Basile v. Albany Coll. Pharmacy Union Univ.

• Decision Date: 13 November 2000
• Citation: 719 N.Y.S.2d 199,279 A.D.2d 770
• Parties: (A.D. 3 Dept. 2001) In the Matter of CARL A. BASILE et al., Appellants-Respondents, v. ALBANY COLLEGE OF PHARMACY OF UNION UNIVERSITY et al., Respondents-Appellants. 87744 Calendar Date:
• Court: New York Supreme Court — Appellate Division

Page 199

719 N.Y.S.2d 199 (A.D. 3 Dept. 2001)

In the Matter of CARL A. BASILE et al., Appellants-Respondents, v. ALBANY COLLEGE OF PHARMACY OF UNION UNIVERSITY et al., Respondents-Appellants.

87744

SUPREME COURT, APPELLATE DIVISION, THIRD JUDICIAL DEPARTMENT

Calendar Date: November 13, 2000

Decided and Entered: January 11, 2001

O'Hara & O'Connell (James P. Evans of counsel), Syracuse, for appellants-respondents.

Pattison, Sampson, Ginsberg & Griffin P.C. (Jeffrey R. Armstrong of counsel), Troy, for respondents-appellants.

Before: Cardona, P.J., Crew III, Mugglin, Rose and Lahtinen, JJ.

Mugglin, J.

Cross appeals from a judgment of the Supreme Court (Malone Jr., J.), entered December 3, 1999 in Albany County, which dismissed petitioners' application, in a proceeding pursuant to CPLR article 78, to review determinations of respondents expelling petitioners Carl A. Basile and Daniel R. Papelino from respondent Albany College of Pharmacy, and awarding petitioner Michael Yu a failing grade in a required course.

Petitioners, fourth year students at respondent Albany College of Pharmacy (hereinafter the College), were charged by several of their respective professors with cheating on examinations given in various courses spanning two academic years. Following a hearing conducted by respondent Albany College of Pharmacy Student Honor Code Committee (hereinafter the Committee), petitioners were found guilty of cheating despite the absence of any evidence as to the specific means by which they allegedly cheated. The evidence in support of the charges consisted of (1) compilations by the various professors showing that petitioners gave the same incorrect answers to multiple choice examinations, (2) two anonymous notes, one of which claimed that two petitioners requested information concerning the contents of exams and the second questioning whether the same two petitioners were cheating, and (3) similar answers to questions which required calculations, although each petitioner utilized different calculations uncorrelated to the answer arrived at.

Petitioners commenced this CPLR article 78 proceeding to annul respondents' determinations. Although the petition alleged certain procedural defects in the administrative hearing process, by stipulation and order petitioners waived all procedural defects underlying the determinations. Supreme Court, concluding that the appropriate standard of review was whether the determinations were rationally based, dismissed the petition. As a collateral matter, Supreme Court refused to consider an affidavit offered by the College since it was not a part of the administrative record underlying the determinations under review. Petitioners now appeal Supreme Court's dismissal of the petition and confirmation of the determinations. Respondents cross-appeal from Supreme Court's refusal to consider the affidavit.

As an initial matter, we observe that Supreme Court adopted the correct standard of review. It is well settled that judicial review of academic disciplinary matters between a private college and its students, where a hearing is not required by law, is whether the determination is arbitrary or capricious, not whether it is supported by substantial evidence (see, Matter of Rensselaer Socy. of Engrs. v Rensselaer Polytechnic Inst., 260 A.D.2d 992, 993; Matter of Christopher v Phillips, 160 A.D.2d 1165, 1167, lv denied 76 N.Y.2d 706). "Rationality is what is reviewed under...