By Mastro, J.P.; Roman, Barros and Iannacci, JJ.Franco Belli Plumbing and Heating and Sons, Inc., res, v. Charles A. Dimino ap — (Index No. 10280/12)In an action, inter alia, to recover damages for libel, the defendants appeal from two orders of the Supreme Court, Kings County (Bernadette Bayne, J.), dated March 2, 2016, and May 25, 2016, respectively. The order dated March 2, 2016, denied the defendants’ motion for summary judgment dismissing the complaint and granted the plaintiff’s cross motion pursuant to CPLR 3126 to impose sanctions on the defendants for spoliation of evidence. The order dated May 25, 2016, denied the defendants’ motion for leave to amend their answer.ORDERED that the order dated March 2, 2016, is reversed, on the law, on the facts, and in the exercise of discretion, the defendants’ motion for summary judgment dismissing the complaint is granted, and the plaintiff’s cross motion pursuant to CPLR 3126 to impose sanctions on the defendants for spoliation of evidence is denied; and it is further,ORDERED that the appeal from the order dated May 25, 2016, is dismissed as academic, in light of our determination on the appeal from the order dated March 2, 2016; and it is further,ORDERED that one bill of costs is awarded to the defendants.In March 2006, the plaintiff entered into a contract with Bovis Lend Lease LMB, Inc. (hereinafter Bovis), to install plumbing and gas pipes as part of the construction of a new school located in the Bronx. Bovis was retained by the New York City School Construction Authority (hereinafter the SCA) as the general contractor for the project. The plaintiff completed its work in July 2008. In May of 2011, an odor of gas was detected at the school. On or about June 3, 2011, the New York City Department of Education (hereinafter the DOE) contacted the defendant Charles A. Dimino, Inc. (hereinafter CDI), and requested that it inspect and repair the gas piping system at the school. In a letter dated June 20, 2011 (hereinafter the letter), the defendant Charles A. Dimino (hereinafter Dimino, and together with CDI, the defendants), the owner of CDI, advised the DOE that the defendants were in the process of “removing the leaking joints and making the necessary repairs,” and that the “only explanation of why so many leaks are present is that the workmanship was poor, and that the threads were made improperly.” Dimino also noted that “[l]ampwick, which is not permitted on gas, was used to make up for this deficiency.”On July 15, 2011, the SCA issued the plaintiff an unsatisfactory rating and disqualified it from bidding, contracting, and subcontracting on any future SCA project for a period of five years. In response, the plaintiff requested that the SCA hold a hearing concerning the unsatisfactory rating and disqualification. A hearing at which the plaintiff was represented by counsel was held on September 21, 2011, and February 1, 2012. On March 12, 2012, following the hearing, the SCA issued a decision adhering to its earlier determination. It emphasized that after evaluating “all the testimony and exhibits presented by both the SCA and [the plaintiff]… [t]he Panel concurs with the SCA’s position that the primary culprit of those gas pipe leaks at [the school] were caused by substandard work and the use of lamp wick in the joints of the gas pipes.”In May 2012, the plaintiff commenced this action against the defendants asserting causes of action alleging libel, injurious falsehood, and tortious interference with business relations. The defendants subsequently moved for summary judgment dismissing the complaint. The plaintiff cross-moved pursuant to CPLR 3126 to impose sanctions on the defendants for spoliation of evidence. By order dated March 2, 2016, the Supreme Court denied the defendants’ motion and granted the plaintiff’s cross motion. The defendants subsequently moved for leave to amend their answer to include the affirmative defense of collateral estoppel, which was denied by order of that court dated May 25, 2016. The defendants appeal from both orders.The Supreme Court erred in denying the defendants’ motion for summary judgment dismissing the complaint. A “libel action cannot be maintained unless it is premised on published assertions of fact” (Brian v. Richardson, 87 NY2d 46, 51; see Mann v. Abel, 10 NY3d 271, 276; Crescendo Designs, Ltd. v. Reses, 151 AD3d 1015, 1016). ”‘The elements of a cause of action [to recover damages] for defamation are a false statement, published without privilege or authorization to a third party, constituting fault as judged by, at a minimum, a negligence standard, and it must either cause special harm or constitute defamation per se’” (Martino v. HV News, LLC, 114 AD3d 913, 913, quoting Epifani v. Johnson, 65 AD3d 224, 233). ”The common-interest privilege arises where a person makes a bona fide communication upon a subject in which he and the recipient both have an interest” (Diorio v. Ossining Union Free School Dist., 96 AD3d 710, 712; see Liberman v. Gelstein, 80 NY2d 429, 437). ”However, where the plaintiff can demonstrate that the communication made by the defendant was not made in good faith but was motivated solely by malice, the protection provided by the qualified privilege will be inapplicable” (Phelan v. Huntington Tri-Vil. Little League, Inc., 57 AD3d 503, 505; see Liberman v. Gelstein, 80 NY2d at 437-439). ”Malice in this context has been interpreted to mean spite or a knowing or reckless disregard of a statement’s falsity” (Rosenberg v. MetLife, Inc., 8 NY3d 359, 365).Contrary to the plaintiff’s contention, the defendants made a prima facie showing that the challenged statements were protected by the qualified common-interest privilege (see Galanova v. Safir, 138 AD3d 686, 687-688; Melious v. Besignano, 125 AD3d 727, 729; Bayer v. City of New York, 60 AD3d 713, 714; Phelan v. Huntington Tri-Vil. Little League, Inc., 57 AD3d at 505). The evidence in the record demonstrated that the letter, which does not reference the plaintiff by name, was written by Dimino at the request of the DOE, and that the defendants did not identify the plumbing company that installed the gas piping at the school. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the challenged statements were motivated solely by malice (see Galanova v. Safir, 138 AD3d at 687-688; Colantonio v. Mercy Med. Ctr., 135 AD3d 686, 691; Segall v. Sanders, 129 AD3d 819, 821; Bayer v. City of New York, 60 AD3d at 714; Phelan v. Huntington Tri-Vil. Little League, Inc., 57 AD3d at 505). ”‘Mere conclusory allegations, or charges based upon surmise, conjecture, and suspicion are insufficient to defeat the claim of qualified privilege’” (Golden v. Stiso, 279 AD2d 607, 608, quoting Kamerman v. Kolt, 210 AD2d 454, 455; see Bernacchi v. County of Suffolk, 118 AD3d 931, 932). Although the plaintiff disputes that its workmanship was poor and that it used lamp wick in the gas pipes at the school, the plaintiff failed to submit sufficient evidence to support its claims that the defendants made the statements for the purposes of justifying the cost of their repair work and eliminating the plaintiff as a competitor.For these same reasons, the defendants demonstrated their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging injurious falsehood. In opposition, the plaintiff failed to raise a triable issue of fact as to whether the defendants made false statements, maliciously and with the intent to harm it, or recklessly and without regard to their consequences (see Newport Serv. & Leasing, Inc. v. Meadowbrook Distrib. Corp., 18 AD3d 454, 455; Gilliam v. Richard M. Greenspan, P.C., 17 AD3d 634, 635). In addition, the defendants established, prima facie, that they did not tortiously interfere with the plaintiff’s business relations. In opposition, the plaintiff failed to raise a triable issue of fact as to whether Dimino made the alleged defamatory statements in the letter for the sole purpose of harming the plaintiff or by using unlawful means (see Baldeo v. Majeed, 150 AD3d 942, 945; MVB Collision, Inc. v. Progressive Ins. Co., 129 AD3d 1040, 1040; Meyer v. Staten Is. Univ. Hosp., 117 AD3d 920, 921).Accordingly, the Supreme Court should have granted the defendants’ motion for summary judgment dismissing the complaint.Furthermore, the Supreme Court improvidently exercised its discretion in granting the plaintiff’s cross motion pursuant to CPLR 3126 to impose sanctions on the defendants for spoliation of evidence. ”‘Under the common-law doctrine of spoliation, when a party negligently loses or intentionally destroys key evidence, the responsible party may be sanctioned under CPLR 3126′” (Samaroo v. Bogopa Serv. Corp., 106 AD3d 713, 713, quoting Holland v. W.M. Realty Mgt., Inc., 64 AD3d 627, 629). ”‘[T]he Supreme Court has broad discretion in determining what, if any, sanction should be imposed for spoliation of evidence’ and may, ‘under appropriate circumstances, impose a sanction even if the destruction occurred through