The following e-filed papers read herein: NYSCEF Doc Nos.:

In this CPLR article 78 proceeding, petitioner John Doe ("Petitioner"), a current student of respondent Pratt Institute ("Pratt"), petitions the Court for an order, in essence, pursuant to CPLR 3001 and 7803 (3),^[FN1] declaring that, in connection with the complaints of Jane Roe [*2](another student at Pratt) (the "Complainant") to Pratt about him: (1) Pratt misapplied its Title IX and Sexual Misconduct Policy, issued June 1, 2023 (the "sexual misconduct policy"), as against him; (2) Pratt acted in an arbitrary and capricious manner; and (3) Pratt's final decision against him, as set forth in the Appeal Panel Decision Summary, dated October 1, 2024 (the "appeal panel decision"), lacked a rational basis; and, upon the finding of one or more of the foregoing, vacating Pratt's sanctions imposed on Petitioner, pursuant to the appeal panel decision, and expunging all references to the underlying charges from his academic record at Pratt.^[FN2]

Before answering the petition, Pratt moved, pursuant to CPLR 3211 (a) and 7804 (f),^[FN3] to dismiss the petition, submitting (among other documents) the administrative record with its motion. The Court heard oral argument on September 18, 2025 and reserved decision.

The precise findings of the appeal panel decision are important, and for this reason, their relevant portions are reproduced below:

"[T]he panel [below] focused on the admissions by both the [Petitioner] and the Complainant . . . who agreed to engage in 'sleeping sex,' a violation of Pratt's Title IX and Sexual Misconduct Policy. Given the fact that the [Petitioner] admitted to violating Pratt's Title IX and Sexual Misconduct Policy by engaging in sleep[ing] sex, the [Petitioner's] argument regarding the hearing panel's discussion of the timeframe of consent is therefore moot and has no bearing on the outcome.

We find the [Petitioner] and the Complainant testified to agreeing to engage in 'sleeping sex.' This agreement on its face is a violation of the policy. The policy explicitly outlines that 'Someone who is incapacitated cannot consent. A person is incapacitated when the person cannot make a rational, reasonable decision because the person lacks the ability to understand their decision. A person can become incapacitated as a result of, among other things, physical or mental impairment, involuntary physical constraint, sleep, unconsciousness, or consumption of alcohol or other drugs.' This language is consistent with New York State Education Law Article 129-B § 6441 (2) (d) which states that consent cannot be given when a person is incapacitated.

The [Petitioner] cites a text message and the letter from the Complainant as support of his assertion of consent, but rather this evidence proves that the parties intended to violate the policy. Both the [Petitioner] and Complainant testified that following their communication(s) on 'sleeping sex,' the [Petitioner] penetrated the Complainant while she was sleeping. This testimony is an admission of violating the policy, and we therefore do not see any procedural irregularities that affected the outcome. The hearing panel correctly found that the [Petitioner] violated the policy.

The parties both admit to an agreement to engage in 'sleeping sex.' Although the parties dispute the terms of this agreement, the testimony supports an agreement to engage in 'sleeping sex.' This agreement is a direct violation of the Pratt Title IX and Sexual Misconduct Policy and the New York State Education Law. Through their testimony, both parties indicated they believed that they could engage in this activity which indicates their lack of understanding of the requirements of consent and incapacity under the policy and the law. The hearing panel correctly found that the [Petitioner] violated the policy."

To understand the rationale for the foregoing findings, a brief explanation of the underlying events is warranted. While freshmen in Pratt, Petitioner (a male) and Complainant (a female), starting dating in September 2022 and progressed to a steady sexual relationship in October 2022.^[FN5] In November and/or December 2022, Petitioner (while awake) had engaged in [*3]one or more instances of initiating sexual intercourse by penetrating Complainant with his penis while the latter was asleep.^[FN6] From a medical standpoint, the Petitioner was actively practicing "somnophilia," which "generally refers to a sexual interest in engaging in sexual activity with a sleeping person," whereas Complainant was passively experiencing "dormaphilia" as "the recipient of sexual activity while asleep."^[FN7]

