IN RE: Sai BONDALAPATI (2019)

Judgment, Supreme Court, New York County (Barbara Jaffe, J.), entered on or about February 14, 2018, denying the petition to annul respondents' determination, dated June 27, 2016, which affirmed the hearing committee's suspension of petitioner for one semester upon a finding that he engaged in academic dishonesty, and dismissing the hybrid CPLR article 78 proceeding and plenary action for defamation, unanimously affirmed, without costs.

Respondents' disciplinary determination that petitioner forged an exam booklet was made in accordance with its written disciplinary policy and was rationally based and not arbitrary and capricious (see Kickertz v. New York Univ., 110 A.D.3d 268, 272, 971 N.Y.S.2d 271 [1st Dept. 2013] ).  Petitioner had ample opportunity at the hearing to defend his conduct and explain his actions.  Respondents' rejection of petitioner's explanation as not credible was not irrational.  The denial of petitioner's internal appeal also was not irrational;  respondents' written policy provided for limited grounds for appeal, none of which availed petitioner.

Petitioner's “due process” challenge is misplaced;  a student at a private university is not afforded the “full panoply” of due process rights (Cavanagh v. Cathedral Preparatory Seminary, 284 A.D.2d 360, 361, 725 N.Y.S.2d 889 [2d Dept. 2001];  Matter of Mu Ch. of Delta Kappa Epsilon v. Colgate Univ., 176 A.D.2d 11, 13, 578 N.Y.S.2d 713 [3d Dept. 1992] ).  Absent State involvement, the only issue for our review is whether respondents substantially complied with their own rules (Mu Ch., 176 A.D.2d at 13–14, 578 N.Y.S.2d 713;  see also Kickertz, 110 A.D.3d at 272, 971 N.Y.S.2d 271;  Cavanagh, 284 A.D.2d at 361, 725 N.Y.S.2d 889).  Petitioner does not dispute that the subject hearing was conducted in accordance with respondents' written disciplinary policy.

Petitioner's arguments about the sufficiency of the record before the hearing committee or on the internal appeal are without merit.

There is nothing shocking or disproportionate about the one-semester suspension imposed (see Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233, 356 N.Y.S.2d 833, 313 N.E.2d 321 [1974];  Matter of Quercia v. New York Univ., 41 A.D.3d 295, 297, 838 N.Y.S.2d 538 [1st Dept. 2007] ).

Petitioner's defamation claim was correctly dismissed because the subject statements were true (see Amato v. New York City Dept. of Parks & Recreation, 110 A.D.3d 439, 440, 973 N.Y.S.2d 29 [1st Dept. 2013] ), had not been published to any persons outside the university (see Lipsky v. Gonzalez, 39 Misc.3d 1202 [A], 2013 N.Y. Slip Op. 50439 [U], *5, 969 N.Y.S.2d 804 [Sup. Ct., Bronx County 2013] ), and were protected by a qualified common interest privilege (see Present v. Avon Prods., 253 A.D.2d 183, 187, 687 N.Y.S.2d 330 [1st Dept. 1999], lv dismissed 93 N.Y.2d 1032, 697 N.Y.S.2d 555, 719 N.E.2d 914 [1999];  Lipsky, 2013 N.Y. Slip Op. 50439[U], 39 Misc.3d 1202(A), 969 N.Y.S.2d 804, *5).  Petitioner's allegations of malice amount to little more than “mere surmise and conjecture” and are therefore insufficient to overcome this privilege (see Ashby v. ALM Media, LLC, 110 A.D.3d 459, 459, 973 N.Y.S.2d 109 [1st Dept. 2013] [internal quotation marks omitted], lv denied 22 N.Y.3d 860, 981 N.Y.S.2d 670, 4 N.E.3d 972 [2014] ).