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

1180
TP 15-00674
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ.


IN THE MATTER OF JAMES E. BUDD, PETITIONER,

                    V                             MEMORANDUM AND ORDER

STATE UNIVERSITY OF NEW YORK AT GENESEO,
RESPONDENT.


LAW OFFICE OF PETER K. SKIVINGTON PLLC, GENESEO (DANIEL R. MAGILL OF
COUNSEL), FOR PETITIONER.

ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBERG 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 an order of the Supreme Court, Livingston County [Robert
B. Wiggins, A.J.], entered April 17, 2015) to review a determination
of respondent. The determination, among other things, expelled
petitioner as a student at the State University of New York at
Geneseo.

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

     Memorandum: Petitioner commenced this CPLR article 78
proceeding, transferred to this Court pursuant to CPLR 7804 (g),
seeking to annul the determination of respondent to expel him as an
undergraduate student. Petitioner on four prior occasions had been
subject to discipline, including a year-long suspension, for violating
respondent’s Student Code of Conduct (Code). He was subsequently
expelled after respondent determined that he violated two sections of
the Code, one proscribing physical assaults and a second prohibiting
deliberate incitement of others to engage in Code-violating conduct.
At the hearing on those charges, respondent relied in pertinent part
on a police report and supporting depositions describing how
petitioner tackled a man to the ground, pursued the man to a nearby
apartment with other students, and punched the man in the face.

     Our review of respondent’s determination “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
Rensselaer Socy. of Engrs. v Rensselaer Polytechnic Inst., 260 AD2d
992, 993). A public university such as respondent must “provide its
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                                                         TP 15-00674

students with the full panoply of due process guarantees . . . [,
which] requires that [students] be given the names of the witnesses
against them, the opportunity to present a defense, and the results
and finding of the hearing” (Nawaz v State Univ. of N.Y. Univ. at
Buffalo School of Dental Medicine, 295 AD2d 944, 944 [internal
quotation marks omitted]).

     Here, the record demonstrates that respondent “substantially
adhered to its grievance procedures and that its determination is
neither arbitrary nor capricious” (Matter of Krysty v State Univ. of
N.Y. at Buffalo, 39 AD3d 1220, 1220), and that petitioner was provided
with the “full panoply of due process guarantees” to which he was
entitled (Nawaz, 295 AD2d at 944). We reject petitioner’s contention
that respondent’s failure to provide him certain documents through
prehearing discovery denied him due process. It is clear from the
record that petitioner possessed the relevant documents, and therefore
he was not prejudiced by any failure on the part of respondent to
provide those documents to him (see generally Matter of Kaur v New
York State Urban Dev. Corp., 15 NY3d 235, 259-261). Contrary to
petitioner’s further contention, he was not deprived of due process by
any improper combination of roles of the hearing chairperson (see
Matter of Amos v Board of Educ. of Cheektowaga-Sloan Union Free Sch.
Dist., 54 AD2d 297, 304, affd 43 NY2d 706).

     We reject petitioner’s contention that respondent’s written
determination denied him due process by failing to set forth detailed
factual findings with respect to his violation of the Code’s
“deliberate incitement” provision. “In a disciplinary proceeding at a
public institution of higher education, due process entitles a student
accused of misconduct to a statement detailing the factual findings
and the evidence relied upon by the decision-maker in reaching the
determination of guilt” sufficient “to permit the student to
effectively challenge the determination in administrative appeals and
in the courts and to ensure that the decision was based on evidence in
the record” (Matter of Boyd v State Univ. of N.Y. at Cortland, 110
AD3d 1174, 1175 [internal quotation marks omitted]). In our view,
respondent’s determination, which described the evidence on which
respondent relied and described petitioner’s deliberate incitement of
other students to join his pursuit and engage in an altercation,
satisfies that standard.

     Petitioner contends that he was denied due process during his
administrative appeal because the determination of that appeal
improperly relied on documents concerning his “past conduct record”
that were not part of the administrative record. Petitioner also
contends that those documents should be stricken from the record. We
reject both contentions. The Code directs that “an appeal shall be
limited to review of the verbatim record of the initial review . . .
and supporting documents” (emphasis added) and, because the Code also
directs that “[a] student’s past conduct record shall be considered in
the determination of appropriate sanctions,” we conclude that the
challenged documents are the type of “supporting documents” that were
properly reviewed as part of petitioner’s administrative appeal.
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                                                         TP 15-00674

     Finally, we reject petitioner’s further contention that he was
denied due process because his disciplinary hearing consisted solely
of hearsay evidence and he was denied the opportunity to confront live
witnesses. “[T]he rights at stake in a school disciplinary hearing
may be fairly determined upon the ‘hearsay’ evidence of school
administrators charged with the duty of investigating the incidents”
(Boykins v Fairfield Bd. of Educ., 492 F2d 697, 701, cert denied 420
US 962), and “[t]he lack of confrontation [does] not violate the
[Code], which provide[s] for a nonadversarial fact-finding hearing
‘without being unnecessarily formal or legalistic’ ” (Matter of Ebert
v Yeshiva Univ., 28 AD3d 315, 316).




Entered:   November 20, 2015                    Frances E. Cafarell
                                                Clerk of the Court
