Melvin v. Union College
| Decision Date | 06 July 1993 |
| Citation | 195 A.D.2d 447,600 N.Y.S.2d 141 |
| Parties | , 84 Ed. Law Rep. 796 Stacy MELVIN, Appellant, v. UNION COLLEGE, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lee, File & Amtzis, Staten Island (Howard M. File, of counsel), for appellant.
Higgins, Roberts, Beyerl & Coan, P.C., Schenectady (Charles J. Assini, Jr., Michael E. Basile, and Gary M. Haber, of counsel), for respondent.
Before BRACKEN, J.P., and BALLETTA, LAWRENCE and COPERTINO, JJ.
MEMORANDUM BY THE COURT.
In an action, inter alia, to enjoin the defendant from (1) committing an alleged breach of contract and (2) wrongfully suspending the plaintiff as a student, the plaintiff appeals from so much of an order of the Supreme Court, Nassau County (Levitt, J.), entered January 13, 1993, (1) denied her motion for an order restraining and enjoining the defendant from placing her on academic suspension, (2) granted the defendant's cross motion to transfer venue to Schenectady County, and converted the action into a proceeding pursuant to CPLR article 78.
ORDERED that the order is modified, as a matter of discretion, by deleting the provision thereof which denied the appellant's motion for a preliminary injunction, and substituting therefore a provision granting the appellant's motion for a preliminary injunction pending the outcome of the proceeding pursuant to CPLR article 78 (see, CPLR 7805); as so modified, the order is affirmed insofar as appealed from, with costs to the appellant, and the matter is remitted to the Supreme Court, Nassau County, to fix the amount of the bond to be provided by the appellant as security for costs.
The appellant, a student at the respondent college, was accused of academic dishonesty in regard to an organic chemistry examination. A disciplinary hearing was held by the respondent's Subcouncil of the Standing of Students which resulted in a determination which gave the appellant a failing grade in organic chemistry and suspended her for two semesters of undergraduate classes. The appellant commenced an action, alleging, inter alia, breach of contract due to the respondent's failure to conform to the disciplinary guidelines set forth in the student handbook. The appellant also sought a preliminary injunction enjoining the respondent from enforcing the suspension pending the outcome of the matter. The respondent cross-moved for conversion of the action into a proceeding pursuant to CPLR article 78 and for a change of the venue of the action to Schenectady County. In its decision, the Supreme Court, Nassau County (Levitt, J.), inter alia, granted the respondent's cross motion to convert the action to a proceeding pursuant to CPLR article 78, transferred the venue of the matter to Schenectady County, and denied the appellant's motion for a preliminary injunction.
"CPLR article 78 relief is available to review the actions of [the respondent] university and to make inquiry to determine whether it abided by its own rules * * * and 'whether it has acted in good faith or its action was arbitrary or irrational' " (Grogan v. Saint Bonaventure Univ., 91 A.D.2d 855, 458 N.Y.S.2d 410 citing Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 658, 427 N.Y.S.2d 760, 404 N.E.2d 1302). Actions seeking annulment of an educational institution's disciplinary committee's determination are brought pursuant to CPLR article 78 (see, Silverman v. New York Univ., 193 A.D.2d 410, 597 N.Y.S.2d 314 [1st Dept., 1993]; Weidemann v. State Univ. of New York Coll. at Cortland, 188 A.D.2d 974, 592 N.Y.S.2d 99 [3d Dept., 1992]; Kalinsky v. State Univ. of NY at Binghamton, 188 A.D.2d 810, 591 N.Y.S.2d 242 [3d Dept., 1992]; Harris v. Trustees of Columbia Univ., 62 N.Y.2d 956, 479 N.Y.S.2d 216, 468 N.E.2d 54). Accordingly, we find that the Supreme Court properly converted the appellant's action to a proceeding pursuant to CPLR article 78. Moreover, the venue of the matter was properly transferred to Schenectady County (see, CPLR 7804[b]; 506[b].
We agree with the appellant that the Supreme Court improperly denied her motion for a preliminary injunction. On a motion for a preliminary injunction, the movant must prove three things: (1) the likelihood of his ultimate success on the merits, (2) irreparable injury to the movant absent granting of a...
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