Upon the foregoing papers, the proceeding on a petition commenced by the petitioner, Orion Newby [hereinafter the Petitioner], for a judgment pursuant to CPLR Article 78 [a] annulling a finding rendered by the respondent, Adelphi University [hereinafter Adelphi], as to an academic integrity violation allegedly committed by the Petitioner, [b] expunging all [*2]academic records pertaining thereto, [c] rescinding the penalty imposed, [d] declaring Adelphi's finding and attendant action to be arbitrary and capricious, and [e] reimbursing any tuition and fees tendered by the Petitioner to Adelphi, together with related costs (Sequence #01) and Adelphi's motion for an order pursuant to CPLR 3211 (a) (1) dismissing the petition (Sequence #03) are consolidated for disposition and determined as set forth below.

In August of 2024, the Petitioner, who has been diagnosed with Level 2 Autism Spectrum Disorder, enrolled as a full-time freshman at Adelphi as a participant in the Bridges Program, which is "designed to offer the highest levels of comprehensive, individualized academic, social, and vocational support services to . . . students, who self disclose with nonverbal and neurosocial disorders, including Autism Spectrum Disorder" (NYSCEF Doc No. 1 at ¶¶16,18,19). As part of his Fall 2024 curriculum, the Petitioner enrolled in a course entitled "World Civilization" taught by Professor Micah Oelze [hereinafter Oelze], who was cognizant of Petitioner's participation in the Bridges Program (id. at ¶20).

On November 7, 2024, the Petitioner submitted an assignment to Oelze in the form of an essay [hereinafter the Essay] in connection to which he received assistance from a tutor from the Bridges Program (id. at ¶26). On November 17, 2024, the Essay received a grade of zero from Oelze (id. at ¶27). On November 20, 2024, the Petitioner and Oelze had an in person meeting at which time "Oelze asked whether . . . [Petitioner] had used the generative artificial intelligence . . . program known as Grammarly to write the Essay" in response to which the Petitioner "denied" any such use (id. at ¶28).

On November 20, 2024, Oelze filed an Academic Integrity Violation Report [hereinafter the Violation] with Professor Michael Lacombe [hereinafter Lacombe], Adelphi's Academic Integrity Officer, formally accusing the Petitioner of using a form of "generative" artificial intelligence [hereinafter AI], specifically that of Grammarly (id. at ¶¶29,30; NYSCEF Doc No. 8). As set forth therein, Oelze, concluded that after having employed "Turnitin", an AI detection service which produced an "Al-generated score of 100%", the Essay had "been produced by artificial intelligence" (NYSCEF Doc No. 8). Oelze further stated that when he "asked . . . [the Petitioner] about the . . . [Essay] . . . [h]e told me that it was not fabricated by Al, but that he did use grammarly" (id.). Oelze recommended that the Petitioner be required "to take Adelphi's 3 hour course on how to avoid academic integrity issues in the future" (id.).

On November 20, 2024, the Petitioner responded to the Violation by providing Lacombe with a set of written objections in which he "categorically denied using AI to write the Essay" and maintained that he "did not participate in academic dishonesty" (NYSCEF Doc No. 1 at ¶34;NYSCEF Doc No. 9). In responding to the Violation, the Petitioner made reference to the "Grammarly AI detector" and "zeroGPT", two AI detection programs employed by his parents, which purportedly demonstrated that the Essay had "a 0% chance of [being] AI written" (NYSCEF Doc No. 9).

On December 3, 2024, Lacombe issued a "Notice to Student: Violation" [hereinafter the Determination] to the Petitioner stating that "Oelze has found you responsible for having violated Adelphi's Code of Academic Integrity and reported this incident to the Office of the Provost. The completed violation report form along with the supporting evidence pertaining to this violation will be maintained by . . . [Adelphi] in accordance with applicable laws and regulations" (NYSCEF Doc No. 11). The Determination additionally provided that "[a]s a result of this first [V]iolation" the Petitioner was "being sanctioned to attend a plagiarism workshop . . . within 30 days" and that his failure to "complete the workshop within those 30 days" would [*3]result in "a hold" on his "registration . . . [which would] remain until the workshop has been completed" (id.). The Petitioner was further advised that if he "disagree[d] with this [D]etermination" he could file an "appeal" with Lacombe "to seek a reversal or modification of this [D]etermination and/or to provide additional information to the record of this incident" (id.).

Subsequently, Oelze corresponded with the Petitioner via email dated December 4, 2024, stating he had seen the Determination issued by Lacombe and that he "was under the impression that . . . [Lacombe's] team was going to take your file into consideration, make their own decision as to whether you were responsible for an academic integrity violation, and then give you access to the . . . [plagiarism] workshop. Instead. it seems like their system defaults you as responsible unless you contest the claim again" [hereinafter the Oelze Email] (NYSCEF Doc No. 12). Oelze recommended the Petitioner "[g]o ahead and send . . . [Lacombe] a response email (it can be brief) simply reminding him that you disagree, that your [E]ssay was not written with Al, and that you want the academic integrity office to continue their own conversations about Al" (id.).

