
    In the Matter of E. Ezra Sofair, Respondent, v State University of New York Upstate Medical Center College of Medicine, Appellant.
    Argued April 24, 1978;
    decided May 31,1978
    
      POINTS OF COUNSEL
    
      Louis J. Lefkowitz, Attorney-General (Sidney L. Grossman, Ruth Kessler Toch and Anne S. Meadvin of counsel), for appellant.
    I. The order of the court below, remitting the proceeding to respondent for a hearing, with a detailed written statement of the evidence relied upon by appellant to be submitted to respondent Sofair beforehand, is a final determination which is appealable as of right to this court, and therefore justifies this court’s retention of subject-matter jurisdiction. (Matter of Wilaka Constr. Corp. [New York City Housing Auth.], 17 NY2d 195; Matter of Board of Educ. [Auburn Teachers Assn.], 38 NY2d 740; Merrill Lynch, Pierce, Fenner & Smith v Griesenbeck, 21 NY2d 688.) II. The action taken by appellant in dismissing respondent from medical college was not arbitrary, capricious or in bad faith. Therefore, judicial review of appellant’s actions is improper. (Stringer v Gould, 64 Misc 2d 89; Matter of Carr v St. John’s Univ., N. Y, 17 AD2d 632, 12 NY2d 802; People ex rel. Goldenkoff v Albany Law School, 198 App Div 460; People ex 
      
      rel. O’Sullivan v New York Law School, 68 Hun 118; People ex rel. Cecil v Bellevue Hosp. Med. Coll. of City of N. Y., 60 Hun 107, 128 NY 621; Greenhill v Bailey, 519 F2d 5; Connelly v University of Vt. & State Agric. Coll., 244 F Supp 156; Brookins v Bonnell, 362 F Supp 379; Matter of Lesser v Board of Educ., 18 AD2d 388; Matter of Blank v Board of Higher Educ., 51 Misc 2d 724.) III. The determination of appellant to dismiss respondent Sofair for academic deficiencies, in the absence of acting in an arbitrary or capricious manner or in bad faith does not, as the court below erroneously held, call for the application of due process standards to the sufficiency of the administrative procedures followed. (Steier v New York State Educ. Comr., 271 F2d 13; Matter of Edde v Columbia Univ. in City of N. Y., 8 Misc 2d 795, 6 AD2d 780, 5 NY2d 881, 359 US 956; Matter of Lesser v Board of Educ., 18 AD2d 388; Mahavongsanan v Hall, 529 F2d 448; Wright v Texas So. Univ., 392 F2d 728; Gaspar v Bruton, 513 F2d 843; Dixon v Alabama State Bd. of Educ., 294 F2d 150; Goss v Lopez, 419 US 565.) IV. Based on the Supreme Court’s decision in Horowitz, respondent Sofair has been awarded "as much due process as the Fourteenth Amendment requires”. V. Based on the Supreme Court’s decision in Horowitz, the court below acted erroneously in holding that respondent Sofair was entitled pursuant to due process to detailed written notice of charges and a hearing prior to dismissal from the medical college for deficiency in academic performance. (Greenhill v Bailey, 519 F2d 5; Goss v Lopez, 419 US 565; Snyder v Massachusetts, 291 US 97; Powell v Alabama, 287 US 45; Jackman v Rosenbaum Co., 260 US 22.) VI. The action taken by appellant in dismissing respondent from medical college was not arbitrary, capricious or in bad faith. Therefore, based on the Supreme Court’s decision in Horowitz, judicial review of appellant’s action is improper.
    
      Richard W. Cook for respondent.
    I. The decision of the court below ordering a new hearing on the issue of petitioner’s dismissal is nonfinal and no appeal as of right lies therefrom to this court. (Matter of Rochester Gas & Elec. Corp. v Maltbie, 298 NY 103; Matter of Colonial Liq. Distrs. v O’Connell, 295 NY 129; Matter of New York State Elec. Corp. v Public Serv. Comm. of State of N. Y, 260 NY 32; Matter of Grade Crossings [New York Cent. R. R. Co.], 255 NY 320; Matter of Brooklyn Union Gas Co. v Joseph, 297 NY 469; Matter of Begenet v Noyes, 284 NY 229; Matter of North Amer. Holding 
      
