Matter of Momot v Rensselaer County, Hudson Val. Community Coll.

Matter of Momot v Rensselaer County, Hudson Val. Community Coll. 2009 NY Slip Op 03820 [62 AD3d 1136] May 14, 2009 Appellate Division, Third Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, August 26, 2009

In the Matter of John Momot, Appellant,
v
Rensselaer County, Hudson Valley Community College, Respondent.

—[*1] John Momot, Watervliet, appellant pro se.

Featherstonhaugh, Wiley & Clyne, L.L.P., Albany (Stephen B. Hanse of counsel), for respondent.

Appeal from an order of the Supreme Court (Hummel, J.), entered January 8, 2008 in Rensselaer County, which dismissed petitioner's application, in a proceeding pursuant to Executive Law § 298, to review a determination of the State Division of Human Rights finding no probable cause to believe that respondent had engaged in an unlawful discriminatory practice relating to education.

Petitioner, a former student in respondent's nursing program, filed a complaint with the State Division of Human Rights in January 2007, alleging that respondent discriminated against him. The allegations primarily involve discrimination based upon his national origin and in retaliation for previously filed complaints.[FN*] Following an investigation, the Division found that there was no probable cause to believe that respondent had engaged in the alleged discriminatory [*2]practice, and that respondent had articulated legitimate, nondiscriminatory reasons for dismissing petitioner from its nursing program. Petitioner then commenced this proceeding to challenge the Division's determination, and Supreme Court dismissed the petition, prompting this appeal.

We affirm. Inasmuch as the record reveals that respondent dismissed petitioner from its nursing program for legitimate educational reasons and that petitioner's claims of discrimination are unfounded, the Division's determination was not arbitrary and capricious and must be affirmed (see Matter of Sughe Jo v May Dept. Stores Co., 21 AD3d 614, 615 [2005], appeal dismissed 5 NY3d 880 [2005]; Matter of Sonne v New York State Div. of Human Rights, 12 AD3d 820, 821 [2004]; Matter of Hone v New York State Div. of Human Rights, 223 AD2d 761, 762 [1996]). Petitioner's arguments regarding matters not contained within the record are not properly before us (see e.g. Matter of Smith [Commissioner of Labor], 296 AD2d 803, 804 n [2002]).

Cardona, P.J., Mercure, Spain, Lahtinen and Malone Jr., JJ., concur. Ordered that the order is affirmed, without costs. Footnotes

Footnote *: In a prior decision, this Court affirmed the dismissal of petitioner's application to review a separate determination of the State Division of Human Rights finding no probable cause to believe that respondent had engaged in discrimination based upon petitioner's gender or subjected him to sexual harassment (Matter of Momot v Rensselaer County, Hudson Val. Community Coll., 57 AD3d 1069 [2008], lv denied 12 NY3d 709 [2009]).