improper for the court to make a substantive evaluation of a student' s academic capabilities in place for the judgment of the educational institution (In the matte of Susan M. v. New York Law School, 76 N. Y. 2d 241; Carr v. St. Johns University of New York, 17 D. 2d 632). To do so, u would inappropriately involve the courts in the very core of academic and educational decisionsll (In the Matter of Susan M. v. New York Law School, supra). Accordingly, the defendant I s motion to dismiss the complaint is granted. Da ted: DEe tJ ENTERED DEC 2 3 2008 NASSAU COUNTY COUNT CLERK'S OFFICE swift.
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