IN RE: JAMES E. BUDD

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Supreme Court, Appellate Division, Fourth Department.

IN RE: JAMES E. BUDD, PETITIONER, v.

TP 15–00674

Decided: November 20, 2015

PRESENT:  CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. LAW OFFICE OF PETER K. SKIVINGTON PLLC, GENESEO (DANIEL R. MAGILL OF COUNSEL), FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (BRIAN D. GINSBERG OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

STATE UNIVERSITY OF NEW YORK AT GENESEO,

RESPONDENT.

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by an order of the Supreme Court, Livingston County [Robert B. Wiggins, A.J.], entered April 17, 2015) to review a determination of respondent.  The determination, among other things, expelled petitioner as a student at the State University of New York at Geneseo.

It is hereby ORDERED that the determination is unanimously confirmed without costs.

Our review of respondent's determination “is limited to determining whether the university substantially adhered to its own published rules and guidelines for disciplinary proceedings so as to ascertain whether its actions were arbitrary or capricious” (Matter of Rensselaer Socy. of Engrs. v Rensselaer Polytechnic Inst., 260 A.D.2d 992, 993).  A public university such as respondent must “provide its students with the full panoply of due process guarantees ․ [, which] requires that [students] be given the names of the witnesses against them, the opportunity to present a defense, and the results and finding of the hearing” (Nawaz v State Univ. of N.Y. Univ. at Buffalo School of Dental Medicine, 295 A.D.2d 944, 944 [internal quotation marks omitted] ).

Here, the record demonstrates that respondent “substantially adhered to its grievance procedures and that its determination is neither arbitrary nor capricious” (Matter of Krysty v State Univ. of N.Y. at Buffalo, 39 AD3d 1220, 1220), and that petitioner was provided with the “full panoply of due process guarantees” to which he was entitled (Nawaz, 295 A.D.2d at 944).  We reject petitioner's contention that respondent's failure to provide him certain documents through prehearing discovery denied him due process.  It is clear from the record that petitioner possessed the relevant documents, and therefore he was not prejudiced by any failure on the part of respondent to provide those documents to him (see generally Matter of Kaur v New York State Urban Dev. Corp., 15 NY3d 235, 259–261).  Contrary to petitioner's further contention, he was not deprived of due process by any improper combination of roles of the hearing chairperson (see Matter of Amos v Board of Educ. of Cheektowaga–Sloan Union Free Sch. Dist., 54 A.D.2d 297, 304, affd 43 N.Y.2d 706).

Petitioner contends that he was denied due process during his administrative appeal because the determination of that appeal improperly relied on documents concerning his “past conduct record” that were not part of the administrative record.  Petitioner also contends that those documents should be stricken from the record.  We reject both contentions.  The Code directs that “an appeal shall be limited to review of the verbatim record of the initial review ․ and supporting documents ” (emphasis added) and, because the Code also directs that “[a] student's past conduct record shall be considered in the determination of appropriate sanctions,” we conclude that the challenged documents are the type of “supporting documents” that were properly reviewed as part of petitioner's administrative appeal.

Finally, we reject petitioner's further contention that he was denied due process because his disciplinary hearing consisted solely of hearsay evidence and he was denied the opportunity to confront live witnesses.  “[T]he rights at stake in a school disciplinary hearing may be fairly determined upon the ‘hearsay’ evidence of school administrators charged with the duty of investigating the incidents” (Boykins v. Fairfield Bd. of Educ., 492 F.2d 697, 701, cert denied 420 U.S. 962), and “[t]he lack of confrontation [does] not violate the [Code], which provide[s] for a nonadversarial fact-finding hearing ‘without being unnecessarily formal or legalistic’ “ (Matter of Ebert v. Yeshiva Univ., 28 AD3d 315, 316).

Frances E. Cafarell

Clerk of the Court