IN RE: the Application of Kelly Blacker (2026)

Petitioner, Kelly Blacker ("Petitioner"), moves for relief pursuant to Civil Practice Law and Rules ("CPLR") Article 78 seeking to annul and vacate the determination made by Mercy University and Susan L. Parish (collectively, "Respondents"), which terminated Petitioner's employment upon a finding of wrongdoing. Petitioner further seeks reinstatement with full back pay and benefits, as well as her costs and fees for litigation. Respondents previously moved to dismiss the petition, which the Court denied (see NYSCEF Doc. No. 37). Respondents have answered, and Petitioner has filed a reply. For the reasons set forth below, the Court now grants the petition to the extent indicated.

The Court read and considered the following papers electronically filed via NYSCEF in making its decision:

• Notice of Petition, Verified Petition with Exhibits A-F, Affidavit of Kelly Blacker with Exhibits A-D, Affirmation of Michael A. Starvaggi, Esq. with Exhibits A-F, Memorandum of Law, Exhibits 1-2, Request for Judicial Intervention, and Affidavits of Service (NYSCEF Doc. Nos. 1-26).

• Notice of Cross-Motion to Dismiss, Affidavit of Kristin C. Greenwood with Exhibit 1, and Memorandum of Law (NYSCEF Doc. Nos. 29-32).

• Affirmation of Michael A. Starvaggi, Esq. in Opposition to Cross-Motion to Dismiss (NYSCEF Doc. No. 35).

• Memorandum of Law in Further Support of Cross-Motion to Dismiss (NYSCEF Doc. No. 36).

• Verified Answer, Affirmation of Kristin C. Greenwood with Exhibits A-I, Affirmation of Victor Petenkemani with Exhibits A-G, and Affirmation of Denise Stefano with Exhibits A-D (NYSCEF Doc. Nos. 55-78).

• Reply Affirmation (NYSCEF Doc. No. 79).

Relevant Facts

Petitioner was employed by Mercy University (the "University") from the spring of 1996 until her termination on April 11, 2025, and served for most of that time as an assistant professor of accounting (see Affidavit of Kelly Blacker ["Blacker Aff."] [NYSCEF Doc. No. 9], ¶ 10). Petitioner, who has a Certified Public Accountant ("CPA") license, had previously worked for a private accounting firm before being hired by the University (see id., ¶¶ 8-9).

In July 2024, Denise Stefano, the Chair of the University's accounting program ("Prof. Stefano"), learned that the New York State Education Department ("NYSED") did not list Petitioner as having been registered since 1997 (see Affirmation of Denise Stefano ["Stefano Aff."] [NYSCEF Doc. No. 74], ¶ 12). This information came to light as Prof. Stefano was confirming the credentials of faculty members in preparation for a state filing (see id., ¶¶ 7, 12). As Petitioner had identified herself as a CPA on her curriculum vitae ("CV") with no notation about registration status, and had told Prof. Stefano that she was registered, Prof. Stefano brought this finding to the attention of Petitioner and Victor Petenkemani, the Dean of the University's School of Business ("Dean Petenkemani") (see id., ¶¶ 10, 13). Petitioner responded, in sum and substance, that she had her CPA license but did not understand the significance of being registered (see id., ¶ 14, Ex. A [NYSCEF Doc. No. 75]).¹ Petitioner further expressed that she did not have time to look into the matter and asked if Prof. Stefano could simply list Petitioner as "not registered" in the University's filing (see id., ¶ 19). Petitioner subsequently obtained from NYSED a registration certificate that was valid through October 31, 2025; accordingly, NYSED then listed Petitioner as being registered (see Ex. B to Blacker Aff. [NYSCEF Doc. No. 11]).

On November 14, 2024, a meeting was held between Petitioner and Dean Petenkemani, where Petitioner provided the registration certificate (see Blacker Aff., ¶ 22). Dean Petenkemani requested that Petitioner provide proof of her continuing professional education ("CPE") compliance for the entire duration of her employment (see id., ¶ 24; Affirmation of Victor Petenkemani ["Petenkemani Aff."] [NYSCEF Doc. No. 66], ¶ 29).