      Corp. v Murdock, 6 AD2d 596.) II. The action taken by respondent in dismissing petitioner during his fourth and final year of medical school, upon grounds for which there was no authority, and while petitioner was in good standing, was arbitrary and capricious, and judicial review thereof is proper. (Matter of Ryan v Hofstra Univ., 67 Misc 2d 651; Matter of Blank v Board of Educ., 51 Misc 2d 724; Matter of Healy v Larsson, 67 Misc 2d 374, 42 AD2d 1051, 35 NY2d 653; Matter of Carr v St. John’s Univ., N. Y., 17 AD2d 632, 12 NY2d 802; Greenhill v Bailey, 519 F2d 5; Balogun v Cornell Univ., 70 Misc 2d 474; Matter of Bonwitt v Albany Med. Center School of Nursing, 77 Misc 2d 269.) III. The dismissal of petitioner during his final year of medical school on the basis of a "hearing” held on less than a day’s notice to petitioner and in which he was given no opportunity to present arguments against his dismissal is contrary to due process standards. (Goss v Lopez, 419 US 565; Perry v Sindermann, 408 US 593; Board of Regents v Roth, 408 US 564; Morrissey v Brewer, 408 US 471; Horowitz v Board of Curators of Univ. of Mo., 538 F2d 1317; Greenhill v Bailey, 519 F2d 5; Wisconsin v Constantineau, 400 US 433; Wieman v Updegraff, 344 US 183; Anti-Fascist Committee v McGrath, 341 US 123; Dixon v Alabama State Bd. of Educ., 294 F2d 150.)
   OPINION OF THE COURT

Jones, J.

We conclude that the procedures followed by Upstate Medical Center College of Medicine when petitioner was dropped as a medical student for academic cause were not such as to deny him due process of law in violation of the provisions of our Federal and State Constitutions.

In this article 78 proceeding, instituted for an order directing the College of Medicine to reinstate petitioner in the medical school and to award him the degree of Doctor of Medicine, Special Term dismissed the petition. The Appellate Division, while agreeing on the merits that the college’s determination was neither arbitrary and capricious nor in violation of any contractual right of the student, by a divided vote, reversed the dismissal of his petition on the ground that the student had been denied procedural due process because the hearing which was offered him was held within a matter of hours, or even "minutes”, after the first notification to him of his dismissal. For that reason the court granted the petition to the extent of directing the College of Medicine to accord petitioner an appropriate hearing. The relevant facts and contentions of the parties are detailed in the opinion of Mr. Justice Harry D. Goldman (54 AD2d 287).

On the appeal to us taken by the College of Medicine as of right we first reject the application of petitioner made in his brief and on oral argument to dismiss the appeal on the ground that the order sought to be appealed is nonfinal inasmuch as the Appellate Division "remitted” the case to the College of Medicine for further proceedings. The so-called "remittal”, however, was not within the judicial system or to an administrative agency of the State. (Cf. Cohen and Karger, Powers of the New York Court of Appeals [rev ed], § 12, pp 49-55.) Any judicial review of the new determination to be made by the College of Medicine following the mandated hearing could only be had in a new, second article 78 proceeding; the present proceeding could not be revived as a procedural vehicle for such review. Accordingly, the disposition at the Appellate Division finally determined the present proceeding within the meaning of the Constitution. (NY Const, art VI, § 3; CPLR 5601, subd [a], par [ii].)

On the merits of the appeal we hold that there is no substance to petitioner’s claim that he was denied procedural due process (Board of Curators, Univ. of Mo. v Horowitz, 435 US 78). In this instance, as in Horowitz, the student had previously been informed of the school’s dissatisfaction with his progress, and the dismissal was for academic (as opposed to disciplinary) cause — failure "to demonstrate sufficient clinical aptitude for the practice of medicine”. In this circumstance the differences between the parties did not present factual issues to be resolved by evidentiary proof. The dismissal was predicated on an academic evaluation, bearing "little resemblance to the judicial and administrative fact-finding proceedings to which we have traditionally attached a full hearing requirement. * * * [T]he determination whether to dismiss a student for academic reasons requires an expert evaluation of cumulative information and is not readily adapted to the procedural tools of judicial or administrative decisionmaking.” (435 US, at pp 89-90). We would only add that no contention is advanced on behalf of this student that the dismissal was made in bad faith or that the assignment of academic cause was a calculated pretext — arguments which if substantiated might present factual issues appropriately to be resolved in a judicial evidentiary hearing.