Pratt's sexual misconduct policy defines "[s]exual assault" as "having or attempting to have sexual contact with another individual without consent or where the individual cannot consent because of ... temporary ... mental incapacity."^[FN8] The sexual misconduct policy and the [*4]corresponding provision of the "Enough is Enough Law" (Education Law § 6441 [1]) defines (in relevant part):

"Affirmative consent [as] a knowing, voluntary, and mutual decision among all participants to engage in sexual activity. Consent can be given by words or actions, as long as those words or actions create clear permission regarding willingness to engage in ... sexual activity. Silence or lack of resistance, in and of itself, does not demonstrate consent."^[FN9]

More fundamentally, the sexual misconduct policy — and the corresponding provisions of the "Enough is Enough Law" (Education Law § 6441 [2] [a] and [c]) — caution that "[c]onsent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act," and that "[c]onsent may be initially given but withdrawn at any time."^[FN10]

As noted, the appeal panel found that Petitioner violated Pratt's sexual misconduct policy because, on at least one occasion, he sexually penetrated Complainant while the latter was sleeping.^[FN11] In this proceeding, Petitioner contends that he did not (and could not) violate the policy because, in a prior text message (which was exchanged at least 24 hours before his initial encounter with Complainant for the somnophilic/dormaphilic sex), Complainant communicated to Petitioner about — and consented in some undetermined future to submit to — such sex with him.^[FN12] Reduced to its essence, Petitioner's argument is that a contemporaneous consent to the somnophilic/dormaphilic sex should not be required where, as here: (1) the parties are known to each other and are in a pre-existing sexual relationship, and (2) they previously discussed and generally consented to this particular type of sexual practice.^[FN13] Petitioner argued to the appeal panel that "neither Pratt policy nor any law mandates [that he must] reconfirm consent [to the somnophilic/dormaphilic sex] that was [previously] given [to him by Complainant] voluntarily [*5]and knowingly."^[FN14] Further, Petitioner pointed out that, as a practical matter, his waking up Complainant merely to obtain her contemporaneous consent would have defeated the fundamental purpose of this paraphilia which depends on her remaining unconscious before his penile penetration of her.^[FN15]

As a threshold matter, although Pratt denominated its pre-answer motion as one, pursuant to CPLR 3211 (a) and 7804 (f), to dismiss the petition, it presented arguments addressed to the merits of so much of the appeal panel decision as found Petitioner guilty of sexual assault and imposed discipline. Where, as here, "the dispositive facts and the positions of the parties are fully set forth in the record, thereby making it clear that no dispute as to the facts exists and that no prejudice will result from the failure to require an answer, the court may reach the merits of the petition." Matter of Pittman v Adelphi Univ., 240 AD3d 908, 910 (2d Dept 2025) (internal quotation marks omitted).

"[P]rivate schools are afforded broad discretion in conducting their programs, including decisions involving the discipline . . . of their students." Matter of Ibe v Pratt Inst., 151 AD3d 725, 726 (2d Dept 2017) (internal quotation marks omitted). "Judicial review of the actions of a private school in disciplinary matters is limited to a determination as to whether the school acted arbitrarily and capriciously, or whether it substantially complied with its own rules and regulations." Id. (internal quotation marks omitted). "The court must then review whether the university's determination is rationally based upon the evidence; otherwise[,] the determination is arbitrary and capricious." Matter of Warner v Elmira Coll., 59 AD3d 909, 910 (3d Dept 2009).

"Moreover, a student subject to disciplinary action at a private university is not entitled to the full panoply of due process rights." Matter of Aryeh v St. John's Univ., 154 AD3d 747, 748 (2d Dept 2017) (internal quotation marks omitted). "Such an institution need only ensure that its published rules are substantially observed." Id. (internal quotation marks omitted).

The appeal panel's determination that Petitioner violated Pratt's sexual misconduct policy was rationally based on the record evidence, and was not arbitrary or capricious. Petitioner admitted on the record that, on at least one occasion, he sexually penetrated Complainant while the latter was asleep. That was sufficient, in and of itself, to constitute a violation of Pratt's sexual misconduct policy and the underlying legislation in Education Law § 6441 (2) (d) that "[c]onsent cannot be given when a person is incapacitated, which occurs when an individual [*6]lacks the ability to knowingly choose to participate in sexual activity. Incapacitation may be caused by the lack of consciousness or being asleep" (emphasis added).^[FN16] See Matter of P.C. v Stony Brook Univ., 43 NY3d 574, 581-582 (2025); Matter of Jacobson v Blaise, 175 AD3d 1629, 1632 (3d Dept 2019), lv denied 35 NY3d 901 (2020), cert denied 141 S Ct 258 (2020).

