Bursch v. Purchase Coll. of the State Univ. of N.Y., 2016–03913

• Citation: 164 A.D.3d 1324,85 N.Y.S.3d 157
• Decision Date: 19 September 2018
• Docket Number: Index No. 1319/15,2016–03913
• Parties: In the Matter of Jamael BURSCH, petitioner, v. PURCHASE COLLEGE OF the STATE UNIVERSITY OF NEW YORK, et al., respondents.
• Court: New York Supreme Court — Appellate Division

164 A.D.3d 1324

85 N.Y.S.3d 157

In the Matter of Jamael BURSCH, petitioner,

v.PURCHASE COLLEGE OF the STATE UNIVERSITY OF NEW YORK, et al., respondents.

2016–03913

Index No. 1319/15

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

Argued - October 13, 2017

September 19, 2018

Brill Legal Group, P.C., Hempstead, N.Y. (Peter E. Brill of counsel), for petitioner.

Barbara D. Underwood, Attorney General, New York, N.Y. (Anisha S. Dasgupta and Seth M. Rokosky of counsel), for respondents.

WILLIAM F. MASTRO, J.P., JEFFREY A. COHEN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, ANGELA G. IANNACCI, JJ.

DECISION & JUDGMENT

Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Purchase College of the State University of New York, dated October 17, 2014. The determination upheld a decision of the Disciplinary Hearing Committee of the respondent Purchase College of the State University of New York dated October 7, 2014, finding that the petitioner committed disciplinary violations, and expelled the petitioner from the school.

ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.

On September 24, 2014, the petitioner, a student at Purchase College of the State University of New York (hereinafter Purchase), was charged with committing four violations of the student code of conduct: (1) engaging or attempting to engage in unwanted sexual behavior toward any individual; (2) engaging or attempting to engage in anal, oral, or vaginal penetration with an individual without the consent of that person; (3) engaging or attempting to engage in sexual intercourse or other sexual behavior with someone who is physically helpless (e.g., drunk and/or under the influence of a substance or substances rendering him or her helpless), unconscious, or otherwise incapacitated or unable to accurately communicate; and (4) underage consumption of alcohol. The next day, the petitioner met with Melissa Jones, Purchase's Director for Community Standards, for an initial conference regarding the charges. At that conference, the petitioner admitted that he was responsible for underage consumption of alcohol, but denied that he was responsible for the other charges. The petitioner elected to have the charges pending against him resolved at a hearing before an administrative hearing board comprised of three faculty and/or professional staff, instead of a hearing board comprised of students and faculty or staff members. The petitioner also received a notice informing him that he was entitled to have an "advisor" of his choice present at the hearing, and that this advisor could be a parent or attorney. The notice further indicated that if an attorney was present, the attorney could not "represent the student and/or interact with the Hearing Committee/Officer or any other individual in the hearing process with the exception of his/her client."

In an email sent to the petitioner on Tuesday, September 30, 2014, Jones stated that she was "currently having an issue with finding a time for your hearing this week due to witness availability and the Jewish holiday." Jones further stated in the email that she was "currently looking to schedule your hearing for Monday, October 6, 2014 or Tuesday, October 7, 2014." In an email sent to Jones later in the day on September 30, 2014, an attorney stated that he had been retained by the petitioner to represent him with respect to the charges, and requested that Jones forward any future correspondence related to the upcoming hearing to the attorney's attention. Still later in the day on September 30, 2014, Jones sent an email to the petitioner noting that she had received the attorney's email, but that she was not able to communicate directly with the attorney until the petitioner completed an attached release form pursuant to the Family Educational Rights and Privacy Act of 1974 (hereinafter FERPA; see 20 USC § 1232g ). Jones stated in the email that until the petitioner completed the FERPA release form, "any direct communication will go through [sic] such as date of hearing, hearing updates, etc. and then you can forward the communication to your attorney prior to providing a reply."

In a letter that was emailed to the petitioner on Thursday, October 2, 2014, Jones informed the petitioner that his hearing was scheduled for 9:00 a.m. on Tuesday, October 7, 2014. Later that day, and again the next day, representatives of Purchase sent emails to the petitioner saying that they had received calls from the petitioner's attorney, but that they were unable to discuss with the attorney any information regarding the petitioner's case until Purchase received a completed FERPA release form.