negligence rather than wilfulness, and even if the evidence was destroyed before the spoliator became a party, provided the spoliator was on notice that the evidence might be needed for future litigation’” (Doviak v. Finkelstein & Partners, LLP, 137 AD3d 843, 846, quoting Biniachvili v. Yeshivat Shaare Torah, Inc., 120 AD3d 605, 606). ”As the party seeking sanctions for spoliation, the plaintiff was required to demonstrate ‘that the party having control over the evidence possessed an obligation to preserve it at the time of its destruction, that the evidence was destroyed with a culpable state of mind, and that the destroyed evidence was relevant to the party’s claim… such that the trier of fact could find that the evidence would support that claim’” (Saeed v. City of New York, 156 AD3d 735, 737, quoting Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d 543, 547; see Golan v. North Shore-Long Is. Jewish Health Sys., Inc., 147 AD3d 1031, 1032). ”Where the evidence is determined to have been intentionally or wilfully destroyed, the relevancy of the destroyed [evidence] is presumed. On the other hand, if the evidence is determined to have been negligently destroyed, the party seeking spoliation sanctions must establish that the destroyed [evidence was] relevant to the party’s claim or defense” (Pegasus Aviation I, Inc. v. Varig Logistica S.A., 26 NY3d at 547-548 [citation omitted]). Here, it was undisputed that the gas pipes installed by the plaintiff that purportedly contained lamp wick and improper threads were not preserved. Although that evidence was relevant to the plaintiff’s claims, the plaintiff failed to establish that it was the defendants who discarded that evidence and that the defendants had an obligation to preserve the evidence at the time the evidence was destroyed (see Golan v. North Shore-Long Is. Jewish Health Sys., Inc., 147 AD3d at 1033; Gaoming You v. Rahmouni, 147 AD3d 729, 730). Under the circumstances of this case, the obligation to preserve the pipes would be on the SCA or the DOE, not the defendants. Accordingly, the court should have denied the plaintiff’s cross motion to impose sanctions on the defendants for spoliation of evidence.In light of our determination, the appeal from the order dated May 25, 2016, has been rendered academic.MASTRO, J.P., ROMAN, BARROS and IANNACCI, JJ., concur.2016-06225Franco Belli Plumbing and Heating and Sons, Inc.,respondent, v. Charles A. Dimino appellants.(Index No. 10280/12) Motion by the respondent on appeals from two orders of the Supreme Court, Kings County, dated March 2, 2016, and May 25, 2016, respectively, inter alia, to strike sections I(A) and III of the appellants’ brief on the grounds that the arguments in those sections improperly raise issues for the first time on appeal and the arguments in section I(A) refer to matter dehors the record. By decision and order on motion of this Court dated December 12, 2016, those branches of the motion which are to strike sections I(A) and III of the appellants’ brief were held in abeyance and referred to the panel of Justices hearing the appeals for determination upon the argument or submission thereof.Upon the papers filed in support of the motion and the papers filed in opposition thereto, and upon the argument of the appeals, it isORDERED that those branches of the respondent’s motion which are to strike sections I(A) and (III) of the appellants’ brief are denied.MASTRO, J.P., ROMAN, BARROS and IANNACCI, JJ., concur.
By Mastro, J.P.; Cohen, Miller, Nelson and Iannacci, JJ.MATTER of Jamael Bursch, pet, v. Purchase College of the State University of New York res — (Index No. 1319/15)Proceeding pursuant to CPLR article 78, inter alia, to review a determination of the respondent Purchase College of the State University of New York, dated October 17, 2014. The determination upheld a decision of the Disciplinary Hearing Committee of the respondent Purchase College of the State University of New York dated October 7, 2014, finding that the petitioner committed disciplinary violations, and expelled the petitioner from the school.ADJUDGED that the determination is confirmed, the petition is denied, and the proceeding is dismissed on the merits, with costs.On September 24, 2014, the petitioner, a student at Purchase College of the State University of New York (hereinafter Purchase), was charged with committing four violations of the student code of conduct: (1) engaging or attempting to engage in unwanted sexual behavior