SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

1180 

TP 15-00674 

PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, VALENTINO, AND WHALEN, JJ. 

 

IN THE MATTER OF JAMES E. BUDD, PETITIONER, 

V MEMORANDUM AND ORDER

STATE UNIVERSITY OF NEW YORK AT GENESEO, 

RESPONDENT. 

 

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. 

 

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.

Memorandum: Petitioner commenced this CPLR article 78

proceeding, transferred to this Court pursuant to CPLR 7804 (g),

seeking to annul the determination of respondent to expel him as an

undergraduate student. Petitioner on four prior occasions had been

subject to discipline, including a year-long suspension, for violating

respondent’s Student Code of Conduct (Code). He was subsequently

expelled after respondent determined that he violated two sections of

the Code, one proscribing physical assaults and a second prohibiting

deliberate incitement of others to engage in Code-violating conduct. 

At the hearing on those charges, respondent relied in pertinent part

on a police report and supporting depositions describing how

petitioner tackled a man to the ground, pursued the man to a nearby

apartment with other students, and punched the man in the face. 

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 AD2d

992, 993). A public university such as respondent must “provide its
-2- 1180 

TP 15-00674 

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 AD2d 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 AD2d 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 AD2d 297, 304, affd 43 NY2d 706).

We reject petitioner’s contention that respondent’s written

determination denied him due process by failing to set forth detailed

factual findings with respect to his violation of the Code’s

“deliberate incitement” provision. “In a disciplinary proceeding at a

public institution of higher education, due process entitles a student

accused of misconduct to a statement detailing the factual findings

and the evidence relied upon by the decision-maker in reaching the

determination of guilt” sufficient “to permit the student to

effectively challenge the determination in administrative appeals and

in the courts and to ensure that the decision was based on evidence in

the record” (Matter of Boyd v State Univ. of N.Y. at Cortland, 110

AD3d 1174, 1175 [internal quotation marks omitted]). In our view,

respondent’s determination, which described the evidence on which

respondent relied and described petitioner’s deliberate incitement of

other students to join his pursuit and engage in an altercation,

satisfies that standard. 

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.
-3- 1180 

TP 15-00674 

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 F2d 697, 701, cert denied 420

US 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). 

Entered: November 20, 2015 Frances E. Cafarell

Clerk of the Court