On October 5, 2014, the petitioner completed a FERPA release form. According to the petition in this CPLR article 78 proceeding, "[o]n or about October 5, 2014," the petitioner's attorney informed a representative of Purchase that he had an unspecified prior commitment at 9:00 a.m. on October 7 that he could not change, and asked for the hearing to be delayed until approximately 12:00 p.m. that day. According to the petition, this request was denied without explanation. On October 6, 2014, Jones emailed the petitioner to inform him of the "witnesses, character witnesses, and reports to be presented in the hearing schedule[d] for tomorrow ... at 9:00 a.m." Jones further wrote in the email: "As a reminder, your request for the hearing to be postponed until 12 noon has been denied due to the availability of the people involved in the hearing."

The hearing took place between 9:42 a.m. and 11:35 a.m. on October 7, 2014. The petitioner's attorney was not present; instead, the petitioner's father was present as his advisor. At the hearing, the complainant testified that on the night of the incident, she had blacked out from intoxication for the first time in her life, remembering nothing about the incident except vomiting in someone's bathroom at some point in the evening. She further testified that she had barely known the petitioner before the night of the incident, that she had been in a two-year relationship with another woman, and that she was shocked to discover her disordered clothing and signs of sexual activity when she awoke the next morning. Text messages exchanged by the complainant and the petitioner the day after the incident were introduced. In these messages, the complainant asked the petitioner what had happened the night before, stating that she had been "incoherent" that night. The petitioner responded that they had sex, and that "I was also incoherent but not as much as you." At the hearing, the petitioner admitted that he had engaged in sexual intercourse with the complainant, that the complainant did not verbally consent to sexual intercourse, that it was "obvious" that she was drunk, and that the complainant "freaked out" or "bugged out" when she realized the next morning that her underwear was not on.

In a determination dated October 7, 2014, the hearing board found that the petitioner committed the charged violations, and recommended that the petitioner be expelled from the college. With respect to each of the first three violations, the board determined that the complainant was intoxicated to the point of being unable to consent to any sexual act. The board then specifically noted the petitioner's text message stating that he was "also incoherent but not as much as you," and the petitioner's testimony that the complainant did not give any verbal consent. The petitioner appealed the hearing board's determination to the campus appeal board. In a determination dated October 15, 2014, the campus appeal board recommended that the appeal be denied. In a letter to the petitioner dated October 17, 2014, Purchase's Vice President of Student Affairs informed the petitioner that he and the president of Purchase had approved the recommendation of the campus appeal board, and that the petitioner was thereby expelled. The petitioner subsequently commenced this proceeding pursuant to CPLR article 78 to review Purchase's determination. In an order entered July 7, 2015, the Supreme Court, Westchester County, transferred the proceeding to this Court pursuant to CPLR 7804(g).

Contrary to the petitioner's contention and the conclusion of our dissenting colleagues, we find that Purchase did not abuse its discretion or act arbitrarily or capriciously in denying the petitioner's request to adjourn the hearing (see CPLR 7803[3] ).

While our dissenting colleagues rely on a provision of Purchase's Sexual and Interpersonal Violence Policy that gives an accused student the right to request a "one-time extension" of a disciplinary hearing, this provision is neither cited by the parties nor contained in the record. In any event, this provision merely states that an accused student has the right to "request" an extension of up to five business days, and further provides that the Director of the Office of Community Standards "will review the request and make a determination" before notifying the requesting party as to "the acceptance or denial of the request" (Purchase Coll., Off. of Community Standards, Sexual and Interpersonal Violence, Sexual Violence Hearing/Discipline Preparation & Rights, available at https://www.purchase.edu/offices/community-standards/sexual-and-interpersonal-violence/hearing/ [last accessed June 28, 2018] ).

Here, although the petitioner was informed on September 30, 2014, that the hearing would likely be scheduled for October 6 or 7, and although he was informed on October 2, 2014, of the exact time of the hearing, he alleges that he did not request an adjournment until "on or about" October 5, 2014, which was two days before the date of the hearing. Any delay in the petitioner's attorney discussing the scheduling of the hearing with the Purchase administration was attributable to the petitioner's delay in executing a...