toward any individual; (2) engaging or attempting to engage in anal, oral, or vaginal penetration with an individual without the consent of that person; (3) engaging or attempting to engage in sexual intercourse or other sexual behavior with someone who is physically helpless (e.g., drunk and/or under the influence of a substance or substances rendering him or her helpless), unconscious, or otherwise incapacitated or unable to accurately communicate; and (4) underage consumption of alcohol. The next day, the petitioner met with Melissa Jones, Purchase’s Director for Community Standards, for an initial conference regarding the charges. At that conference, the petitioner admitted that he was responsible for underage consumption of alcohol, but denied that he was responsible for the other charges. The petitioner elected to have the charges pending against him resolved at a hearing before an administrative hearing board comprised of three faculty and/or professional staff, instead of a hearing board comprised of students and faculty or staff members. The petitioner also received a notice informing him that he was entitled to have an “advisor” of his choice present at the hearing, and that this advisor could be a parent or attorney. The notice further indicated that if an attorney was present, the attorney could not “represent the student and/or interact with the Hearing Committee/Officer or any other individual in the hearing process with the exception of his/her client.”In an email sent to the petitioner on Tuesday, September 30, 2014, Jones stated that she was “currently having an issue with finding a time for your hearing this week due to witness availability and the Jewish holiday.” Jones further stated in the email that she was “currently looking to schedule your hearing for Monday, October 6, 2014 or Tuesday, October 7, 2014.” In an email sent to Jones later in the day on September 30, 2014, an attorney stated that he had been retained by the petitioner to represent him with respect to the charges, and requested that Jones forward any future correspondence related to the upcoming hearing to the attorney’s attention. Still later in the day on September 30, 2014, Jones sent an email to the petitioner noting that she had received the attorney’s email, but that she was not able to communicate directly with the attorney until the petitioner completed an attached release form pursuant to the Family Educational Rights and Privacy Act of 1974 (hereinafter FERPA; see 20 USC §1232g). Jones stated in the email that until the petitioner completed the FERPA release form, “any direct communication will go through [sic] such as date of hearing, hearing updates, etc. and then you can forward the communication to your attorney prior to providing a reply.”In a letter that was emailed to the petitioner on Thursday, October 2, 2014, Jones informed the petitioner that his hearing was scheduled for 9:00 a.m. on Tuesday, October 7, 2014. Later that day, and again the next day, representatives of Purchase sent emails to the petitioner saying that they had received calls from the petitioner’s attorney, but that they were unable to discuss with the attorney any information regarding the petitioner’s case until Purchase received a completed FERPA release form.On October 5, 2014, the petitioner completed a FERPA release form. According to the petition in this CPLR article 78 proceeding, “[o]n or about October 5, 2014,” the petitioner’s attorney informed a representative of Purchase that he had an unspecified prior commitment at 9:00 a.m. on October 7 that he could not change, and asked for the hearing to be delayed until approximately 12:00 p.m. that day. According to the petition, this request was denied without explanation. On October 6, 2014, Jones emailed the petitioner to inform him of the “witnesses, character witnesses, and reports to be presented in the hearing schedule[d] for tomorrow… at 9:00 a.m.” Jones further wrote in the email: “As a reminder, your request for the hearing to be postponed until 12 noon has been denied due to the availability of the people involved in the hearing.”The hearing took place between 9:42 a.m. and 11:35 a.m. on October 7, 2014. The petitioner’s attorney was not present; instead, the petitioner’s father was present as his advisor. At the hearing, the complainant testified that on the night of the incident, she had blacked out from intoxication for the first time in her life, remembering nothing about the incident