Schwarzmueller v. State Univ. of N.Y. at Potsdam

• Decision Date: 04 April 2013
• Citation: 2013 N.Y. Slip Op. 02306,105 A.D.3d 1117,962 N.Y.S.2d 752
• Parties: In the Matter of Nicholas SCHWARZMUELLER, Petitioner, v. STATE UNIVERSITY OF NEW YORK AT POTSDAM, et al., Respondents.
• Court: New York Supreme Court — Appellate Division

105 A.D.3d 1117

962 N.Y.S.2d 752

2013 N.Y. Slip Op. 02306

In the Matter of Nicholas SCHWARZMUELLER, Petitioner,

v.STATE UNIVERSITY OF NEW YORK AT POTSDAM, et al., Respondents.

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

April 4, 2013.

Watson, Bennett, Colligan & Schechter, LLP, Buffalo (Caroyln Nugent Gorczynski of counsel), for petitioner.

Eric T. Schneiderman, Attorney General, Albany (Zainab A. Chaudhry of counsel), for respondents.

Before: MERCURE, J.P., ROSE, McCARTHY and GARRY, JJ.

MERCURE, J.P.

Proceeding pursuant to CPLR article 78 (transferred to this Court by order of the Supreme Court, entered in St. Lawrence County) to review a determination of respondent President of the State University of New York at Potsdam which, among other things, placed petitioner on disciplinary suspension.

In November 2011, petitioner was a first semester freshman at respondent State University of New York at Potsdam (hereinafter SUNY), majoring in music performance. While walking one night in the basement hallway of a campus dormitory, petitioner encountered a female student, who was walking behind him. According to petitioner, he was carrying and clicking a pen, which is a nervous habit of his. Petitioner stated that the other student was startled by his presence and the fact that he had looked back at her a few times. The other student alleged that petitioner was flicking a knife, and that when he turned around to “smirk[ ]” at her and refused to answer when she spoke to him, she became alarmed and left the area.

A few hours after the incident, petitioner learned that SUNY had issued a safety warning about a suspicious male, possibly carrying a knife, in the same basement. Petitioner then voluntarily turned himself in to campus police and gave a statement explaining what had transpired. Petitioner also admitted that he was, in fact, carrying a three-inch knife in his pocket at the time of the incident, and gave both a pen and the knife to the interviewing officer. The police declined to press charges and released petitioner to respondent William Morris, the Dean of Students, at approximately 1:00 a.m. Morris informed petitioner that he was immediately suspended and not allowed to remain on campus, and assisted petitioner in arranging accommodations with friends in an off-campus location.

Later that morning, the Coordinator of Student Conduct and Community Standards sent petitioner a letter scheduling a meeting with Morris that day, and indicating that he could be charged with two violations of SUNY's Code of Student Rights, Responsibilities and Conduct (hereinafter the Code). The potential charges were “[e]ngaging in a course of conduct or repeatedly committing acts which alarm another person or threaten their well being,” and “[i]ndividual behavior which adversely affects the quality of life on campus or unduly disturbs one or more members of the College community.” The letter, which petitioner signed, informed him of his right to resolve the disciplinary charges through an administrative agreement in lieu of a hearing and the address for the website on which the disciplinary procedures in the Code could be found. Enclosed with the letter were copies of the statements made by petitioner and the other student to police, as well as a summary of the procedural rights of students, including the right to present witnesses and to the assistance of legal counsel or an advisor.

Petitioner agreed in writing to a hearing as soon as possible, and received a second letter the same day scheduling the hearing, notifying him that he had been charged as set forth above, and reiterating that he had the right to present evidence and witnesses, challenge the evidence against him and to appear with an advisor of his choice. Following the hearing, petitioner was found “responsible” for the charges, suspended for the remainder of the academic year and permanently barred from living on campus. Upon his appeal, the suspension was reduced to the remainder of the fall semester. This proceeding ensued.

Initially, we reject petitioner's argument that respondents failed to substantially comply with the rules and guidelines for disciplinary proceedings published in the Code. “It is well established that once having adopted rules or guidelines establishing the procedures to be followed in relation to suspension or expulsion of a student, colleges or universities—both public and private—must substantially comply with those rules and guidelines” (Matter of Weidemann v. State Univ. of N.Y. Coll. at Cortland, 188 A.D.2d 974, 975, 592 N.Y.S.2d 99 [1992] [citations omitted]; see Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 660, 427 N.Y.S.2d 760, 404 N.E.2d 1302 [1980] ). Here, petitioner challenges his immediate suspension and removal from the campus by Morris at 1:00 a.m.—and prior to commencement of disciplinary proceedings—as violating article IX (1)(h) of the Code, which provides that “ [u]pon the service of notice of charges, the Director of Student Conduct and Community Standards may suspend a student for an interim period pending disciplinary proceedings” (emphasis added). We note, however, that although petitioner was not served with the noticeof charges at the time that he was removed from the campus, the Coordinator of Student Conduct and Community Standards promptly contacted petitioner regarding the incident and served the charges later the same morning. In light of the timing of petitioner's release by the police and the exigent circumstances requiring immediate action to preserve campus safety, respondents substantially complied with the rule regarding service of the notice of the charges and the imposition of an interim suspension ( see Matter of...