        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

484
TP 16-00608
PRESENT: WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ.


IN THE MATTER OF KRISTEN PONICHTERA, PETITIONER,

                    V                              MEMORANDUM AND ORDER

STATE UNIVERSITY OF NEW YORK AT BUFFALO, RESPONDENT.


FRANK M. BOGULSKI, BUFFALO, FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF
COUNSEL), FOR RESPONDENT.


     Proceeding pursuant to CPLR article 78 (transferred to the
Appellate Division of the Supreme Court in the Fourth Judicial
Department by order of the Supreme Court, Erie County [Frederick J.
Marshall, J.], entered April 14, 2016) to review a determination of
respondent. The determination dismissed petitioner from the Doctor of
Nursing Practice program.

     It is hereby ORDERED that the determination is unanimously
confirmed without costs and the petition is dismissed.

     Memorandum: In this CPLR article 78 proceeding transferred to
this Court pursuant to CPLR 7804 (g), petitioner seeks to annul a
determination dismissing her from respondent’s Doctor of Nursing
Practice program for her violation of respondent’s admissions
integrity standards. “[W]hen a university has adopted a rule or
guideline establishing the procedure to be followed in relation to
suspension or expulsion[,] that procedure must be substantially
observed” (Tedeschi v Wagner Coll., 49 NY2d 652, 660; see Matter of
McConnell v Le Moyne Coll., 25 AD3d 1066, 1068-1069). “ ‘Judicial
scrutiny of the determination of disciplinary matters between a
university and its students . . . is limited to determining whether
the university substantially adhered to its own published rules and
guidelines for disciplinary proceedings so as to ascertain whether its
actions were arbitrary or capricious’ ” (Matter of Nawaz v State Univ.
of N.Y. Univ. at Buffalo Sch. of Dental Medicine, 295 AD2d 944, 944;
see Matter of Budd v State Univ. of N.Y. at Geneseo, 133 AD3d 1341,
1342, lv denied 26 NY3d 919). In a case such as this involving a
public university, “[d]ue process requires that the petitioner[] be
given the name of the witnesses against [her], the opportunity to
present a defense, and the results and finding of the hearing” (Nawaz,
295 AD2d at 944). Here, we conclude that those basic requirements of
due process were met (see Budd, 133 AD3d at 1342-1343; Matter of
Schwarzmueller v State Univ. of N.Y. at Potsdam, 105 AD3d 1117, 1119).
                                 -2-                           484
                                                         TP 16-00608



     Moreover, where, as here, “a university, in expelling a student,
acts within its jurisdiction, not arbitrarily but in the exercise of
an honest discretion based on facts within its knowledge that justify
the exercise of discretion, a court may not review the exercise of its
discretion” (Matter of Carr v St. John’s Univ., N.Y., 17 AD2d 632,
634, affd 12 NY2d 802). We conclude that the determination of
respondent, which found petitioner guilty of omitting from her
applications for admission into respondent’s program information
concerning her prior enrollment at and dismissal from a graduate
degree program at Gannon University, is not arbitrary and capricious
or an abuse of discretion and is rationally supported by the record
(see Matter of Katz v Board of Regents of Univ. of the State of N.Y.,
85 AD3d 1277, 1281, lv denied 17 NY3d 716; see generally Matter of
Susan M. v New York Law Sch., 76 NY2d 241, 246; Matter of Hyman v
Cornell Univ., 82 AD3d 1309, 1310; Matter of Warner v Elmira Coll., 59
AD3d 909, 910-911; Matter of Lusardi v State Univ. of N.Y. at Buffalo,
284 AD2d 992, 992, lv denied 97 NY2d 608).

     We further conclude that the penalty of dismissal from the
academic program was not “so disproportionate to the offense, in the
light of all the circumstances, as to be shocking to one’s sense of
fairness” (Matter of Pell v Board of Educ. of Union Free Sch. Dist.
No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d
222, 233; see Matter of Quercia v New York Univ., 41 AD3d 295, 297).
In light of our determination, we do not consider petitioner’s
remaining contentions.




Entered:   April 28, 2017                      Frances E. Cafarell
                                               Clerk of the Court
