IN RE: JAMES L. AND MICHELLE L. (2024)

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

IN RE: JAMES L. AND MICHELLE L., AS PARENTS AND NATURAL GUARDIANS OF THEIR SON, J.L., A PERSON UNDER THE AGE OF 18, AND LANDON GRAINY, PETITIONERS-APPELLANTS, v. STARPOINT CENTRAL SCHOOL DISTRICT, BOARD OF EDUCATION OF STARPOINT CENTRAL SCHOOL DISTRICT AND DR. SEAN M. CROFT, SUPERINTENDENT OF SCHOOLS, STARPOINT CENTRAL SCHOOL DISTRICT, RESPONDENTS-RESPONDENTS.

509 Decided: July 26, 2024

PRESENT: SMITH, J.P., BANNISTER, MONTOUR, GREENWOOD, AND NOWAK, JJ.

GROSS SHUMAN P.C., BUFFALO (B. KEVIN BURKE, JR., OF COUNSEL), FOR PETITIONERS-APPELLANTS. WEBSTER SZANYI LLP, BUFFALO (RYAN G. SMITH OF COUNSEL), FOR RESPONDENTS-RESPONDENTS.

MEMORANDUM AND ORDER

It is hereby ORDERED that the judgment so appealed from is unanimously affirmed without costs.

Memorandum: Petitioners commenced this CPLR article 78 proceeding seeking to annul respondents’ determination to remove two students from school on an emergency basis following allegations that they repeatedly engaged in the sexual assault of a wresting teammate during practices. Petitioners appeal from a judgment that dismissed their petition. We affirm.

Upon receiving credible allegations of sexual assault by two students, respondents provided a detailed factual recitation of the allegations against each student and determined that each student posed an immediate threat to the physical health and safety of other students (see 34 CFR 106.44 [c]). Contrary to petitioners’ contention, upon our review of the record, we conclude that respondents’ emergency removal determination is supported by a rational basis and is not arbitrary and capricious (see generally Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]; Matter of Doe 1 v Syracuse Univ., 188 AD3d 1570, 1575-1576 [4th Dept 2020], lv denied 37 NY3d 906 [2021]).

Entered: July 26, 2024

Ann Dillon Flynn

Clerk of the Court

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