Lusardi v. State University
726 N.Y.S.2d 202
N.Y. App. Div.
2001
Check Treatment

—Judgment unanimously affirmed without costs. Memorandum: Petitioner commenced this CPLR article 78 proceeding seeking, inter alia, reinstatement in the PhD program of the Department of Electrical and Computer Engineering (ECE) at respondent State University of New York at Buffalo. Supreme Court properly dismissed the petition. Petitioner contends that the determination to dismiss him from the program after he failed to pass the qualifying examination on two separate occasions was arbitrary and capricious because he was misled by a faculty member concerning whether a certain topic would be covered on the examination. According the appropriate deference to the determination of an educational institution with respect to the academic performance of its student (see, Matter of Susan M. v New York Law School, 76 NY2d 241, 245-246; Matter of Olsson v Board of Higher Educ., 49 NY2d 408, 413; Matter of Ratigan v Daemen Coll., 273 AD2d 891), we conclude that the determination is neither arbitrary nor capricious. Even assuming, arguendo, that the communication from the faculty member was ambiguous, we conclude that respondents demonstrated that the list of subjects to be covered on the examination was posted in three places in the ECE Department and was e-mailed to all students in advance of the examination. (Appeal from Judgment of Supreme Court, Erie County, Notaro, J. — CPLR art 78.) Present — Pigott, Jr., P. J., Pine, Hurlbutt, Scudder and Burns, JJ.