except vomiting in someone’s bathroom at some point in the evening. She further testified that she had barely known the petitioner before the night of the incident, that she had been in a two-year relationship with another woman, and that she was shocked to discover her disordered clothing and signs of sexual activity when she awoke the next morning. Text messages exchanged by the complainant and the petitioner the day after the incident were introduced. In these messages, the complainant asked the petitioner what had happened the night before, stating that she had been “incoherent” that night. The petitioner responded that they had sex, and that “I was also incoherent but not as much as you.” At the hearing, the petitioner admitted that he had engaged in sexual intercourse with the complainant, that the complainant did not verbally consent to sexual intercourse, that it was “obvious” that she was drunk, and that the complainant “freaked out” or “bugged out” when she realized the next morning that her underwear was not on.In a determination dated October 7, 2014, the hearing board found that the petitioner committed the charged violations, and recommended that the petitioner be expelled from the college. With respect to each of the first three violations, the board determined that the complainant was intoxicated to the point of being unable to consent to any sexual act. The board then specifically noted the petitioner’s text message stating that he was “also incoherent but not as much as you,” and the petitioner’s testimony that the complainant did not give any verbal consent. The petitioner appealed the hearing board’s determination to the campus appeal board. In a determination dated October 15, 2014, the campus appeal board recommended that the appeal be denied. In a letter to the petitioner dated October 17, 2014, Purchase’s Vice President of Student Affairs informed the petitioner that he and the president of Purchase had approved the recommendation of the campus appeal board, and that the petitioner was thereby expelled. The petitioner subsequently commenced this proceeding pursuant to CPLR article 78 to review Purchase’s determination. In an order entered July 7, 2015, the Supreme Court, Westchester County, transferred the proceeding to this Court pursuant to CPLR 7804(g).Contrary to the petitioner’s contention and the conclusion of our dissenting colleagues, we find that Purchase did not abuse its discretion or act arbitrarily or capriciously in denying the petitioner’s request to adjourn the hearing (see CPLR 7803[3]).While our dissenting colleagues rely on a provision of Purchase’s Sexual and Interpersonal Violence Policy that gives an accused student the right to request a “one-time extension” of a disciplinary hearing, this provision is neither cited by the parties nor contained in the record. In any event, this provision merely states that an accused student has the right to “request” an extension of up to five business days, and further provides that the Director of the Office of Community Standards “will review the request and make a determination” before notifying the requesting party as to “the acceptance or denial of the request” (Purchase Coll., Off. of Community Standards, Sexual and Interpersonal Violence, Sexual Violence Hearing/Discipline Preparation & Rights, available at https://www.purchase.edu/offices/community-standards/sexual-and-interpersonal-violence/hearing/ [last accessed June 28, 2018]).Here, although the petitioner was informed on September 30, 2014, that the hearing would likely be scheduled for October 6 or 7, and although he was informed on October 2, 2014, of the exact time of the hearing, he alleges that he did not request an adjournment until “on or about” October 5, 2014, which was two days before the date of the hearing. Any delay in the petitioner’s attorney discussing the scheduling of the hearing with the Purchase administration was attributable to the petitioner’s delay in executing a FERPA release form as instructed. The hearing involved the participation of three faculty or staff members serving as the administrative board, eight testifying witnesses including the petitioner and the complainant, and a support person for the complainant. Jones had previously mentioned in an email to the petitioner the difficulty that she was having finding a time when all of these people could participate. Given the difficulty in scheduling and the timing of the request for an adjournment, the denial