Lipton v. New York University College of Dentistry

865 F. Supp. 2d 403, 2012 WL 896210, 2012 U.S. Dist. LEXIS 36151
CourtDistrict Court, S.D. New York
DecidedMarch 16, 2012
DocketNo. 11 Civ. 2535 (TPG)
StatusPublished
Cited by3 cases

This text of 865 F. Supp. 2d 403 (Lipton v. New York University College of Dentistry) is published on Counsel Stack Legal Research, covering District Court, S.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Lipton v. New York University College of Dentistry, 865 F. Supp. 2d 403, 2012 WL 896210, 2012 U.S. Dist. LEXIS 36151 (S.D.N.Y. 2012).

Opinion

OPINION

THOMAS P. GRIESA, District Judge.

Plaintiff Herrick Lipton brings this action against defendants New York University College of Dentistry (“NYUCD”) and Dr. Andrew Spielman, its associate dean for academic affairs, for alleged violations of federal, -state, and local laws banning discrimination against disabled individuals.

Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss the federal counts for failure to state a claim. Should the court grant this motion, defendants further move to dismiss the remaining state law claims for lack of subject matter jurisdiction. Both motions are granted.

The Complaint

The following facts are drawn from the complaint and assumed to be true for purposes of this motion.

Plaintiff entered NYUCD’s predoctoral dentistry program (“DDS program”) in August of 2000. Had plaintiff completed the program on schedule, he would have graduated in 2004. However, plaintiff was unable to successfully complete his first academic year, which plaintiff alleges was the result of his father’s terminal illness. Plaintiff was then dismissed from the DDS program, but he successfully appealed this decision and completed the first-year curriculum on his second attempt in June 2002. Thereafter, he completed the second year of the curriculum on his first attempt in June 2003.

In July 2003, plaintiff took Part I of the National Board Dental Examination (“NBDEP1”) to fulfill a degree requirement for NYUCD. Unfortunately, he failed some sections of the test and was required to retake them. In the meantime, he began his third academic year at NYUCD in August 2003.

[405]*405During that year, plaintiff prepared to retake the NBDEP 1. He also participated in clinical work, for which he earned praise and high marks from his supervising professors. However, plaintiff failed the NBDEP 1 on his second attempt.

Plaintiff began his fourth academic year at NYUCD in August 2004. In May 2005, plaintiff underwent a neuropsychiatric evaluation, as a result of which, according to complaint ¶ 27:

Plaintiff was diagnosed with a learning disability, specifically a reading disorder which hindered his ability to accurately read and comprehend information under time constraints. The evaluation noted that Plaintiff suffered from anxiety and apprehension such that he would be unable to pass the exam under the normal time constraints. The disability (which was exacerbated by time constraints) placed Plaintiff at a disadvantage in successfully completing the test. The evaluation recommended for Plaintiff to receive additional time to alleviate the stress and anxiety of the exam, which would serve to equalize him with the other candidates sitting for the exam.

The complaint (¶ 28) goes on to allege that, after requesting an accommodation from test administrators:

Plaintiff, with the accommodation, immediately passed all parts of NBDEP 1 with a time-and-a-half accommodation following the conclusion of his fourth academic year.

It also appears that plaintiff was afforded this same time-and-a-half accommodation when he took all the tests which are relevant to the present case.1

During plaintiffs fourth academic year, he was also required to take the North East Regional Board of Dental Examiners exam (“NERB”), which he passed. Having completed the academic coursework of the DDS program, plaintiff participated in its graduation ceremony on May 12, 2005.

Plaintiff, however, had not yet completed all of the requirements for his degree. There remained Part II of the National Board Dental Examination (“NBDEP2”). Pursuant to NYUCD policy, all dental students (beginning with the class of 2004) are required to pass this test to graduate. That same policy specifies that candidates taking the NBDEP2 after finishing their academic coursework must re-matriculate for the academic year when the exam will be taken. For plaintiff, this meant mainly the payment of $3500 in fees. Lastly, the policy requires such students to pass the NBDEP2 within fourteen months of finishing their coursework. In contrast, until recently the American Dental Association, which administers the NBDEP2 through a sub-agency, permitted eligible examinees to retake the NBDEP2 an unlimited number of times so long as the examinee waited the requisite interval between attempts.2

Plaintiff paid $3,500 to re-matriculate in September 2005, and he took the NBDEP2 that very month. Unfortunately, plaintiff failed the exam and was required by American Dental Association protocol to wait at least ninety days before retaking it. [406]*406The complaint (¶ 38) offers the following explanation for this outcome:

Anxiety and stress due to the short preparation period, financial concerns, and the constant threat of dismissal, from the re-matriculation exacerbated his disability and hindered his ability to concentrate during the examination.

In September 2006, plaintiff again paid $3,500 to re-matriculate and take the NBDEP2, and in December 2006, he again took and faded the test. The complaint (¶ 41) alleges:

Anxiety about the financial constraints re-matriculation was placing on his family, the constant threat of dismissal, and concerns about how this financial burden could limit his continued eligibility to -sit for the exam, exacerbated his disability and prevented him from successfully completing NBDEP2 in April 2007; ‘

Plaintiff re-matriculated a third time in Septembér and took the NBDEP2 a third time in April 2007. Again he failed. He alleges (¶ 44):

Again, concerns about the constant threat of dismissal, his financial situation and his inability to afford the costs of re-matriculation prevented Plaintiff from passing NBDEP2.

Plaintiff was then dismissed from the DDS program on May 14, 2007, for failing to pass the NBDEP2 within the time allotted by NYUCD policy. Plaintiff appealed that decision internally, submitting a letter informing the internal appeals committee of his reading disorder and other issues impeding his performance. Plaintiff was then granted an additional year, until June 2008, to pass the NBDEP2 or “face permanent dismissal from the program” (Compl. ¶ 49). '

Since plaintiff had failed the NBDEP2 three times, American Dental Association rules required him to wait a full twelve months, until April 2008, before retaking the exam for a fourth time. According to the complaint (¶ 54):

Plaintiff sat for the exam in May 2008 under severe emotional stress and anxiety over his potential dismissal due to the arbitrary time constraints placed on him by NYUCD which again served to exacerbate his disability. He failed NBDEP2 by three (3) points.

Plaintiff was dismissed from the DDS program on June 27, 2008. Plaintiff again appealed his dismissal, and on appeal, he requested “an accommodation, in which he would be given additional opportunities to take the exam due to his learning disability, specially his troubles with critically reading and comprehending the exam within the time constraints” (Compl. ¶ 56). The complaint (¶ 56) goes on to state the following rationale for the requested accommodations:

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Cite This Page — Counsel Stack

Bluebook (online)
865 F. Supp. 2d 403, 2012 WL 896210, 2012 U.S. Dist. LEXIS 36151, Counsel Stack Legal Research, https://law.counselstack.com/opinion/lipton-v-new-york-university-college-of-dentistry-nysd-2012.