By email on December 2, 2024, Kristin C. Greenwood, the University's Interim Provost ("Provost Greenwood"), gave formal notice of the intention to bring disciplinary action against Petitioner (see Affirmation of Kristin C. Greenwood ["Greenwood Aff."] [NYSCEF Doc. No. 56], ¶ 26; Ex. E [NYSCEF Doc. No. 61]). The notice referenced Petitioner's having not been registered between 1997 and October 2024 and listed the alleged grounds for discipline, which included neglect of duty, falsification of credentials, and violation of the University's Code of Ethical Conduct (see id.).

On December 10, 2024, Petitioner and her counsel attended a meeting with Provost Greenwood and other University officials (see Blacker Aff., ¶ 35; Greenwood Aff., ¶ 27). Petitioner was again asked to provide proof of CPE compliance for the duration of her employment, which Petitioner did not provide (see id.). Petitioner explained that she did not understand that she was required to reregister triennially (see Greenwood Aff., ¶ 29).

By letter dated December 17, 2024, Provost Greenwood gave Petitioner formal notice of dismissal (see Greenwood Aff., ¶ 32; Ex. F [NYSCEF Doc. No. 62). The letter summarized the prior correspondence and meetings between Petitioner and University officials, and it detailed the three charges alleged against Petitioner: (1) fraudulently identifying yourself as a "CPA" despite not being registered; (2) teaching accounting courses without an active CPA license; and (3) failing to provide truthful information to university officials (see id.). The letter concluded by advising Petitioner of her right to grieve the matter within 60 days (see id.).

I. The Grievance Committee Report

Petitioner, through counsel, filed a Notice and Statement of Grievance, setting forth Petitioner's defenses to the University's charges and requesting that the dismissal decision be reversed and Petitioner reinstated (see Blacker Aff., ¶ 48; Ex. D to Petition [NYSCEF Doc. No. 5]). A hearing before the Faculty Grievance Committee (the "Committee") was conducted on March 18, 2025 (see Blacker Aff., ¶ 48). The Committee heard evidence from witnesses for Petitioner and for the University, including Prof. Stefano and Dean Petenkemani (see id.).

Thereafter, on approximately April 3, 2025, the Committee issued a seven-page report detailing its findings of fact, conclusions, and recommendations (Ex. E to Petition [NYSCEF Doc. No. 6). In brief, the Committee found that the University's allegation that Petitioner misrepresented herself as a CPA was unfounded, and that the University misinterpreted NYSED guidance as a legal mandate, failed to provide due process, and failed to demonstrate any resultant harm from Petitioner's lapse in registration (see id.).

The Committee report noted that, pursuant to NYSED regulations, CPA licensure is for life, unless suspended, revoked, or annulled for misconduct, and that triennial registration is an administrative requirement applicable to practicing CPAs (see id.). The Committee found that the University failed to cite any binding law or University policy requiring accounting professors to maintain active CPA registrations to teach, and in fact employed other unregistered CPA faculty members as well as non-CPA instructors (see id.). The report further found that Dean Petenkemani's and Provost Greenwood's scrutiny of Petitioner's CPE credits encroached upon NYSED's regulatory function (see id.).

Summarizing the witness testimony, the Committee report noted that Prof. Stefano testified that Petitioner's situation did not constitute misconduct and could have been remediated, and that lapses in CPA registration were not uncommon and are typically resolved administratively (see id., p. 4). Dean Petenkemani testified, according to the report, that his actions were based upon his understanding of information provided to him by Prof. Stefano, and such reliance was used to justify dismissing Petitioner (see id.).

As to the University's disciplinary procedures, the Committee found that Petitioner was not given any prior warnings or disciplinary action before dismissal was pursued, and that Petitioner did not have an opportunity to rectify the alleged issues (see id., pp. 3, 5).

The Committee determined that the University failed to meet its burden to present sufficient evidence to support its claims against Petitioner. The Committee report stated the following conclusions:

1. The University committed procedural errors during the course of the investigation.

2. The sanction imposed was disproportionate to the nature of the alleged infraction, even under the University's own interpretation of the facts.

