LUSARDI v. STATE UNIVERSITY OF NEW YORK AT BUFFALO SEAS SEAS SEAS SEAS ECE ECE ECE ECE

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

Matter of Christopher M. LUSARDI, Petitioner-Appellant, v. STATE UNIVERSITY OF NEW YORK AT BUFFALO, David J. Triggle (Vice Provost for Graduate Education and Research), James J. Whalen (Chair, Department of Electrical and Computer Engineering), T.J. Mountziaris (SEAS Grievance Committee), C. Drury (SEAS Grievance Committee), J. Atkinson (SEAS Grievance Committee), Mary Saroka (SEAS Grievance Committee), Ozan Tonguz (ECE Grievance Committee), Chunming Qiao (ECE Grievance Committee), Nihan Mahaptra (ECE Grievance Committee), Kris Shindler (ECE Grievance Committee) and Andres Soom (Associate Dean for Research and Graduate Education), Respondents-Respondents.

Decided: June 08, 2001

PRESENT:  PIGOTT, JR., P.J., PINE, HURLBUTT, SCUDDER and BURNS, JJ. Kevin J. Bauer, for petitioner-appellant. Frank Brady, for respondents-respondents.

Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, reinstatement in the PhD program of the Department of Electrical and Computer Engineering (ECE) at respondent State University of New York at Buffalo.   Supreme Court properly dismissed the petition.   Petitioner contends that the determination to dismiss him from the program after he failed to pass the qualifying examination on two separate occasions was arbitrary and capricious because he was misled by a faculty member concerning whether a certain topic would be covered on the examination.   According the appropriate deference to the determination of an educational institution with respect to the academic performance of its student (see, Matter of Susan M. v. New York Law School, 76 N.Y.2d 241, 245-246, 557 N.Y.S.2d 297, 556 N.E.2d 1104;  Matter of Olsson v. Board of Higher Educ., 49 N.Y.2d 408, 413, 426 N.Y.S.2d 248, 402 N.E.2d 1150;  Matter of Ratigan v. Daemen Coll., 273 A.D.2d 891, 710 N.Y.S.2d 267), we conclude that the determination is neither arbitrary nor capricious.   Even assuming, arguendo, that the communication from the faculty member was ambiguous, we conclude that respondents demonstrated that the list of subjects to be covered on the examination was posted in three places in the ECE Department and was e-mailed to all students in advance of the examination.

Judgment unanimously affirmed without costs.

MEMORANDUM: