Matter of Flores v New York Univ.

Matter of Flores v New York Univ. 2010 NY Slip Op 09077 [79 AD3d 502] December 9, 2010 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 16, 2011

In the Matter of Len Flores, Appellant,
v
New York University, Respondent.

—[*1] Lynn, Gartner & Dunne, LLP, Mineola (Kenneth L. Gartner of counsel), for appellant.

Bonnie Brier, New York (Nancy Kilson of counsel), for respondent.

Order and judgment (one paper), Supreme Court, New York County (Eileen A. Rakower, J.), entered February 22, 2010, which granted respondent University's motion to dismiss a CPLR article 78 proceeding to annul its determination expelling petitioner from its dental college for cheating, and dismissed the petition, unanimously affirmed, without costs.

The documentary evidence submitted with the petition demonstrates that, contrary to petitioner's allegations, the finding that petitioner had cheated in violation of the college's ethics code was based not just on hearsay (but see Matter of Ebert v Yeshiva Univ., 28 AD3d 315, 316 [2006]), but also on petitioner's admission that he glanced at another student's test paper. Petitioner's denial that he made such admission at any of the unrecorded interviews and hearings conducted pursuant to the college's disciplinary procedures raises an issue of credibility that is immaterial in an article 78 proceeding that, like this, does not involve a determination made as a result of a hearing mandated by law, and in any event is largely unreviewable (see Matter of Berenhaus v Ward, 70 NY2d 436, 443-444 [1987]). The penalty of expulsion without possibility of reinstatement does not shock our sense of fairness (see generally Matter of Pell v Board of Educ. of Union Free School Dist. No. 1 of Towns of Scarsdale and Mamaraneck, Westchester County, 34 NY2d 222, 233 [1974]; cf. Matter of Carr v St. John's Univ., N.Y., 17 AD2d 632, 634 [1962], affd 12 NY2d 802 [1962]). We have considered petitioner's other arguments and find them unavailing. Concur—Andrias, J.P., Saxe, Sweeny, Nardelli and Catterson, JJ. [Prior Case History: 2009 NY Slip Op 32834(U).]