3. The termination decision was made against the weight of the evidence, as assessed by the Committee.

(id., p. 6).

Per the report, the Committee voted unanimously to sustain Petitioner's grievance and recommended that Petitioner be reinstated to her faculty position, that all records of termination be expunged, and that the University provide a statement acknowledging its procedural missteps and review its internal disciplinary procedures (see id., p. 7).

II. The President's Final Determination

On April 11, 2025, Respondent Parish, the University President, sent an email to Petitioner that read as follows:

Dear Ms. Blacker,

I received the report [from] the faculty committee related to your grievance.

The commission of fraud by a faculty member is a grave matter that imperils the University's funding, reputation, and ability to continue operating in the State of New York. Furthermore, it demonstrates a lack of respect for our students that is abhorrent and contrary to our mission. I uphold the decision to terminate your employment. I note the following passage from our Faculty Handbook:

[Faculty] hold before them the best scholarly standards of their disciplines. They demonstrate respect for the student as an individual and adhere to their proper roles as intellectual guides and counselors. They make every reasonable effort to foster honest academic conduct[.]

I understand this decision is not what you were hoping to hear, but I wish you the best in the future.

Sincerely,

Susan Parish

(Ex. F to Petition [NYSCEF Doc. No. 7]).

By this proceeding, Petitioner alleges that the President's decision was arbitrary and capricious, without sound basis in reason, and without regard to the facts; that the penalty of termination was shocking to the conscience; and that the University failed to follow its own procedural standards as set forth in the Faculty Handbook.

Discussion

I. Standard of Review

In an Article 78 proceeding in the nature of mandamus to review, the Court must ascertain whether the challenged determination was arbitrary and capricious, affected by an error of law, made in violation of lawful procedure, or an abuse of discretion (see CPLR § 7803[3]; Matter of Scherbyn v Wayne-Finger Lakes Bd. of Coop. Educ. Servs., 77 NY2d 753, 757-58 [1991]; New York City Health and Hosp. Corp. v McBarnette, 84 NY2d 194, 204 [1994]). "An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts" (Matter of Peckham v. Calogero, 12 NY3d 424, 431 [2009]; see also Matter of Pell v. Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 NY2d 222, 231 [1974]). "If the court finds that the determination is supported by a rational basis, it must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency" (Matter of Peckham, 12 NY3d at 431; see also McCollum v City of New York, 184 AD3d 838, 839-40 [2d Dept. 2020]).

"Courts have a 'restricted role' in reviewing determinations of colleges and universities A determination will not be disturbed unless a school acts arbitrarily and not in the exercise of its honest discretion, it fails to abide by its own rules or imposes a penalty so excessive that it shocks one's sense of fairness" (Matter of Aryeh v St. John's Univ., 154 AD3d 747, 747-748 [2d Dept 2017], quoting Matter of Powers v St. John's Univ. Sch. of Law, 25 NY3d 210, 216 [2015]. See also Keles v Hultin, 144 AD3d 987, 988 [2d Dept 2016]; Matter of Kamila v Cornell Univ., 182 AD3d 692, 693 [3d Dept 2020]). "[J]udicial review of a determination of an educational institution with respect to the appointment, promotion and retention of faculty is limited In reviewing such a determination, a court, which must not substitute its judgment for that of the university, must determine whether the determination was made in violation of the university's rules, or is arbitrary and capricious" (Matter of Fruehwald v Hofstra Univ., 82 AD3d 1233, 1234 [2d Dept 2011] [internal citations and quotation marks omitted]. See also Matter of Lai v St. John's Univ., 155 AD3d 627, 628 [2d Dept 2017]; Matter of Lipsky v New York Inst. of Tech., 69 AD3d 725, 725-726 [2d Dept 2010]).

