| Matter of Hyman v Cornell Univ. |
| 2011 NY Slip Op 01548 [82 AD3d 1309] |
| March 3, 2011 |
| Appellate Division, Third Department |
| In the Matter of Marita Hyman, Appellant, v Cornell University,Respondent. |
—[*1] Nelson E. Roth, Office of the University Counsel, Cornell University, Ithaca, forrespondent.
Mercure, J. Appeal from a judgment of the Supreme Court (Mulvey, J.), entered December 7,2009 in Tompkins County, which dismissed petitioner's application, in a proceeding pursuant toCPLR article 78, to review a determination of respondent finding that, among other things,petitioner violated respondent's Code of Conduct.
Petitioner, a graduate student at respondent, exchanged a series of e-mails with seniorprofessor Davydd Greenwood until she suggested that they have a sexual affair, causing him torequest that she no longer contact him. Petitioner nevertheless continued to send e-mails toGreenwood. In November 2004, Greenwood indicated that he would take formal action againstpetitioner if she persisted in communicating with him, and petitioner agreed to cease any furthercommunication. She adhered to that agreement until November 2006 when she copiedGreenwood on an e-mail to respondent's president stating that her "institutional rights" had beenrepeatedly violated by the faculty of the Anthropology Department.
Greenwood then instituted proceedings against petitioner, and ultimately filed a [*2]complaint accusing her of harassment in violation of respondent'sCode of Conduct.[FN*]Petitioner, in turn, filed a complaint against Greenwood, accusing him of sexual harassment andretaliation. Petitioner's complaint was dismissed as lacking in merit and, following a hearing, theUniversity Hearing Board determined that petitioner harassed Greenwood. The Hearing Boardissued a written reprimand and a no-contact order, which was affirmed on appeal with a minormodification. Supreme Court dismissed the petition in this ensuing CPLR article 78 proceedingand, upon petitioner's appeal, we now affirm.
It is well settled that in reviewing a university's disciplinary determinations, "court[s] mustdetermine 'whether the university substantially adhered to its own published rules and guidelinesfor disciplinary proceedings' " (Matter ofWarner v Elmira Coll., 59 AD3d 909, 910 [2009], quoting Matter of RensselaerSocy. of Engrs. v Rensselaer Polytechnic Inst., 260 AD2d 992, 993 [1999]; see Tedeschiv Wagner Coll., 49 NY2d 652, 660 [1980]). When a university has not substantiallycomplied with its own guidelines or its determination is not rationally based upon the evidence,the determination will be annulled as arbitrary and capricious (see Matter of Warner v ElmiraColl., 59 AD3d at 910; Matter of Basile v Albany Coll. of Pharm. of Union Univ.,279 AD2d 770, 771 [2001], lv denied 96 NY2d 708 [2001]). Here, contrary topetitioner's arguments, there is no indication that respondent deviated from its procedures, and itsdetermination is amply supported by the evidence.
Petitioner's numerous procedural challenges—that the Hearing Board Chair abused hisdiscretion in overruling her objections, and that respondent, among other things, did not give herwritten notice of the charges against her, unduly delayed the proceedings, prevented her fromcalling witnesses on her own behalf, and failed to properly investigate the complaint that shefiled against Greenwood—are unsupported by the record. We reject petitioner's challengeto respondent's interpretation of its Code of Conduct as requiring it to provide petitioner withonly those written statements generated in the course of the investigation, and permitting it toconsult a member of respondent's Office of University Counsel. That interpretation is neitherunreasonable nor irrational (see Matter of Johnson v Joy, 48 NY2d 689, 691 [1979]; Matter of Posada v New York State Dept.of Health, 75 AD3d 880, 882-883 [2010], lv denied 15 NY3d 712 [2010]).Finally, the documentary evidence submitted to the Hearing Board provided clear and convincingevidence—the standard specified in the Code of Conduct—to support itsdetermination.
Petitioner's remaining arguments are contradicted by the record.
Spain, Malone Jr. and Stein, JJ., concur; Cardona, P.J., not taking part. Ordered that thejudgment is affirmed, without costs.
Footnote *: Respondent's Code of Conductmakes it a violation "[t]o intentionally harass another person by . . . acting toward[ ]that person in a manner [that] is . . . sever[e]ly annoying . . . andbeyond the scope of free speech."