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 determina*566tion 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.