IN RE: Ryan WEST (2018)

MEMORANDUM AND ORDER

In this CPLR article 78 proceeding transferred to this Court pursuant to CPLR 7804(g), petitioner seeks to annul a determination of respondent that petitioner had nonconsensual sex with another student (complainant) based on complainant's alleged incapacitation.  Respondent sanctioned petitioner by placing him on persona non grata status, barring him from the college campus, and making a notation of a disciplinary violation on petitioner's academic transcript.  This Court may review whether “the determination made as a result of a hearing held, and at which evidence was taken, pursuant to direction by law is, on the entire record, supported by substantial evidence” (CPLR 7803[4];  see Matter of Haug v. State Univ. of N.Y. at Potsdam, 149 A.D.3d 1200, 1201, 51 N.Y.S.3d 663 [3d Dept. 2017] ).  “Substantial evidence” is defined as “such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact” (Matter of Ridge Rd. Fire Dist. v. Schiano, 16 N.Y.3d 494, 499, 922 N.Y.S.2d 249, 947 N.E.2d 140 [2011] ).  We conclude that respondent's determination that the complainant lacked the ability to consent because of her incapacitation is not supported by substantial evidence.  The complainant's testimony at the disciplinary hearing contradicted her version with respect to the sequence of events made in her statement to the Buffalo Police Department, which statement was the most contemporaneous to the incident.  Moreover, the affidavit and testimony of the witness who was with the complainant the morning following the incident was consistent with the complainant's earlier version of the sequence of events, which establishes that she could not have been incapacitated at the time of the incident.  Thus, considering the record as a whole, respondent's determination is not supported by substantial evidence and must be annulled (see 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 N.Y.2d 176, 181, 408 N.Y.S.2d 54, 379 N.E.2d 1183 [1978] ).

It is hereby ORDERED that the determination is unanimously annulled without costs, the petition is granted, and respondent is directed to expunge all references to this matter from petitioner's school record.

Memorandum: