Matter of Powell v. Mount St. Mary Coll. , 38 N.Y.S.3d 217 ( 2016 )

Matter of Powell v Mount St. Mary Coll. (2016 NY Slip Op 06083)

Matter of Powell v Mount St. Mary Coll.

2016 NY Slip Op 06083

Decided on September 21, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on September 21, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
JOHN M. LEVENTHAL
SYLVIA O. HINDS-RADIX
VALERIE BRATHWAITE NELSON, JJ.

2015-06644
2016-05726
(Index No. 1929/15)

[*1]In the Matter of Courtney Powell, respondent,

v

Mount Saint Mary College, et al., appellants.

Thomas, Drohan, Waxman, Petigrow & Mayle, LLP, Hopewell Junction, NY (Laura Wong-Pan of counsel), for appellants.

Anthony LoBiondo, Newburgh, NY, for respondent.

DECISION & ORDER

In a proceeding pursuant to CPLR article 78 to review a determination of the president of Mount Saint Mary College, dated March 3, 2015, confirming a decision dated January 16, 2015, made after a student conduct hearing, expelling the petitioner from the nursing program at Mount Saint Mary College, the appeals are from (1) an order of the Supreme Court, Orange County (Slobod, J.), dated April 17, 2015, and (2) a judgment of the same court dated May 19, 2015, which, upon the order, granted the petition and annulled the determination expelling the petitioner from the nursing program. Motion by the respondent, inter alia, in effect, to dismiss the appeals on the ground that they have been rendered academic. By decision and order on motion of this Court dated March 17, 2016, that branch of the motion which was, in effect, to dismiss the appeals as academic was held in abeyance and referred to the 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 is

ORDERED that the branch of the motion which is, in effect, to dismiss the appeals is granted; and it is further,

ORDERED that the appeals are dismissed, with costs.

On these appeals, the appellants seek to reinstate determinations expelling the petitioner from the nursing program at Mount Saint Mary College based on her alleged violation of the Student Code of Conduct. The petitioner has since graduated from the college and moves to dismiss the appeals as academic. "In general an appeal will be considered moot unless the rights of the parties will be directly affected by the determination of the appeal and the interest of the parties is an immediate consequence of the judgment" (Matter of Hearst Corp. v Clyne, 50 NY2d 707, 714; see Matter of Veronica P. v Radcliff A., 24 NY3d 668, 671; Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23 NY3d 570, 576). An appeal "is not moot if an appellate decision will [*2]eliminate readily ascertainable and legally significant enduring consequences that befall a party as a result of the order which the party seeks to appeal" (Matter of Veronica P. v Radcliff A., 24 NY3d at 671; see Matter of New York State Commn. on Jud. Conduct v Rubenstein, 23 NY3d at 576; Matter of Bickwid v Deutsch, 87 NY2d 862, 863). Here, the appellants do not take the position that success on their appeals could impair the petitioner's diploma, and they have otherwise failed to identify any legally significant enduring consequence to them resulting from the order and judgment appealed from. Consequently, the appeals must be dismissed as academic.

RIVERA, J.P., LEVENTHAL, HINDS-RADIX and BRATHWAITE NELSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court