IN RE: KRISTEN PONICHTERA

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Supreme Court, Appellate Division, Fourth Department.

IN RE: KRISTEN PONICHTERA, PETITIONER, v. STATE UNIVERSITY OF NEW YORK AT BUFFALO, RESPONDENT.

TP 16–00608

Decided: April 28, 2017

PRESENT:  WHALEN, P.J., LINDLEY, DEJOSEPH, NEMOYER, AND CURRAN, JJ. FRANK M. BOGULSKI, BUFFALO, FOR PETITIONER. ERIC T. SCHNEIDERMAN, ATTORNEY GENERAL, ALBANY (KATE H. NEPVEU OF COUNSEL), FOR RESPONDENT.

MEMORANDUM AND ORDER

Proceeding pursuant to CPLR article 78 (transferred to the Appellate Division of the Supreme Court in the Fourth Judicial Department by order of the Supreme Court, Erie County [Frederick J. Marshall, J.], entered April 14, 2016) to review a determination of respondent.  The determination dismissed petitioner from the Doctor of Nursing Practice program.

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

Moreover, where, as here, “a university, in expelling a student, acts within its jurisdiction, not arbitrarily but in the exercise of an honest discretion based on facts within its knowledge that justify the exercise of discretion, a court may not review the exercise of its discretion” (Matter of Carr v. St. John's Univ., N.Y., 17 A.D.2d 632, 634, affd 12 N.Y.2d 802).  We conclude that the determination of respondent, which found petitioner guilty of omitting from her applications for admission into respondent's program information concerning her prior enrollment at and dismissal from a graduate degree program at Gannon University, is not arbitrary and capricious or an abuse of discretion and is rationally supported by the record (see Matter of Katz v Board of Regents of Univ. of the State of N.Y., 85 AD3d 1277, 1281, lv. denied 17 NY3d 716;  see generally Matter of Susan M. v New York Law Sch., 76 N.Y.2d 241, 246;  Matter of Hyman v. Cornell Univ., 82 AD3d 1309, 1310;  Matter of Warner v. Elmira Coll., 59 AD3d 909, 910–911;  Matter of Lusardi v State Univ. of N.Y. at Buffalo, 284 A.D.2d 992, 992, lv denied 97 N.Y.2d 608).

We further conclude that the penalty of dismissal from the academic program was not “so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness” (Matter of Pell v Board of Educ. of Union Free Sch. Dist. No. 1 of Towns of Scarsdale & Mamaroneck, Westchester County, 34 N.Y.2d 222, 233;  see Matter of Quercia v. New York Univ., 41 AD3d 295, 297).  In light of our determination, we do not consider petitioner's remaining contentions.

Frances E. Cafarell

Clerk of the Court