Alexander M. v. Cleary

• Decision Date: 25 November 2020
• Docket Number: 528959
• Citation: 137 N.Y.S.3d 182,188 A.D.3d 1471
• Parties: In the Matter of ALEXANDER M., Appellant—Petitioner, v. Chantelle CLEARY, as Former Title IX Coordinator at the State University of New York at Albany, et al., Respondents—Respondents.
• Court: New York Supreme Court — Appellate Division

188 A.D.3d 1471

137 N.Y.S.3d 182

In the Matter of ALEXANDER M., Appellant—Petitioner,

v.Chantelle CLEARY, as Former Title IX Coordinator at the State University of New York at Albany, et al., Respondents—Respondents.

528959

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: August 20, 2020

Decided and Entered: November 25, 2020

MEMORANDUM AND ORDER

Reynolds Fitzgerald, J.

(1) Appeal from an order of the Supreme Court (Nichols, J.), entered February 22, 2019 in Albany County, which, in a proceeding pursuant to CPLR article 78, denied petitioner's motion to direct discovery, and (2) proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in Albany County) to review a determination of respondent State University of New York at Albany finding petitioner in violation of said respondent's code of conduct.

On a Friday night in September 2017, petitioner, a student at respondent State University of New York at Albany (hereinafter UAlbany), allegedly engaged in nonconsensual sexual conduct with a female student (hereinafter the reporting individual) and distributed Xanax to her and two other students. Petitioner maintains that the sexual conduct was consensual, and that the reporting individual gave her verbal consent and actively participated in their encounter. The reporting individual avers that she has no memory of the sexual activity itself and very little memory of the events that took place on Friday evening. In fact, she informed petitioner about her lack of recall during a discussion that took place after they woke up on Saturday morning. However, later in the day, she texted petitioner, "Last night was amazing, we should do that again" and also reiterated, "Sorry to freak you out this morning, I just don't remember anything that happened," and, finally, a text suggesting that they "link up." The two met later in the day at the campus center to have dinner. During dinner, petitioner informed the reporting individual that his girlfriend from home was coming to campus that night. Later, both attended a party at petitioner's dorm and, although the reporting individual has a sparse memory of much of the night, she does recall a verbal altercation with petitioner's girlfriend, being pushed outside the door of the party, falling down the interior stairwell and being dragged back to the room and left to sleep on the floor of the "common area" of petitioner's dorm suite. On Sunday morning, she woke up and, upon seeing petitioner and his girlfriend in bed, threw a cup of water on them and left. The reporting individual returned to her dorm. Once there, she heard from some of her friends that there was a rumor that she "had sex in the bathroom" at a fraternity house on Friday night. They then advised her to go to the hospital to undergo a forensic sexual assault exam, which she did. After giving a statement to the UAlbany police, the reporting individual returned to campus and the incident was then reported to respondent Chantelle Cleary, who was the Title IX Coordinator at UAlbany.

Cleary provided written notice to petitioner that she was investigating the incident to determine whether he had engaged in sexual misconduct and drug offenses in violation of UAlbany's official code of conduct (hereinafter the student code).¹ During the ensuing investigation, Cleary and three other investigators interviewed both parties and several witnesses. Following the conclusion of the investigation, Cleary and the other investigators compiled and submitted a referral report to the Office of Community Standards, and a hearing was conducted before UAlbany's Student Conduct Board (hereinafter the Board). Petitioner and the reporting individual both attended the hearing and each was accompanied by an advisor. Petitioner, Cleary and the reporting individual were the only live witnesses. Petitioner was allowed to submit proposed questions to the Board and, if it thought the particular question was relevant, the Board would then put the question to the witness. The testimony of all other witnesses was confined to the statements given to investigators, which were contained in the referral report. At the conclusion of the hearing, the Board found petitioner to be in violation of the student code and expelled him from UAlbany.

Petitioner's administrative appeal was unsuccessful, with the administrative appeal board finding no "evidence of a procedural error, new evidence or evidence that the sanction was too severe." Petitioner thereafter commenced this CPLR article 78 proceeding challenging UAlbany's determination and seeking his reinstatement to UAlbany. Petitioner also moved for an order directing discovery on the issue of whether Cleary was biased against him during the investigation. Supreme Court denied the motion to direct discovery and, in a separate order, transferred the proceeding to this Court pursuant to CPLR 7804(g). Petitioner appeals from the denial of his motion.

