Quercia v New York Univ.

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Quercia v New York Univ. 2006 NY Slip Op 30645(U) August 18, 2006 Supreme Court, New York County Docket Number: 108099/2006 Judge: Peter Tom Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SUPREME COURT OF THE STATE OF NEW YORK - NEW YORK COUNW PART 15 LTER B. TOLUB PRESENT: Jwtke MICHAEL QUERCIA, -V 108089/2006 INDEX NO. Plrlntlff, - MOTION DATE 06/23/06 NEW YORK UNIVERSIV, MOTION SEQ. NO. 0 1 0 Dmfondsnt. MOTION G A L NO, Tho following papen, numbered 1 to Notlcs of Motlonl Order to Show Cause .. m n Anrwerlng Affldrvltr -Exhibita wm mad on this motlon tolfor -Affldavltr - Exhlblk ... pAPPR8 NUMRCRD Rsplylng AMdrvltm C ross-lUlotlon: 9 Yes NO Upon tho foregoing paperr, thir motion it decided In accordance wlth the accompanying memorandum decision. Thls conitituter the dseblon on Dated: 9q Ia/ot WALTER B!TOLUB, JdS.C. @ Check one: FINAL DISPOSITION [zl NON-FINAL DISPOSITION Check If appropriate: DO NOT POST REFERENCE [* 2] Michael Quercia Indmx No. 1 0 8 0 9 9 / 2 0 0 6 M o t i o n Seq. 001 Petitioner, -against N e w York University, Petitioner University Q u e r c i a was Michael ("NYW" o r "the University) . a student at New York P e t i t i o n e r was suspended by the University following t h e University Judicial Board Hearing Panel's determination that he was in possession of marijuana in his dorm room. By this Article 7 8 a p p l i c a t i o n , Petitioner moves to s t a y the University's decision t o suspend him. Respondent cross-moves t o dismiss the instant application pursuant t o CPLR § 3211(a). Facts On or about May 5, officers from Petitioner's NYU's 2005, while petitioner was not p r e s e n t , Department of Public Safety dorm room and seized a sifter, s c a l e , baggies from Petitioner's d e s k space. entered g r i n d e r and The officers a l s o found a bin located in a common closet in t h e dorm room which contained I [* 3] one vacuum packed p l a s t i c bag containing approximately 10 ounces of a green candy b a r s , leafy substance, $1,740 i n U , S . currency, a s s o r t e d gum and an empty brown bag (Respondent's Exhibit B, The leafy substance was l a t e r identified a s marijuana. p.2). Petitioner however, denied knowledge as to the n a t u r e of contents of the bag (Respondent's Memorandum of Law, p . 8 ) . By l e t t e r dated May 6, 2005, Respondent informed P e t i t i o n e r of his immediate suspension from the University and instructed h i m to i n i t i a t e a disciplinary proceeding in accordance with the University's Policy on Student C o n d u c t (Respondent's Exhibit C ) . Petitioner did n o t r e q u e s t a formal judicial hearing until March 7, 2006, about ten months after the Incident (Respondent's Exhibit I), and o n l y after h e pled guilty to disorderly conduct in full satisfaction of the c h a r g e s arising out of the incident. A t Petitioner's Hearing Panel hearing b e f o r e the University J u d i c i a l Board ("Judicial Board" or "the Panel"), one of his former roommates, Thomas Schecter, testified that he had never observed Petitioner using or distributing d r u g s (Decision, p . 2) . Another former roommate, David Neil, told the University s t a f f d u r i n g the inspection that t h e items found in the room belonged to P e t i t i o n e r at Based on the evidence presented (Decision, p . 4 ) . the h e a r i n g , t h e Panel c o n c l u d e d that the substance in the 2 [* 4] locked container marijuana was that and it belonged to Petitioner. The May 1, 2006 decision of the U n i v e r s i t y ' s Judicial Board provided for Petitioner's semester, at suspension from N Y U u n t i l the Fall 2007 time which "may" he be upon reinstated the submission of a written request' (Order to Show Cause Exhibit E). Reinstatement however, p u r s u a n t t o this decision is only to be considered service a f t e r petitioner "with an agency completes 500 or organization hours to be of community approved" by Respondent, p r e f e r a b l y relating to substance abuse i s s u e s (Id.). If Petitioner's request for reinstatement is successful, Petitioner would then be b a r r e d from living i n o r visiting a n y University residence h a l l ( I d . ) Petitioner presently reinstating him as a . seeks full-time an order from student a t N Y U ; this c o u r t (2) (1) directing Respondent t o allow him to register for classes for t h e F a l l 2 0 0 6 semester; ( 3 ) d i r e c t i n g Respondent t o a l l o w P e t i t i o n e r to r e s i d e ' T h e complete text, as relevant, r e a d s as f o l l o w s : "Mr. Quercia may be reinstated as a s t u d e n t at N e w York University as of t h e F a l l 2 0 0 7 t e r m b y submitting, a f t e r J u n e 3 0 , 2 0 0 7 but b y no l a t e r t h a n A u g u s t 1, 2007, a written request to Associate Dean F r e d r i c Schwarzbach of t h e General Studies P r o g r a m . Provided that M r . Q u e r c i a has met the terms of this l e t t e r and is reinstated, Dean Schwarzbach will assist M r . Q u e r c i a w i t h t h e process of r e a p p l y i n g f o r internal transfer to the College of Arts and Science" ( I d . ) . 3 [* 5] in University Petitioner to incomplete housing; (4) complete the grades Respondent directing necessary course for any Semester; (5) work f o r the Spring 2005 received allow to ordering the Respondent to expunge all records relating t o this proceeding; and Petitioner's (6) a d j u s t all tuition and fees based upon t h e previously (Petition, p.3). expected g r a d u a t i o n date of June 2007 Respondent moves to dismiss the action Discussion Applications b r o u g h t pursuant to CLPR § 7 8 0 3 requires t h e c o u r t to determine whether " a determination was made in violation of lawful p r o c e d u r e , was a f f e c t e d by error an of law or was arbitrary and capricious or an abuse of discretion, abuse o f discretion as to the measure or mode of penalty or discipline imposed" (CPLR § 7803). Judicial including scrutiny of the determination of disciplinary matters between a university and its students is limited to determining w h e t h e r the university substantially adhered t o i t s own published rules and guidelines for disciplinary proceedings so as actions were arbitrary or capricious to ascertain whether its ( N a w a z v . S t a t e University of N e w Yurk University, 295 A D 2 d 944, 944 [4th Dept 2 0 0 2 1 ) . "When a private s c h o o l expels a student 'based on facts within its knowledge that justify the exercise of discretion,' t h e n a c o u r t 4 [* 6] may not review this declsion and substitute its own judgment. (Hucheson v . G r a c e L u t h e r a n School, 132 AD2d 599, q u o t i n g Matter of C a r r v . St. John's 19871, 634 [2nd Dept 1 9 6 2 1 , see also, Stein v. 92"' U n i v , , 17 AD2d 632, S t r e e t YM-YMHA, Snc., of educational highly specialized judgment and these institutions are, for the most that the institutions professional [2d Dept N e w York law r e f l e c t s the 273 A D 2 d 181, 1 8 2 [ l s t Dept 2 0 0 0 1 ) . policy 599 administrative involve the decisions of exercise part, better s u i t e d to make decisions concerning wholly internal matters ( M a s s v . Cornel1 University, 94 NY2d 87, 92 [ 1 9 9 9 ] ) . It follows t h a t whether Respondent's the f i r s t question b e f o r e this court is a r b i t r a r y and exercise of discretion was c a p r i c i o u s based on University policy and the f a c t s of this case. The rules published of the School NYU Professional Studies are explicit: of "Disciplinary h e a r i n g s . are n o t governed by the formal rules of evidence must be proved 'preponderance responsible" or disproved of evidence' (Respondent's Continuing using a level . .. of and . . The charges evidence of to f i n d someone responsible or not Exhibit N) . must l o o k t o whether based on t h e r e c o r d , Therefore, this court the University c o u l d determine, by a preponderance of the evidence, that Petitioner violated University policy. (Respondent's Memorandum of Law, p . 