MURY v. FASHION INSTITUTE OF TECHNOLOGY (2026)

Judgment, Supreme Court, New York County (Lyle E. Frank, J.), entered November 24, 2024, denying the petition to annul the determination of respondent, The Fashion Institute of Technology (FIT), dated March 22, 2024, which dismissed petitioner from the position of residential assistant, denying petitioner's motion to consolidate the proceeding with a later-filed plenary action, and dismissing the proceeding brought pursuant to CPLR article 78, unanimously affirmed, without costs.  Order, same court and Justice, entered November 18, 2024, which granted FIT's motion pursuant to CPLR 3211(a)(4) to dismiss the complaint in the plenary action as duplicative of the prior pending article 78 proceeding, unanimously affirmed, without costs.

The court providently exercised its discretion in dismissing petitioner's later-filed plenary action, which was between the same parties and arose from the same facts, and declining to consolidate it with the article 78 proceeding (see CPLR 602[a], 3211[a][4] ). Contrary to petitioner's contention, the article 78 proceeding was an appropriate forum for her challenge to FIT's determination.  Because her claims in the plenary action asserting entitlement to damages based on FIT's alleged violation of the First Amendment and its duty to adhere to its own policies were, “in essence, a challenge to the determination to [dismiss] her, she was only entitled to article 78 review, and the filing of the article 78 proceeding mandated the dismissal of the plenary action” (Kickertz v New York Univ., 110 AD3d 268, 272 [1st Dept 2013][internal citations omitted];  see Rutkoski v New York Univ., 235 AD3d 602, 602 [1st Dept 2025] ).

Petitioner is correct that consolidation of matters between the same parties concerning the same subject matter is generally preferable to dismissal (see MediaAmerica, Inc. v Rudnick, 156 AD2d 174, 174 [1st Dept 1989] ), and that dismissal is not warranted where the two actions seek different relief (see Matter of Living Real Estate Group, LLC v Douglas Elliman, LLC, 220 AD3d 573, 574 [1st Dept 2023] ).

However, in the unique context of student disciplinary determinations, “case law reflects the policy that the administrative decisions of educational institutions involve the exercise of highly specialized professional judgment, and these institutions are, for the most part, better suited to make relatively final decisions concerning wholly internal matters” (Maas v Cornell Univ., 94 NY2d 87, 92 [1999] ).  Thus, in such cases only the limited judicial review available in article 78 proceedings is warranted (id.).  Plenary claims for damages alongside the article 78 proceeding are available only if, unlike here, “the gravamen of [the] causes of action is not a challenge to the [disciplinary] decision ․ and is not duplicative of the petition's allegations” (Kickertz, 110 AD3d at 272).

Petitioner's appeal presents no reason to disturb the court's denial of her petition on the merits.  Contrary to petitioner's contentions, the article 78 framework does not prevent courts from applying the correct level of scrutiny to First Amendment challenges to government actions, which article 78 courts routinely adjudicate (see e.g. Matter of Rogers v New York City Tr. Auth., 89 NY2d 692, 698 [1997];  Matter of Whitfield v City of New York Admin. for Children's Servs., 199 AD3d 548, 549 [1st Dept 2021], lv denied 38 NY3d 911 [2022];  Shaya–Castro v New York City Police Dept., 233 AD2d 233, 233 [1st Dept 1996] ).  Petitioner objects that the court denied the petition on the pleadings, but she did not avail herself of the opportunity to submit any “affidavits or other written proof” (CPLR 7804[d] ), relying instead exclusively on her own verified petition.

Petitioner's briefs on appeal raise no arguments as to the merits of her claims that FIT's determination was arbitrary and capricious and violated the First Amendment;  those claims are therefore “deemed abandoned” (Madison Sullivan Partners LLC v PMG Sullivan St., LLC, 173 AD3d 437, 438 [1st Dept 2019] ).

We have considered petitioner's remaining arguments and find them unavailing.