Judicial review is limited to the grounds set forth by the agency at the time the determination was made (see Matter of Scherbyn, 77 NY2d at 758; Matter of 195 N. Vil. Ave., LLC v 195 Apts., Inc., 233 AD3d 671, 673 [2d Dept 2024]). Where a determination letter is issued, a court must limit its review to the grounds stated in such letter, and "[i]f those grounds are inadequate or improper, the court is powerless to affirm the administrative action by substituting what it considers to be a more adequate or proper basis" (Matter of Scherbyn, 77 NY2d at 758 [internal quotation marks omitted]). If the grounds set forth by the agency are inadequate or improper, a court may not find a rational basis by considering additional information in affidavits or exhibits submitted in response to an Article 78 petition (see Matter of Scanlan v Buffalo Pub. School Sys., 90 NY2d 662, 678 [1997]).

II. The President's Final Determination was Arbitrary and Capricious

Based upon the evidence submitted by the parties, the Court is hard-pressed to find that Respondent Parish's determination was anything other than arbitrary and capricious. By the University's own standards, a final decision that goes against the Committee's decision would be an extraordinary action; the Faculty Handbook states that "[a]cceptance of the Committee's decision would normally be expected" (see Ex. A to Petition [NYSCEF Doc. No. 2], § 5.6.4.6). As such, a wholesale rejection of the Committee's decision should include, at minimum, some explanation for the decision. To be sure, Respondents correctly contend that the Faculty Handbook does not require a detailed statement of rationale in the President's final determination. However, where the President does not accept the Committee's decision, and there is no explanation provided, there is no way for the Court to reasonably determine that the final decision had a sound basis in reason or was made with regard to the facts (see Matter of Peckham, 12 NY3d at 431).

Here, Respondent Parish's decision stated, "I uphold the decision to terminate your employment," but contained no explanation as to why the Committee's decision was not acceptable. Going further, the decision makes no mention of any of the specific issues or allegations related to this matter; it refers, in only general terms, to the consequences of the commission of fraud by faculty members (see Ex. F to Petition).

The Court is constrained to limit its review to the rationale or grounds, if any, set forth in Respondent Parish's decision (see Matter of Scherbyn, 77 NY2d at 758; Matter of Scanlan, 90 NY2d at 678), but the Court must note that an affirmation from Respondent Parish, the one person who could shed any light on the decision, was not submitted with Respondents' answering papers. Accordingly, the Court can find no basis for the assertion in Respondents' answer that Respondent Parish in fact conducted a full independent review, as required by the Faculty Handbook, before making the final determination (see Answer [NYSCEF Doc. No. 55], ¶ 160). Likewise, Respondents' assertion that the President "articulated a rational basis for deviating from the [Committee's] recommendation, finding that the nature of Petitioner's misconduct provided a reasonable basis for termination" is unsupported by the record (see Answer, ¶ 192).

Further, the Court is not persuaded by Respondents' reliance on Matter of Dalmolen v Elmira Coll., 279 AD2d 929 (3d Dept 2001). The college's handbook at issue in Dalmolen expressly required the President to state "clear and compelling reasons" for not accepting the Committee's decision, and the Third Department, based upon review of the President's final determination, found it to have been "based upon the exercise of honest discretion after a full review of the relevant, operative facts" (see id. at 933-934). Here, on the other hand, and as explained above, this Court has no way of determining whether Respondent Parish exercised her honest discretion and conducted a review of the matter before issuing the final determination.

A. The Penalty of Dismissal is Shocking to One's Sense of Fairness

To the extent Respondent Parish meant to merely rely upon the grounds stated in Provost Greenwood's prior notice of dismissal, the Court would be left to conclude that the penalty imposed upon Petitioner was shocking to one's sense of fairness and an abuse of discretion, as explained further below. "An administrative penalty must be upheld unless it is so disproportionate to the offense as to be shocking to one's sense of fairness, thus constituting an abuse of discretion as a matter of law" (Matter of Sahara Constr. Corp. v New York City Off. of Admin. Trials & Hearings, 242 AD3d 998, 1000 [2d Dept 2025] [internal citation and quotation marks omitted]). "A result is shocking to one's sense of fairness if the sanction imposed is so grave in its impact on the individual or individuals subject to it that it is disproportionate to the misconduct, incompetence, failure or turpitude of the individual (id. See also Matter of Kelly v Safir, 96 NY2d 32, 38 [2001]; Matter of Alexander v Rhea, 90 AD3d 1041, 1041-1042 [2d Dept 2011]).