Initially, petitioner's appeal from the order denying his motion must be dismissed as no appeal lies as of right from a nonfinal order in a CPLR article 78 proceeding (see CPLR 5701[b][1] ). However, this Court "may nevertheless review those issues raised regarding said order within the context of the transferred proceeding" ( Matter of Robinson v. DiNapoli, 172 A.D.3d 1513, 1515 n, 100 N.Y.S.3d 392 [2019], lv dismissed and denied 34 N.Y.3d 1144, 119 N.Y.S.3d 426, 142 N.E.3d 109 [2020] ).

We agree with petitioner that Supreme Court erred in denying his motion for discovery. In a special proceeding such as this, discovery is available only by leave of court (see CPLR 408 ; Matter of Held v. State of N.Y. Workers' Compensation Bd., 103 A.D.3d 1063, 1064, 960 N.Y.S.2d 542 [2013] ). "Among the factors weighed are whether the party seeking disclosure has established that the requested information is material and necessary, whether the request is carefully tailored to obtain the necessary information and whether undue delay will result from the request" ( Matter of Suit–Kote Corp. v. Rivera, 137 A.D.3d 1361, 1365, 26 N.Y.S.3d 642 [2016] [citations omitted], appeal dismissed and lv. denied 27 N.Y.3d 1054, 33 N.Y.S.3d 874, 53 N.E.3d 754 [2016] ; see Matter of Entergy Nuclear Indian Point 2, LLC v. New York State Dept. of State, 130 A.D.3d 1190, 1196–1197, 14 N.Y.S.3d 177 [2015] ). Petitioner's motion requested the disclosure of, among other things, "[r]ecordings of all meetings and interviews" between petitioner and the Title IX investigators, as well as "[r]ecordings of all interviews of all witnesses" conducted in furtherance of the investigation. Petitioner cited the alleged bias of Cleary, and the attendant bias on his guarantee of an impartial investigation, as the reason the requested discovery was "material and necessary"; respondents did not argue that the requested discovery was overbroad or would cause undue delay. Thus, we find that petitioner met the requirements for discovery under Matter of Suit–Kote Corp. v. Rivera , 137 A.D.3d 1361, 26 N.Y.S.3d 642 (2016). Supreme Court, however, denied petitioner's request finding petitioner's submissions in support of discovery had failed to identify the specific evidence that said discovery would contain.²

"It is beyond dispute that an impartial decision maker is a core guarantee of due process, fully applicable to adjudicatory proceedings before administrative agencies" ( Matter of 1616 Second Ave. Rest. v. New York State Liq. Auth., 75 N.Y.2d 158, 161, 551 N.Y.S.2d 461, 550 N.E.2d 910 [1990] [citations omitted] ). Education Law article 129–B, known as the Enough is Enough Law, provides for the implementation by colleges and universities of, as relevant here, sexual assault policies and procedures. The rights of a student accused of sexual assault are found in Education Law § 6444(5)(c) and are replicated within the student code. Among these rights is the right to an impartial investigation. "[T]he Enough is Enough Law requires that colleges and universities implement a ‘students' bill of rights' that includes the right to ‘[p]articipate in a process that is fair [and] impartial’ " ( Matter of Jacobson v. Blaise, 157 A.D.3d 1072, 1075, 69 N.Y.S.3d 419 [2018], quoting Education Law § 6443 ). The requirements of the statute are the "minimum" all colleges and universities must provide ( Matter of Jacobson v. Blaise, 157 A.D.3d at 1075, 69 N.Y.S.3d 419 ). Ensuring these minimum requirements is especially crucial in student disciplinary proceedings, an administrative arena where traditional due process guarantees are sometimes limited and where "there is no general constitutional right to discovery" ( Matter of Agudio v. State Univ. of N. Y., 164 A.D.3d 986, 990, 83 N.Y.S.3d 343 [2018] [internal quotations marks and citation omitted] ). In addition, "[u]nlike the constitutional right to confrontation in criminal actions, parties in administrative proceedings have only a limited right to cross-examine adverse witnesses as a matter of due process" ( Matter of Weber v. State Univ. of N.Y., Coll. at Cortland, 150 A.D.3d 1429, 1432, 55 N.Y.S.3d 753 [2017] [internal quotation marks and citation omitted] ).

Further, we draw a distinction between the procedural rights actually afforded and their substantive underpinnings. Here, where the nonconsensual nature of the sexual activity was not predicated on the reporting individual's verbal and physical manifestation of nonconsent – but on her ability to knowingly consent due to excessive inebriation – and the reporting individual avers no memory of the activity, the Board's determination was necessarily heavily reliant on that part of the referral report that contained a summary of statements of persons who had observed the reporting individual during Friday evening, prior to her sexual encounter with petitioner. Notably, these are not sworn affidavits of the witnesses, but rather statements collected and compiled...