Wittenberg v. Purchase Coll.

• Decision Date: 09 October 2019
• Docket Number: 2017-11527,Index No. 2597/17
• Citation: Wittenberg v. Purchase Coll., 176 A.D.3d 835, 112 N.Y.S.3d 215 (N.Y. App. Div. 2019)
• Parties: In the Matter of Sydnie WITTENBERG, Appellant, v. PURCHASE COLLEGE, S.U.N.Y., Respondent.
• Court: New York Supreme Court — Appellate Division

176 A.D.3d 835

112 N.Y.S.3d 215

In the Matter of Sydnie WITTENBERG, Appellant,

v.PURCHASE COLLEGE, S.U.N.Y., Respondent.

2017-11527

Index No. 2597/17

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

Submitted—May 17, 2019

October 9, 2019

Zimmerman Law, P.C., Huntington Station, N.Y. (Gary R. Novins of counsel), for appellant.

Letitia James, Attorney General, New York, N.Y. (Andrew W. Amend and David Lawrence III of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RUTH C. BALKIN, BETSY BARROS, LINDA CHRISTOPHER, JJ.

DECISION, ORDER & JUDGMENT

In a proceeding pursuant to CPLR article 78 to review a determination of the Campus Appeals Board of the State University of New York, Purchase College, dated April 27, 2017, affirming a determination, after a hearing, of the Campus Hearing Committee of the Office of Community Standards of the State University of New York, Purchase College, dated April 19, 2017, finding the petitioner responsible for violating the Student Code of Conduct of the State University of New York, Purchase College, and expelling the petitioner with persona non grata status, the petitioner appeals from a judgment of the Supreme Court, Suffolk County (John H. Rouse, J.), dated September 14, 2017. The judgment, in effect, denied the petition and dismissed the proceeding.

ORDERED that the appeal is dismissed and the judgment is vacated; and it is further,

ADJUDGED that the determination dated April 27, 2017, is confirmed, the petition is denied, and the proceeding is dismissed on the merits; and it is further,

ORDERED that one bill of costs is awarded to the respondent.

On March 27, 2017, the petitioner, a student at the State University of New York, Purchase College (hereinafter Purchase), was charged with violating certain sections of Purchase's Student Code of Conduct (hereinafter Code of Conduct), namely, C.1 (acting in a manner which inflicts physical harm, physical abuse, or injury to any person), C.6 (engaging in any behavior against a person which significantly interrupts or prevents that person from carrying out duties and responsibilities associated with their role as faculty, staff, or student), E.8(A) (using or possessing narcotics, hallucinogens, concentrated cannabis, synthetic drugs, or any other controlled substances), E.8(B) (using or possessing cannabis or derivatives of cannabis), E.8(C) (using or possessing controlled substances as defined by the New York State Public Health Law), E.8(D) (manufacturing, distributing, selling, giving, or offering cannabis or its derivatives, narcotics, hallucinogens, or controlled substances), and F.6 (violating quiet hours), and was suspended immediately from Purchase pending a hearing on the charges. Thereafter, the Campus Hearing Committee of the Purchase Office of Community Standards (hereinafter the Hearing Commiteee) held a hearing on April 18, 2017. Following the hearing, the Hearing Committee issued a determination dated April 19, 2017, finding that the petitioner had committed all of the violations alleged. The Hearing Committee imposed the sanction of expulsion with persona non grata status effective April 25, 2017.

In a determination dated April 27, 2017, the Purchase Campus Appeals Board affirmed the determination dated April 19, 2017. The petitioner then commenced this proceeding pursuant to CPLR article 78 to review the determination dated April 27, 2017, alleging, among other things, that the determination was not supported by substantial evidence. The Supreme Court should have transferred the proceeding to this Court without deciding the substantial evidence issue (see Matter of Lamb v. Egan, 150 A.D.3d 854, 855, 54 N.Y.S.3d 100 ; Matter of Pogorzelska v. New York State Dept. of Motor Vehs., 137 A.D.3d 796, 796, 27 N.Y.S.3d 54 ). Nonetheless, since the record is now before us, we will treat the proceeding as though it had been properly transferred, and review the determination de novo (see Matter of DeStefano v. Incorporated Vil. of Mineola, 167 A.D.3d 740, 741, 90 N.Y.S.3d 209 ; Matter of Lamb v. Egan, 150 A.D.3d at 855, 54 N.Y.S.3d 100 ).

Review of Purchase's disciplinary determination made after a hearing is limited to whether the determination is supported by substantial...