1. Charge I

As to "Charge I" in the notice of dismissal ("Fraudulently Identifying Yourself as a 'CPA' Despite Not Being Registered"), the Court can find no evidence in the record of fraudulent action by Petitioner. Fraud involves an intentional or reckless act of deception—a "knowing misrepresentation or knowing concealment of a material fact made to induce another to act to his or her detriment" or a "reckless misrepresentation made without justified belief in its truth to induce another person to act" (Black's Law Dictionary [12th ed 2024], fraud. See also Matter of Felder v Storobin, 100 AD3d 11, 16 [2d Dept 2012]). Plaintiff's use of the CPA designation on her CV and on other employment-related paperwork does not rise to that level.

a. Relevant Statutes and Regulations

A review of the relevant statutes and regulations is appropriate at this point. First, professional licenses issued by NYSED, which includes the CPA license, "shall be valid during the life of the holder unless revoked, annulled or suspended by the board of regents " (Education Law ["EL"] § 6502[1]). In addition to being licensed, a CPA who practices public accountancy must register with NYSED on a triennial basis. "A licensee must register with the department and meet the requirements prescribed in section 3-503 of the general obligations law to practice in this state" (EL § 6502[1] [emphasis added]). As part of the triennial registration, licensed CPAs must pay a registration fee and comply with the CPE requirements as set forth in EL § 7409(2) (see EL §§ 6502[3], 7409[1][a]). A licensed CPA who does not practice professionally in New York State and opts not to register may so advise NYSED, and this will exempt the individual from paying late fees for failing to timely register and from the CPE requirements (see EL §§ 6502[4], 7409[1][c]).

The penalty for failing to comply with the CPE requirements is the withholding of a triennial registration certificate, meaning that the individual may not practice public accountancy unless and until the requirements are met and a registration or conditional registration certificate is issued (see EL § 7409[1][a], [2][c]). NYSED may issue a conditional registration to a CPA who fails to meet the CPE requirements but agrees to make up any deficiencies and take any additional courses that NYSED may require (see EL § 7409[3]).

Here, there is no dispute that Petitioner received her CPA license in 1990 and that her license has not been revoked, annulled, or suspended. Accordingly, Petitioner's CPA license has remained valid at all relevant times (see EL § 6502[1]). Further, as the definition of the practice of public accountancy does not include teaching accounting courses (see EL § 7401; 8 NYCRR § 70.1), the law does not require Petitioner to triennially register in order to teach (see EL § 6502[1]).²

The issue of Petitioner's usage of the CPA designation is less straightforward. A licensed CPA is statutorily authorized to use the professional title of "certified public accountant" or the designation of CPA (see EL §§ 6503[2],³ 7402 ["Only a person licensed or otherwise authorized to practice under this article shall practice public accountancy or use the title "certified public accountant" or the designation CPA "] [emphasis added]). Notably, given the "licensed or " language, the statutory authorization to use said title and designation is granted to licensed CPAs and does not expressly hinge on currently active registration (see id.).

However, changes to the Rules of the Board of Regents ("Regents Rules"), effective July 26, 2009, made it unprofessional conduct to use the title of "certified public accountant" or the designation of CPA without maintaining active registration (see 8 NYCRR § 29.10[a][14]). And any unprofessional conduct under the Regents Rules is, in turn, considered professional misconduct under the Education Law (see EL § 6509[9]). Importantly, this provision of the Regents Rules was not added until July 2009 (see Proposed Rulemaking, NY St Reg, July 1, 2009, at 7), roughly halfway through Petitioner's employment at the University. In other words, for the first 13 years of Petitioner's employment at the University, or nearly half of her total time there, the Regents Rules did not expressly consider the use of the CPA designation by an unregistered CPA to be a form of misconduct. Petitioner may have been negligent in not being apprised of the regulatory change in 2009, but under a reasonable view of the facts, this mistake does not rise to the level of fraud.

Moreover, it is not clear whether unprofessional conduct under the Regents Rules, or professional misconduct under the Education Law, has any application to a profession other than the practice of public accountancy. Thus, it is not clear that this would have any relevance to Petitioner's teaching role.

