GARY v. NEW YORK UNIVERSITY (2008)

Order, Supreme Court, New York County (Marylin G. Diamond, J.), entered August 15, 2006, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

In challenging the termination of her matriculation, along with allegations based on contract, tort and racial discrimination, the pro se plaintiff should have brought a proceeding under CPLR article 78, rather than this plenary action (see Maas v. Cornell Univ., 94 N.Y.2d 87, 92, 699 N.Y.S.2d 716, 721 N.E.2d 966 [1999];  Bottalico v. Adelphi Univ., 299 A.D.2d 443, 749 N.Y.S.2d 734 [2002] ).   The court improperly determined that plaintiff's challenge to her termination was time-barred, since the action was timely commenced within four months after defendants had notified her by letter of their final and binding determination (CPLR 217[1] );  however, it properly dismissed the challenge as beyond judicial review (see Matter of Susan M. v. New York Law School, 76 N.Y.2d 241, 246, 557 N.Y.S.2d 297, 556 N.E.2d 1104 [1990] ).

 Plaintiff failed to raise an issue of fact as to her cause of action for breach of contract.   There is no indication that defendants failed to comply with their policies and procedures regarding termination (see Benson v. Trustees of Columbia Univ. in City of N.Y., 215 A.D.2d 255, 626 N.Y.S.2d 495 [1995], lv. denied 87 N.Y.2d 808, 641 N.Y.S.2d 830, 664 N.E.2d 896 [1996] ).

 The negligence claims of purported failure to provide adequate guidance or to allow plaintiff to register for classes were barred by her failure to exhaust administrative remedies (see Gertler v. Goodgold, 107 A.D.2d 481, 489, 487 N.Y.S.2d 565 [1985], affd. 66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748 [1985] ).   In any event, such claims are time-barred since the alleged inactions occurred more than four months prior to the commencement date of this action (see Quintas v. Pace Univ., 23 A.D.3d 246, 804 N.Y.S.2d 67 [2005] ).

 We reject plaintiff's request for leave to establish a prima facie case of racial discrimination or a cause of action for intentional infliction of emotional distress.   Plaintiff failed to submit any evidence warranting an inference of such discrimination on the part of the university or any of its employees (see Bayon v. State Univ. of N.Y. at Buffalo, 2004 U.S. Dist. LEXIS 5036, *12, 2004 WL 625133, *2 [W.D.N.Y.] ).   Furthermore, the claim for intentional infliction of emotional distress, based on comments made by the faculty prior to plaintiff's recommended termination in March 2003, was barred by the one-year statute of limitations (Kourkoumelis v. Arnel, 238 A.D.2d 313, 655 N.Y.S.2d 653 [1997] ).   In any event, the faculty's conduct and comments regarding plaintiff's academic performance were not so extreme or “outrageous” as to constitute intentional infliction of emotional distress (see Sheridan v. Trustees of Columbia Univ. in City of N.Y., 296 A.D.2d 314, 315, 745 N.Y.S.2d 18 [2002], lv. denied 99 N.Y.2d 505, 755 N.Y.S.2d 711, 785 N.E.2d 733 [2003], cert. denied 539 U.S. 904, 123 S.Ct. 2253, 156 L.Ed.2d 112 [2003] ).

We have considered plaintiff's remaining arguments and find them without merit.