Kingston v. Sophie Davis School of Biomedical Education

Judgment, Supreme Court, New York County (Carol R. Edmead, J.), entered October 16, 2009, dismissing the petition seeking reinstatement as a student, unanimously affirmed, without costs.

Petitioner failed to commence this proceeding within four months after she received notice of the denial of her final administrative appeal. Thus, the proceeding is time-barred (see CPLR 217 [1]; Matter of Best Payphones, Inc. v Department of Info. Tech. & Telecom. of City of N.Y., 5 NY3d 30, 34 [2005]).

Were we to consider the merits, we would find, that in light of petitioner’s marginal academic record, respondent’s determination not to reinstate her was not arbitrary or irrational (see Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408, 413-414 [1980]). Nor was the fact that she was not given proper instructions for the exam in question a basis for judicial intervention. Indeed, petitioner was given a chance to qualify to take the subject exam again, but she failed the reassessment test. Concur—Mazzarelli, J.P., Friedman, Catterson, Manzanet-Daniels and Román, JJ.