In any event, a finding of professional misconduct would be a regulatory matter for NYSED to adjudicate. It requires a complaint made to NYSED and compliance with a panoply of due process procedures, pursuant to EL § 6510. Where someone is accused of a violation that is minor or technical in nature, such violation may be resolved with an administrative warning (see EL § 6510[2][a]). In other circumstances, the penalty for someone found guilty of professional misconduct after a hearing would depend upon the severity of the violation and can range from a fine, a requirement to attend additional training or to perform public service, up to suspension, revocation, or annulment (see EL § 6511). Here, there is no evidence in the record before the Court that a complaint of professional misconduct was ever made against Petitioner.

2. Charge II

As to "Charge II" ("Teaching Accounting Courses Without an Active CPA License"), it bears repeating that under the Education Law, licensed CPAs must maintain active registration to practice in New York State, and the practice of public accountancy does not include teaching accounting courses (see EL §§ 6502[1], 7401; 8 NYCRR § 70.1). Thus, there is no statutory requirement that a CPA must be currently registered in order to teach.

Respondents relied upon informal guidance provided on NYSED's website, which states that "[a] CPA who teaches a college level accounting course must be in compliance with the CPE requirements and maintain an active registration."⁴ However, this guidance is not consistent with the statutory requirements set forth in the Education Law and is not legally binding. And as Petitioner has pointed out, the website page where this guidance is found also contains the following disclaimer, in bold print, at the top of the page:

Law, rules and regulations, not guidance, specify the requirements for practice and violating them constitutes professional misconduct. Not adhering to this guidance may be interpreted as professional misconduct only if the conduct also violates pertinent law, rules and regulations.

(id.).4 Respondents did not cite any statutes, regulations, or case law as authority for their position that a licensed CPA must be currently registered in order to teach. Informal guidance provided on NYSED's website does not trump the law.

Furthermore, it is difficult for Respondents to reasonably argue that a CPA who teaches accounting courses must maintain active registration when, at the same time, Respondents concede that the University employs other such instructors who are not actively registered with NYSED (see Petenkemani Aff., ¶¶ 36-37; Stefano Aff., ¶¶ 28-29).

3. Charge III

As to "Charge III" ("Failing to Provide Truthful Information to University Officials"), Provost Greenwood correctly alleged that Petitioner told Prof. Stefano, by email on July 7, 2024, that she was registered. That representation by Petitioner was not true. However, Petitioner also told Prof. Stefano, by email on July 16, 2024, that "I have my [CPA] license. I am not sure [what] that means to be registered." Petitioner clearly did not understand or appreciate the distinction between being licensed and being actively registered. The Court does not excuse Petitioner's apparent ignorance of the registration procedures for CPAs; however, the evidence before the Court leads to the conclusion that this was an unknowing mistake on Petitioner's part.

Without opining on the propriety of any disciplinary action, the Court finds that the penalty of termination as the first and only course of action pursued by the University is shocking to one's sense of fairness under the circumstances. Moreover, there were other, lesser forms of discipline at the University's disposal, as described in the following section.

III. The University's Disciplinary Procedures

As Petitioner alleges that Respondents failed to abide by their own procedural standards, the Court will next review the relevant procedures as found in the University's Faculty Handbook (Ex. A to Petition). An employee accused of violating the University's code of ethical conduct, among other kinds of violations or misconduct, is entitled to an initial meeting with the Provost or Dean, and such meeting should be conducted with an eye towards mutual settlement and avoidance of formal disciplinary action (see id. at § 5.5.1). Following the initial meeting, the employee must be provided with written notice of intention to bring disciplinary action, detailing all charges and alleged violations (id. at § 5.5.4.1). Within seven days after receipt of the notice of intention, another meeting must be held between the employee and the Provost or Dean, where the employee may respond to the allegations and present any evidence in his or her favor (id. at § 5.5.4.3). The employee may be represented by counsel at this meeting, and efforts should again be made toward informal resolution (id.).

