Petitioner commenced this CPLR article 78 proceeding via order to show cause challenging a determination by respondent SUNY Plattsburgh dismissing him from the college in May 2016 (and placing such dismissal on his transcript). He was dismissed for allegedly failing to obtain affirmative consent when engaging in sexual activity with another student (hereinafter referred to as K.H.). Petitioner requested a temporary stay in his order to show cause and, after hearing oral argument on that issue, the Court denied the requested stay in a Decision and Order dated August 25, 2016.^[FN1] The underlying facts are set forth in such Decision and Order and will not be repeated here. However, the Court stresses that such Decision and Order — which was rendered before respondents had submitted their return with a transcript of the hearing — dealt [*2]solely with the narrow issue of whether a provisional remedy would be granted and has no bearing on the ultimate disposition of this proceeding.

Petitioner has raised several grounds for granting his application, including, among others, that respondents violated due process and rendered a determination that was not supported by substantial evidence. Definitions of substantial evidence include "the kind of evidence on which responsible persons are accustomed to rely in serious affairs" (People ex rel. Vega v Smith, 66 NY2d 130, 139 [1985] [internal quotation marks and citations omitted]) and proof which is "[m]arked by its substance — its solid nature and ability to inspire confidence" (300 Gramatan Ave. Associates v State Div. of Human Rights, 45 NY2d 176, 180 [1978]). "[A]n administrative determination may be based entirely upon hearsay — provided such evidence is sufficiently relevant and probative or sufficiently reliable and is not otherwise seriously controverted" (Matter of Doctor v New York State Off. of Alcoholism & Substance Abuse Servs., 112 AD3d 1020, 1022 [2013] [internal quotation marks and citations omitted] [emphasis added]; see Matter of Gerald HH. v Carrion, 130 AD3d 1174, 1175-1176 [2015]).^[FN2]

The underlying hearing turned, in some respects, on conflicting versions of what occurred between petitioner and K.H., with credibility of the participants important. Respondent Butterfly Blaise, the college's Title IX coordinator, was the only person to speak in support of the charges at the hearing. She had interviewed K.H. and took notes of the interview, which she read at the hearing. There is no indication that K.H. ever gave a sworn statement, and it does not appear that Blaise was sworn prior to presenting the case against petitioner at the hearing. At the time of the hearing, K.H. was reportedly in a nearby room into which the hearing was being streamed for K.H. to watch. When petitioner inquired as to whether he could ask questions of K.H., he was told he could ask questions only to Blaise. No procedure was offered whereby he could question K.H., even if through a third party (see Xiaolu Peter Yu v Vassar College, 97 F Supp 3d 448, 465 [SDNY 2015] [noting the availability of such procedure in that case]; cf. Emily D. Safko, Note, Are Campus Sexual Assault Tribunals Fair? The Need for Judicial Review and Additional Due Process Protection In Light of New Case Law, 84 Fordham L Rev 2289, 2298 [2016] [reciting that the Department of Education Office for Civil Rights has discouraged schools from allowing direct questioning between persons involved in an alleged sexual assault]). Blaise, who prepared the investigative report upon which the charges were based and presented the only proof, also set forth the applicable standard regarding the key issue of affirmative consent. Petitioner, who maintained at all times that the sexual activity was consensual, asked Blaise whether "affirmative consent can be implied or referred [sic] from conduct." Blaise responded:

"Only if the direct question is: Can I have sex with you? So you must ask directly what it is that you want to do to that person. So, for instance if you wanted to perform oral sex on someone, you must say, can I perform oral sex on you. And you must get an affirmative yes. If you want to penetrate someone vaginally, you must say, may I have, in some way or another, vaginal sex with you. And the answer affirmatively must be yes."

This explanation by Blaise appears to be inconsistent with the applicable statute, which states, in part, that "[c]onsent can given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in sexual activity" (Education Law § 6441 [1] [emphasis added]).

It is evident that petitioner has raised significant issues regarding the nature of the administrative proceeding which culminated in his expulsion. Respondents have not addressed the merits of petitioner's many arguments, but instead urge that this proceeding must be transferred to the Appellate Division because petitioner has raised a substantial evidence issue. Petitioner does not dispute that transfer to the Appellate Division is proper at this point. CPLR 7804 (g) provides that where a substantial evidence issue is raised, "the court shall first dispose of such other objections as could terminate the proceeding, including but not limited to lack of jurisdiction, statute of limitations and res judicata" and, if such issues do not dispose of the proceeding, then it must be transferred to the Appellate Division. Although the statute was amended in 1990 to broaden the issues addressed by Supreme Court before a case is transferred (see Matter of Barnhill v Coombe, 239 AD2d 719, 720, n [1997]), nonetheless the "amended statute is still ambiguous as to the scope of the Supreme Court's jurisdiction" and, in addition to the examples listed in the statute, "[m]ost of the defenses listed in CPLR 3211 (a) are probably within the contemplation of subdivision (g), but undoubtedly there are others as well, such as standing, lack of finality and failure to exhaust administrative remedies" (Vincent C. Alexander, Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, C7804:8, at 677). These types of clearly dispositive issues are not raised by either party. Moreover, the Court notes that in several recent cases involving challenges to college disciplinary determinations where, in addition to a substantial evidence issue, other issues (including due process) were raised, the cases were transferred to the Appellate Division, which addressed all issues and did not indicate in such decisions that any part thereof should have initially been addressed by Supreme Court (see Matter of Lambraia v State Univ. of NY at Binghamton, 135 AD3d 1144 [2016]; Matter of Budd v State Univ. of NY at Geneseo, 133 AD3d 1341 [2015], lv denied 26 NY3d 919 [2016]; Matter of Boyd v State Univ. of NY at Cortland, 110 AD3d 1174 [2013]; Matter of Schwarzmueller v State Univ. of NY at Potsdam, 105 AD3d 1117 [2013]). Accordingly, the Court is persuaded by respondents' argument, which is unopposed by petitioner, that the entire proceeding must be transferred to the Appellate Division.

Finally, the parties agree that, so long as the Clerk of Clinton County has ensured proper redaction as per CPLR 3016 (I) of previously filed papers, the Court's prior order temporarily sealing all pleadings should now be rescinded.

Based upon the foregoing analysis and upon review of the papers as enumerated hereinafter, it is

ORDERED petitioner's informal request for reargument and/or reconsideration of the Court's Decision and Order dated August 25, 2016 is denied; and it is further

ORDERED that the Clerk of Clinton County is directed, pursuant to CPLR 3016 (I), to redact from the pleadings any references therein to any student's name or identifying biographical [*3]information (other than petitioner)^[FN3] and, subject to such review and redaction, the Court's prior order temporarily sealing all pleadings is rescinded; and it is further

ORDERED that the proceeding is transferred to the Appellate Division, Third Department, pursuant to CPLR 7804 (g).

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Order to Show Cause dated August 25, 2016. Counsel for respondents are hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry upon the petitioner in accordance with CPLR 5513.