The dissenter would hold that a medical school’s having afforded its student an opportunity to demonstrate improvement operated somehow to create an adversarial right later to question the school’s evaluation of this academic performance. So to hold might invite indeliberate, and therefore perhaps unwarranted, early dismissal, and thus discourage extension of opportunity by further effort and performance to improve the quality of what had theretofor been inadequate academic achievement. The position of the school should not be prejudiced because it alerted this student to his predicament, and he thereafter elected to continue his course of study.

For the reasons stated, the order of the Appellate Division should be reversed, with costs, and the judgment of Supreme Court reinstated.

Fuchsberg, J.

(dissenting). The offering of a hearing on notice so short that it may have consisted of no more than some "minutes” made it a mockery. No exigency is claimed in justification for this brevity. On a matter as vital to the petitioner as dismissal from the medical college and the accompanying frustration of his planned professional career, the shock of the instantaneousness of this procedure was likely to have rendered the petitioner even less capable of meaningful participation in a hearing than if none had been offered him at all. Thus, there was not even minimal due process.

Yet, ingredients of the "supposed 'personality conflicts’ which petitioner experienced in clinical settings” (to quote the descriptive language employed in the opinion written [p 295] for the Appellate Division majority by Mr. Justice Harry D. Goldman) are just the kind of characteristics so frequently instinct with an admixture of the subjective and objective as to warrant the limited procedural due process ordered by that court. In such a case, a rigid dichotomy between the levels of due process to be accorded students threatened with dismissal for academic reasons and those put in similar jeopardy for nonacademic reasons seems particularly inappropriate (cf. Board of Curators, Univ. of Mo. v Horowitz, 435 US 78, 96 [Marshall, J., concurring]).

Even more urgent need for some level of due process is to be found in the fact that the medical college had deemed the petitioner’s performance sufficiently acceptable to have advanced him from year to year and to have invited him to take a fifth one as a prelude to graduation. As footnote 2 of the majority opinion demonstrates, petitioner’s deficiencies, such as they were, were known to the college authorities during all this period. He nevertheless was encouraged to continue to expend the years, the efforts and the moneys that his long course of study entailed. When the college took its belated action on the very eve of the completion of his medical schooling, the level of his achievement was not then substantially different from what it had been earlier. To what extent this remarkable delay, if delay is all it was, was due to what the record also reveals to have been a largely standardless grading system is not at all clear. But it most certainly invites exploration at a hearing.

Under these circumstances, neither academic freedom nor independence of educational management was in any way undermined by the Appellate Division’s conclusion that fairness would best be served by requiring the college to grant petitioner an informal hearing noticed for a time that would permit opportunity to prepare to meet whatever hard evidence was relied on for the proposed action. Accordingly, the order should not be disturbed.

Chief Judge Breitel and Judges Jasen, Gabrielli, Wachtler and Cooke concur with Judge Jones; Judge Fuchsberg dissents and votes to affirm in a separate opinion.

Order reversed, etc. 
      
      . Petitioner’s motion for leave to cross appeal was denied (41 NY2d 803).
     
      
      . In addition to this conclusion, reached by both the Fourth Year Medical Grades Committee and the Committee on Academic Promotions, the record disclosed that the medical student had failed Pathology in his second year, both Medicine and Surgery in his third, and Nephrology in his fourth. The Dean of Admissions had written him more than six months before he was dropped from the medical school:
      "Your request for an elective with the Department of Obstetrics and Gynecology was not approved by the Committee on Academic Promotions. This committee of the faculty has decided that you do not meet standards for graduation; and that, in their opinion, you are not ready for the practice of medicine. This decision is based upon your cumulative academic record, comprised of grades and narratives, over the past four years. Your record indicates that you have failed at least one major course every year, and still carry a failing grade in Nephrology, a fourth-year elective. The significance of having failed courses, such as pathology, surgery and medicine, raised serious questions about your level of competency at this time; particularly, your abilities to apply essential medical knowledge to patient-care activities.
      
        "It is the decision of this committee that you be required to complete an additional academic year of clinical electives during 1975-76.”
     