Within seven days after the second meeting described above, the Provost or Dean must notify the employee in writing of either commencement of disciplinary action or withdrawal of the charges (id. at § 5.5.4.4). This notice must detail the charges and alleged violations, it must state the proposed sanction, and it must also advise the employee of the right to file a grievance (id.).

If deemed necessary, dismissal for cause "should occur only in exceptional circumstances and rarely as the first course of action" (id. at § 5.5.3). The employee must be sent a notice of dismissal at least 30 days before the stated dismissal date (id. at § 5.5.6). In the event the employee pursues a grievance (see below), the dismissal date will be extended as necessary for completion of the grievance proceedings (id.).

Within 60 days after receipt of the notice of dismissal, the employee may file a request for a formal grievance hearing (id. at § 5.6.4.1). The request must state the basis for the grievance and must be accompanied by evidence supporting the grievance and a list of any witnesses (id.). The University must also submit evidence and its list of witnesses, if any, and all records from both parties will be sent to the grievance committee (id.). A formal hearing must be conducted within 20 days after the grievance is filed (id. at § 5.6.4.3). In matters involving dismissal, the burden of proof, by a preponderance of the evidence considered as a whole, rests with the University (id. at § 5.6.4.4[1]). Following the hearing, the grievance committee must deliberate and decide, by majority vote, whether to sustain or dismiss the grievance and recommend the remedy, if any, that should be imposed (id. at § 5.6.4.6). The grievance committee must prepare a detailed written report within 10 days after the hearing (id.).

Upon receipt of the grievance committee's report and recommendations, the University President must independently review the evidence and position statements and must make the final determination in writing within 10 days (id.). While the President has the final say, "[a]cceptance of the Committee's decision would normally be expected" (id.).

Here, although Petitioner was given the meetings and written notifications required under the foregoing procedures, the evidence in the record before the Court indicates that Respondents failed to act in a manner that effectuated the purpose and intent of the Faculty Handbook.

First, it appears from the evidence that Petitioner's dismissal was a foregone conclusion at the outset of this process. The two required meetings are intended to be conducted, where possible, with the goal of informal resolution and avoidance of disciplinary action. At the time of Petitioner's initial meeting with Dean Petenkemani on November 14, 2024, it was already clear that Petitioner had not been actively registered since 1997. Prof. Stefano had confirmed as much from NYSED and the CPAverify search tool, and Petitioner had admitted that she did not even understand what it meant to be registered. Accordingly, demanding that Petitioner provide proof of registration or of CPE compliance from the entirety of her employment with the University was, at best, futile, and at worst, setting Petitioner up for failure. The only bona fide resolution that could have been achieved would have been one directed at resolving Petitioner's registration status going forward from that point. And Petitioner indeed provided proof that she took steps and became registered.⁵

Next, it appears that dismissal was the only course of action considered by Respondents. In his October 23, 2024, email to schedule the initial meeting with Petitioner, Dean Petenkemani merely wrote that Petitioner's holding herself out as a CPA without being registered would be "cause for disciplinary action" without mentioning what the disciplinary action would be (see Ex. D to Petenkemani Aff. [NYSCEF Doc. No. 70], p. 4). Likewise, the notice of intention to bring disciplinary action sent by Provost Greenwood merely stated that the University intended to bring disciplinary action "up to and including dismissal" (see Ex. E to Greenwood Aff. [NYSCEF Doc. No. 61]). Of course, the Faculty Handbook provides for various forms of disciplinary action, other than dismissal, that could be imposed, including a warning or reprimand, employee training, restrictions on teaching or other activities, reassignment, or suspension (see Faculty Handbook at § 5.5.2).

Dismissal for cause "should occur only in exceptional circumstances and rarely as the first course of action" (id. at § 5.5.3). It appears to the Court that dismissal was the only course of action that Respondents considered, and, as noted above, such penalty is shocking to one's sense of fairness under the circumstances.

IV. Appropriate Remedy

For all the reasons discussed above, the Court finds, pursuant to CPLR § 7803(3), that the President's determination dismissing Petitioner for cause was arbitrary and capricious, and the mode of the penalty imposed constituted an abuse of discretion.

