A.E. v. Hamilton Coll.

• Decision Date: 14 June 2019
• Docket Number: 395,CA 18–01420
• Citation: 173 A.D.3d 1753,104 N.Y.S.3d 445
• Parties: In the Matter of A.E., Petitioner–Appellant, v. HAMILTON COLLEGE, Hamilton College Harassment and Sexual Misconduct Board Review Panel, Appeals Board of Hamilton College, Chaise Ladousa, as Chair of Appeals Board, Tina Hall, as Chair of Hamilton College Harassment and Sexual Misconduct Board Review Panel, Allen Harrison, as Member of Hamilton College Harassment and Sexual Misconduct Board Review Panel, Ashley Place, as Member of Hamilton College Harassment and Sexual Misconduct Board Review Panel, Robin Vanderwall, as Member of Hamilton College Harassment and Sexual Misconduct Board Review Panel, et al., Respondents–Respondents.
• Court: New York Supreme Court — Appellate Division

173 A.D.3d 1753

104 N.Y.S.3d 445

In the Matter of A.E., Petitioner–Appellant,

v.HAMILTON COLLEGE, Hamilton College Harassment and Sexual Misconduct Board Review Panel, Appeals Board of Hamilton College, Chaise Ladousa, as Chair of Appeals Board, Tina Hall, as Chair of Hamilton College Harassment and Sexual Misconduct Board Review Panel, Allen Harrison, as Member of Hamilton College Harassment and Sexual Misconduct Board Review Panel, Ashley Place, as Member of Hamilton College Harassment and Sexual Misconduct Board Review Panel, Robin Vanderwall, as Member of Hamilton College Harassment and Sexual Misconduct Board Review Panel, et al., Respondents–Respondents.

395

CA 18–01420

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

Entered: June 14, 2019

BARKET EPSTEIN KEARON ALDEA & LOTURCO, LLP, GARDEN CITY (ALEX KLEIN OF COUNSEL), FOR PETITIONER–APPELLANT.

BOND, SCHOENECK & KING, PLLC, SYRACUSE (JONATHAN B. FELLOWS OF COUNSEL), FOR RESPONDENTS–RESPONDENTS.

PRESENT: SMITH, J.P., PERADOTTO, CARNI, LINDLEY, AND TROUTMAN, JJ.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously reversed on the law without costs, the petition is reinstated, the petition is granted, the determinations are annulled and respondents are directed to adhere to the published rules and guidelines of respondent Hamilton College in any future proceeding against petitioner related to the incident reports.

Memorandum: Roughly two months before petitioner was due to graduate from respondent Hamilton College (College), several incident reports were filed against him alleging that he had violated various provisions of the College's Sexual Misconduct Policy (Policy). Certain charges were sustained by respondent Hamilton College Harassment and Sexual Misconduct Board Review Panel and upheld by respondent Appeals Board of Hamilton College. The penalty of expulsion was imposed. Petitioner thereafter commenced this CPLR article 78 proceeding seeking to annul "the determination[s] of the [r]espondents, which expelled and then affirmed the [p]etitioner's expulsion from Hamilton College." Petitioner contended, inter alia, that respondents' refusal to provide him with either "a hearing or an opportunity to submit questions to his accusers in writing" violated his right to due process, as codified by state law, and violated the College's own policies and procedures. Supreme Court denied the petition and dismissed the proceeding. We agree with petitioner that respondents failed to follow their own policies and procedures.

As a preliminary matter, we reject respondents' contention that petitioner failed to exhaust administrative remedies.

"Failure to exhaust administrative remedies is a defense that may be waived if not timely raised ..., and [respondents] did not raise that defense in their answer" ( Catuzza v. Rodriguez, 93 A.D.3d 1214, 1214–1215, 940 N.Y.S.2d 420 [4th Dept. 2012] ; see Matter of Mitchell v. New York City Dept. of Correction, 94 A.D.3d 583, 584, 942 N.Y.S.2d 499 [1st Dept. 2012] ). In any event, we conclude that petitioner exhausted his administrative remedies with respect to the issues raised on appeal and, therefore, his contentions are properly before us (cf. Matter of Nawaz v. State Univ. of N.Y. Univ. at Buffalo School of Dental Medicine, 295 A.D.2d 944, 945, 744 N.Y.S.2d 590 [4th Dept. 2002] ; see generally Watergate II Apts. v. Buffalo Sewer Auth., 46 N.Y.2d 52, 57, 412 N.Y.S.2d 821, 385 N.E.2d 560 [1978] ).

With respect to the merits, it is well settled that the relationship between a private university and its students "is essentially a private one such that, absent some showing of State involvement, [its] disciplinary proceedings do not implicate the ‘full panoply of due process guarantees’ " ( Matter of Rensselaer Socy. of Engrs. v. Rensselaer Polytechnic Inst., 260 A.D.2d 992, 994, 689 N.Y.S.2d 292 [3d Dept. 1999] ; see generally Matter of Kickertz v. New York Univ., 25 N.Y.3d 942, 944, 6 N.Y.S.3d 546, 29 N.E.3d 893 [2015] ). " ‘Judicial scrutiny of the determination of disciplinary matters between a university and its students, or student organizations, is limited to determining whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious’ " ( Matter of Al–Khadra v. Syracuse Univ., 291 A.D.2d 865, 866, 737 N.Y.S.2d 491 [4th Dept. 2002], lv denied 98 N.Y.2d 603, 745 N.Y.S.2d 502, 772 N.E.2d 605 [2002] ; see generally Tedeschi v. Wagner Coll., 49 N.Y.2d 652, 660, 427 N.Y.S.2d 760, 404 N.E.2d 1302 [1980] ).

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