3 ) 5 [* 7] The evidence contained w i t h i n t h e record s u g g e s t s t h a t a reasonable person could conclude that it is more l i k e l y t h a n not t h a t t h e l e a f y substance in the s h a r e d closet was marijuana and that it belonged to Petitioner. The r e c o r d contained testimony from Mr. J u l e s M a r t i n , who identified t h e substance as marijuana, and who Exhibit had T) . extensive Petitioner's bolsters Respondent's Petitioner. experience in possession security (Respondent's of paraphernalia drug conclusion that the marijuana belonged to The P a n e l considered the testimony o f Mr. N e i l i n ownership of items determining Petitioner's the Exhibit J). T a k i n g into consideration a l l of these factors, t h e (Respondent's P a n e l a l s o found i t s u s p e c t that Petitioner failed t o respond to the disciplinary c h a r g e s brought against him f o r ten months. follows that the Panel's determination t h a t It Petitioner was i n possession of m a r i j u a n a was n o t a r b i t r a r y o r capricious. S i n c e t h e Panel's determination of P e t i t i o n e r ' s possession was not a r b i t r a r y and capricious, t h e second question is w h e t h e r t h e punishment imposed on Petitioner is so disproportionate t o t h e offense, i n l i g h t of all t h e circumstances, as to be shocking to one's sense of fairness. (Pel1 v. Board of Education of Union Free School D i s t . No. 1 of t h e Towns o f S c a r s d a l e and Marnaroneck, Westchester County, 3 4 NY2d 222, 231 6 [* 8] [1974]; see also, Mapp v. Burnham, 23 A D 3 d 37 [lst Dept ZOOS]). The NYU Statement of Policy on S u b s t a n c e Abuse states: "The unlawful possession, use, or distribution o f drugs will not be tolerated on University premises. Upon f i n d i n g evidence of t h e unlawful possession, use, or distribution of drugs on its premises by any student, t h e University w i l l take appropriate disciplinary action, including, but not limited to, probation, suspension or expulsion . . . .Students may a l s o be required to undergo evaluation and/or participation in and satisfactorily complete an appropriate counseling or rehabilitation program." (Respondent Exhibit H, p.232) There is no q u e s t i o n that Respondent has the h a s the power to take disciplinary rules. However, in action with accordance own written its Petitioner h a s already accepted and p l e d guilty to one c o u n t of Disorderly Conduct, a violation of the penal law which r e s u l t e d i n a conditional d i s c h a r g e of one year, a fee of $95.00, and ten days of community service. missed full a academic year of Petitioner has also school. Under these circumstances, the decision of Respondent to suspend Petitioner for a second academic year with only reinstatement after the completion of service found is to be a the 500 hours draconian disproportionate to t h e offense committed. directs Respondent t o reinstate possibility Petitioner's of of community measure that is A s such, this c o u r t status as a f u l l time s t u d e n t upon completion of 100 hours of community s e r v i c e . 7 [* 9] Moreover, this c o u r t d i r e c t s Respondent t g allow Petitioner to be permitted to incomplete grades complete the received necessary for course the Spring work Semester p r i o r suspension by the University in 2005. Petitioner's for any to The remaining relief sought by Petitioner however, is denied. Accordingly it is, A D J U D G E D that the petition is g r a n t e d to the extent t h a t Petitioner is to be permitted to be reinstated a9 a student at N Y U and to enroll in academic classes p e n d i n g the completion of 100 hours of community service. permitted to complete the Petitioner necessary is course also work to for be any incomplete g r a d e s received f o r t h e Spring, 2005 semester prior to petitioner's suspension by the University. The remainder the r e l i e f sought by Petitioner is d e n i e d ; and it is f u r t h e r ORDERED that Respondent's Dated: cross-motion to dismiss i s denied. B ( 4 Y HON. WALTER B. TOLUB, J . S . C .

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