Therefore, the Court grants the petition to the extent that the President's determination is annulled and vacated, and Petitioner shall be reinstated to the position that she had held until the April 11, 2025, dismissal, together with all benefits and seniority to which Petitioner would be entitled had she not been dismissed. Further, any and all records reflecting the dismissal shall be removed from Petitioner's personnel file maintained by the University, in accordance with § 5.5.5 of the Faculty Handbook.

Monetary damages and restitution awards are available in an Article 78 proceeding where they are "incidental to the primary relief sought by the petitioner" and are "such as [Petitioner] might otherwise recover on the same set of facts in a separate action or proceeding suable in the supreme court against the same body or officer in its or his official capacity" (CPLR § 7806). The Court finds that an award of full back pay calculated from April 11, 2025, to the date of reinstatement is incidental to the primary relief sought by Petitioner (i.e., annulment of the President's decision and reinstatement) and is an appropriate remedy under the circumstances (see Pauk v Board of Trustees of City Univ. of NY, 68 NY2d 702, 704-705 [1986]; Matter of McKernan v City of NY Civ. Serv. Commn., 121 AD2d 350, 352 [1st Dept 1986]). It is, therefore, the Court's determination that Petitioner shall be awarded full back pay calculated from April 11, 2025, together with the value of any entitled benefits lost as a result of the dismissal, as well as restitution for any out-of-pocket expenses necessitated by the dismissal.

In accordance with the foregoing, Petitioner shall submit to the Court the calculations of monetary damages and restitution to which she claims entitlement, along with proof supporting the amounts claimed. Such submission shall be made within 30 days after the date of entry of this Decision and Order. Petitioner's failure to do so may result in the entry of a judgment exclusive of damages. Within 30 days after receipt of Petitioner's submission, Respondents may submit a response detailing any of the claimed amounts that they dispute. The Court will review and consider the parties' respective submissions before rendering a final judgment.

Lastly, attorneys' fees and litigation costs are not available in an Article 78 proceeding absent a specific contractual or statutory basis or court rule, and the Court has not been presented with such a basis or rule. Therefore, Petitioner's request for attorneys' fees and costs is denied (see Matter of Smith v New York City Fire Dept., 239 AD3d 870, 872-873 [2d Dept 2025]).

The parties' remaining contentions, to the extent not rendered academic or explicitly addressed herein, have been considered and found to be unavailing.

Accordingly, for all the foregoing reasons, it is hereby

ORDERED that the petition (motion sequence #1) is granted to the extent noted above; and it is further

ORDERED that Petitioner shall file and serve her submission regarding damages, as directed above, within thirty (30) days after the date of entry of this Decision and Order, and that failure to do so may result in issuance of a judgment exclusive of damages; and it is further

ORDERED that, within thirty (30) days after service of Petitioner's submission regarding damages, Respondents shall file and serve their response, if any, as directed above.

This constitutes the Decision and Order of the Court.

Dated: April 13, 2026

White Plains, New York

HON. SHERALYN PULVER

Acting Supreme Court Justice

FOOTNOTES

1.   Petitioner explains that in her years of private practice before joining the University, the accounting firm where she worked handled all the triennial registrations for the CPAs (see Blacker Aff., ¶ 9).

2.   The Court is aware that Respondents relied upon certain informal guidance on NYSED's website that states otherwise. This is addressed further below.

3.   The phrase "[a]dmission to the practice of a profession," as used in EL § 6503, means that a license has been issued by NYSED (see EL § 6501[1]).

4.   Certified Public Accountants Scope of Practice, https://www.op.nysed.gov/professions/certified-public-accountants/professional-practice [last accessed Mar. 31, 2026].

5.   Petitioner asserts that she had submitted a Delayed Registration form to NYSED, paid all past fees for the years that were unpaid, and sent proof to NYSED of compliance with CPE requirements (see Blacker Aff., ¶ 17). While Respondents contend that this was a conditional registration contingent upon completion of CPE credits, they submit no evidence to support this contention, and Petitioner's registration certificate does not reflect that it was a conditional registration (see Ex. B to Blacker Aff. [NYSCEF Doc. No. 11).

Sheralyn Pulver, J.