Although petitioner makes much of the fact that Complainant previously and generally consented to the future somnophilic/dormaphilic sexual encounters, her previous and general consent did not absolve Petitioner from obtaining from her contemporaneous and specific consent to the particular encounter. Considering Petitioner's on-the-record admission that on at least one occasion he sexually penetrated the Complainant while the latter was asleep, the appeal panel's conclusion that she lacked the capacity to provide a contemporaneous and specific consent to the particular encounter was not arbitrary or capricious. As noted, Pratt's sexual misconduct policy provided (in accordance with by Education Law § 6441 [2] [a] and [c]) that "[c]onsent to any sexual act or prior consensual sexual activity between or with any party does not necessarily constitute consent to any other sexual act," and that "[c]onsent may be initially given but [may be] withdrawn at any time.^[FN17]

Criminal law (which uses a much higher standard of proof than the lower, preponderance of evidence standard, which was applied in this case) is in accord. See People v Wells, 138 AD3d 947, 949-950 (2d Dept 2016) ("Physical helplessness means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. This Court and others have found that definition to include a victim who was asleep at the beginning of the incident.") (internal citations and quotation marks omitted; emphasis added), lv denied 28 NY3d 902 (2016); People v Manning, 81 AD3d 1181, 1181 (3d Dept 2011) ("physical helplessness is defined broadly and may include a sleeping victim"), lv denied 18 NY3d 959 (2012); People v Copp, 169 Misc 2d 757, 759 (Rochester City Ct 1996) ("It is axiomatic that sleep is the antithesis of awareness. It is that periodic state of rest in which consciousness is suspended. Whether induced by drug, or achieved by normal processes, being in the state of sleep renders one unable to make a conscious choice.") (emphasis added). See also Penal Law § 130.00 (7) ("'Physically helpless' means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act.").

Petitioner's citation in his notice of appeal to R v J.A., 2011 SCC 28, [2011] 2 S.C.R. 440 (Can.), reversing R. v J.A. (2010), 100 O.R.3d 676 (Can. Ont. C.A.), a Canadian criminal prosecution arising out of the bondage/domination session which started with the consensual erotic asphyxiation of the submissive female by the dominant male and was followed, during her ensuing loss of consciousness, by the dominant male's non-consensual sex with her, is (in Petitioner's words) "worth review from a pragmatic, logical, rational, and legal basis."^[FN18] According to Petitioner, "[t]he appellate courts that considered the case diverged in their analysis of this issue, with an appellate court finding that there was 'no basis for holding that, as a matter of general principle, a person cannot legally consent in advance to sexual activity expected to occur while the person is either unconscious or asleep.'"^[FN19]

Petitioner failed to note, however, that, on further appeal, the Supreme Court of Canada reversed and reinstated the dominant male's conviction for sexual assault of the submissive female. In that regard, the Supreme Court of Canada held that the legislative "definition of consent does not extend to advance consent to sexual acts committed while the complainant is unconscious. The legislation requires ongoing, conscious consent to ensure that women and men are not the victims of sexual exploitation, and to ensure that individuals engaging in sexual activity are capable of asking their partners to stop at any point." R. v J.A., 2 SCR 440 (Canada, Ontario, Sup Ct, 2011) (emphasis added).^[FN20]

The Court considered Petitioner's remaining contentions and found them unavailing or moot in light of its determination. All relief not specifically granted herein is denied.

Accordingly, it is hereby

ORDERED that in Seq. No. 1, the petition is denied; and it is further

ORDERED that in Seq. No. 2, Pratt's motion to dismiss the petition is granted and the proceeding is dismissed in its entirety without costs and disbursements; and it is further

ORDERED that Pratt's counsel is directed to electronically serve a copy of this Decision and Judgment with notice of entry on Petitioner's counsel and to electronically file an affidavit thereof with the Kings County Clerk.

This constitutes the Decision and Judgment of the Court.