of the request was not arbitrary, capricious, or an abuse of discretion (see Matter of Gerber v. New York State Dept. of Motor Vehs., 129 AD3d 959, 960; Matter of Fain v. Brooklyn Coll. of City Univ. of N.Y., 112 AD2d 992, 993).Nor did the denial of the request for an adjournment amount to a denial of due process. In disciplinary proceedings at public colleges, “‘[d]ue process requires that the [accused students] be given the names of the witnesses against them, the opportunity to present a defense, and the results and finding of the hearing’” (Matter of Lambraia v. State Univ. of N.Y. at Binghamton, 135 AD3d 1144, 1146, quoting Matter of Gruen v. Chase, 215 AD2d 481, 481). Due process does not require colleges to provide accused students with legal representation at disciplinary hearings (see Matter of Gruen v. Chase, 215 AD2d at 481; Matter of Mary M. v. Clark, 100 AD2d 41, 44). Purchase’s rules, the legality of which the petitioner does not challenge, allow for an attorney to be present and advise an accused student at a disciplinary hearing, but not to represent the student or interact with anyone at the hearing other than the accused student. Here, the petitioner had hired an attorney as of September 30, 2014. As noted above, the petitioner was notified on September 30, 2014, that the hearing would likely be scheduled for October 6 or 7, and was informed of the exact time of the hearing on October 2, 2014. He alleges that he did not request an adjournment until “on or about” October 5, 2014, which was two days before the date of the hearing. Under these circumstances, contrary to the suggestion of our dissenting colleagues, the petitioner was not denied the opportunity to have an attorney present at the hearing (see Matter of A & U Auto Repair v. New York State Dept. of Motor Vehs., 135 AD3d 856, 857; Matter of Watson v. Fiala, 101 AD3d 1649, 1650-1651; Matter of Gell v. Carrion, 81 AD3d 953, 953-954; Matter of Baywood Elec. Corp. v. New York State Dept. of Labor, 232 AD2d 553, 554; Matter of Gruen v. Chase, 215 AD2d at 481; Matter of Mera v. Tax Appeals Trib. of State of N.Y., 204 AD2d 818, 820; Matter of Rauer v. State Univ. of N.Y., Univ. at Albany, 159 AD2d 835, 836; Patricia W. Walston, P. C. v. Axelrod, 103 AD2d 769, 770-771).Purchase’s determination that the petitioner committed the charged violations was supported by substantial evidence (see CPLR 7803[4]; Matter of Bottom v. Annucci, 26 NY3d 983, 984-985; 300 Gramatan Ave. Assoc. v. State Div. of Human Rights, 45 NY2d 176, 180-181; cf. Matter of Fain v. Brooklyn Coll. of City Univ. of N.Y., 112 AD2d at 994).Contrary to the petitioner’s contention, the penalty of expulsion was not so disproportionate to the offenses as to be shocking to one’s sense of fairness, thus constituting an abuse of discretion as a matter of law (see CPLR 7803[3]; Matter of Powers v. St. John’s Univ. Sch. of Law, 25 NY3d 210, 218; Matter of Kelly v. Safir, 96 NY2d 32, 38).The petitioner’s remaining contentions are not properly before this Court (see Matter of Corrigan v. New York State Off. of Children & Family Servs., 28 NY3d 636, 643).MASTRO, J.P., BRATHWAITE NELSON and IANNACCI, JJ., concur.MILLER , J. dissents, and votes to grant the petition, annul the administrative determination, and remit the matter for a new hearing in accordance herewith, with the following memorandum, in which COHEN, J., concurs:The respondent Purchase College of the State University of New York (hereinafter Purchase) violated the petitioner’s right to due process and abused its discretion when it denied his timely request for a three-hour adjournment of the administrative hearing so that his attorney could attend. Given the gravity of the administrative charges facing the petitioner, and the threat of additional criminal charges stemming from an active police investigation, the petitioner’s right to secure the assistance of his designated attorney at the administrative hearing was fundamental. This right was wrongfully extinguished by Purchase when it summarily refused to accommodate the petitioner’s request for this exceedingly minimal delay.This case should not be analyzed as if it involved a routine application for an adjournment in a proceeding before the Department of Motor Vehicles. Aside from the punishment of expulsion, which effectively ended the petitioner’s pursuit of higher education, the petitioner faced the prospect of serious criminal charges that could have resulted in a significant prison sentence. In light of the potential impact of the administrative hearing, the failure to grant a three-hour adjournment was no ordinary administrative determination with consequences confined to the administrative realm, but a decision which deprived the petitioner of his right to due process. Every participant in an administrative proceeding is entitled to be treated fairly and in accordance with due process, regardless of the nature of the charges lodged against them. Accordingly, we must respectfully dissent.On September 22, 2014, the complainant reported to New York State University Police that she had been sexually assaulted by the petitioner a few days earlier. The petitioner made himself available to the police, and was interviewed by police investigators for more than seven hours. When the petitioner asked to go home, he was detained by the police until he was notified by Purchase that he was suspended.On September 24, 2014, Purchase charged the petitioner with four violations of the University Standards of Conduct: one instance of underage drinking and three instances of sexual assault. The petitioner faced the maximum administrative punishment of expulsion.The petitioner’s father contacted Purchase on the day that the petitioner was charged. He was informed by Melissa Jones, the Director for Community Standards, that she was unable to provide specific information about the charges since the school had not yet obtained a Family Education Rights and Privacy Act of 1974 (hereinafter FERPA; see 20 USC §1232g) release form from the petitioner. Jones did, however, inform the petitioner’s father that the petitioner had been suspended pending the outcome of a disciplinary process due to allegations of sexual assault. Jones also discussed the nature of the disciplinary hearing with the father, the time frames that would be involved, and other administrative matters relating to the charges.The next day, the petitioner met with Jones and admitted responsibility for the charge of underage drinking, but requested an administrative hearing with respect to all other allegations. At this meeting, Jones explained, among other things, that the petitioner’s administrative hearing would be conducted before three members of the faculty and/or professional staff. Jones informed the petitioner that, as per Purchase’s written policy, the petitioner had “the right” to have an “advisor of [his] choice” present, which could be an attorney or parent. If “legal action surrounding the same incident [was] pending,” the petitioner had “the right to… [t]he presence of an attorney.” If the petitioner chose an attorney to attend the hearing, the attorney would be permitted to interact only with the petitioner. Jones explained that both the petitioner and the complainant were entitled to call fact witnesses and character witnesses to testify at the hearing. Witnesses who could not appear in person were permitted to provide written statements or testify by telephone. The petitioner and the complainant were also entitled to formal notice of the date and time of his hearing no less than two days in advance of the hearing. The petitioner and the complainant were required to email any written witness statements and a list of testifying witnesses to Purchase 24 hours prior to the hearing.Purchase’s Sexual and Interpersonal Violence Policy, which is relied upon by Purchase in its brief, was to resolve the complaints of sexual misconduct “within 60 calendar days” of receipt of the complaint (Purchase Coll., Off. of Community Standards, Sexual and Interpersonal Violence, available at https://www.purchase.edu/offices/community-standards/sexual-and-interpersonal-violence/ [last accessed June 28, 2018]). That policy also gave accused students “[t]he right to request a one-time extension of a disciplinary hearing that cannot exceed 5 business days” (id.).On Tuesday, September 30, 2014, at 8:56 a.m., Jones emailed the petitioner stating that her office was “currently having an issue with finding a time for your hearing this week due to witness availability and the Jewish holiday.” Within 20 minutes of that email, the petitioner’s attorney notified Purchase that he had been retained to advise the petitioner in these proceedings. At 11:25 a.m. that day, Jones notified the complainant that the petitioner had selected an attorney as “his advisor of choice” for the hearing and informed the complainant that she “also [had] the right to bring an attorney as an advisor of choice.”