On December 5, 2024, the Petitioner sent an email to Lacombe requesting an appeal of the Determination stating that Oelze had "reached out . . . and tried to be kind and helpful, but it does not change the fact that he made a big mistake" (NYSCEF Doc No. 13). The Petitioner further stated that he was not provided with either "a fair and impartial opportunity to be heard" or the assistance of "an advisor of [his] choice", both of which are guaranteed under the Student Bill of Rights as set forth in Adelphi's Code of Conduct [hereinafter COC] (id.; NYSCEF Doc No. 1 at ¶42). On December 7, 2024, Lacombe denied the Petitioner's request for an appeal stating the "group of faculty who reviewed" the Violation "concluded that . . . Oelze's evidence and reasoning meet our standards of evidence" and "[t]he [V]iolation report will remain, and you are still required to attend the [plagiarism] workshop" [hereinafter the Denial] (NYSCEF Doc No. 13).

On July 18, 2025, the Petitioner commenced the within proceeding seeking the relief recited above, including a judgment annulling the Violation and Denial as arbitrary and capricious (NYSCEF Doc Nos. 1-16,56). In opposition, Adephi argues that the Violation and Denial were supported by "rational evidence" and moves for dismissal of the petition pursuant to CPLR § 3211 (a) (1) based upon documentary evidence (NYSCEF Doc Nos. 25-55,57; tr at 26-30). Adelphi stresses, both in its motion papers, as well as at oral argument, that the appropriate policy by which the Violation must be adjudicated is found exclusively in the Code of Academic Integrity [hereinafter COAI] and not the COC (tr at 28-32).

The Court initially addresses Adelphi's application. " 'A motion to dismiss a complaint pursuant to CPLR § 3211(a)(1) may be granted only if the documentary evidence submitted by the moving party utterly refutes the factual allegations of the complaint and conclusively establishes a defense to the claims as a matter of law' " (Bono v Stim & Warmuth, P.C., 215 AD3d 911, 911 [2d Dept 2023] quoting Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d 714, 715 [2d Dept 2022]). Within the purview of the statute, " 'judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable' " can be considered documentary evidence (Xu v Van Zwienen, 212 AD3d 872, 874 [2d Dept 2023] quoting Phillips v Taco Bell Corp., 152 AD3d 806, 807 [2d Dept 2017]). " 'Conversely, letters, emails, and . . . affidavits, do not meet the requirements for documentary evidence' " (id.). Here, the documents submitted by Adelphi in moving for dismissal pursuant to CPLR § 3211 (a) (1) are principally in the form of [*4]internal memos, emails and affirmations none of which constitute documentary evidence within the ambit of the statute and relief thereunder is accordingly inappropriate (Xu v Van Zwienen, 212 AD3d 872, 874 [2d Dept 2023]).

As to the petition sub judice, the Petitioner contends that neither the Violation instituted by Oelze nor the Denial subsequently issued by Lacombe were rationally based and accordingly must be annulled as arbitrary and capricious (NYSCEF Doc No. 15 at pp. 16-21). More specifically, the Petitioner posits that the Oelze Email clearly reveals said professor's "disavowal" of the claims upon which the Violation was premised and, as such, the Violation, together with the ensuing Denial are not rationally based (id.).

" '[P]rivate schools are afforded broad discretion in conducting their programs, including decisions involving the discipline, suspension and expulsion of ... students' " (Matter of VanHouten v Mount St. Mary Coll., 137 AD3d 1293, 1295 [2d Dept 2016] quoting Hutcheson v Grace Lutheran School, 132 AD2d 599, 599 [2d Dept 1987]). "[I]n dealing with and reviewing controversies involving colleges and universities" the "Courts retain a restricted role" (Maas v Cornell Univ., 94 NY2d 87, 92 [1999] [internal quotation marks omitted]) and "[j]udicial 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" (Matter of VanHouten v Mount St. Mary Coll., 137 AD3d at 1295). " 'An action is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts' " (Forbes & Assoc., LLC v Nassau County Dept. of Consumer Affairs, 208 AD3d 480, 481 [2d Dept 2022] quoting Matter of Peckham v Calogero, 12 NY3d 424, 431 [2009]). "When a university has not substantially complied with its own guidelines or its determination is not rationally based upon the evidence, the determination will be annulled as arbitrary and capricious" (Matter of Hyman v Cornell Univ., 82 AD3d 1309, 1310 [3d Dept 2011]).

In the instant matter, the Determination and ensuing Denial were clearly predicated upon the Violation filed by Oelze (NYSCEF Doc Nos. 11,13). However, as the Oelze Email, at a minimum, undermines both the strength and substance of the plagiarism claims alleged in the Violation, this Court finds said Violation and the Denial directly resulting therefrom to be without valid basis and devoid of reason (Forbes & Assoc., LLC v Nassau County Dept. of Consumer Affairs, 208 AD3d at 481).

In addition to the foregoing, Adelphi's COAI applies to a multitude of prohibitions, including acts of plagiarism, which formed the basis of the Violation at issue herein, and permits a student to "appeal" any adverse findings made thereunder (NYSCEF Doc No. 3). Further, Adelpi's COC, which equally applies to allegations of plagiarism, broadly encompasses, without circumscription, "[i]ndividual student conduct matters" and contains a "Student Bill of Rights" applicable to "all matters investigated and resolved through the student conduct process" (NYSCEF Doc No. 2 at pp. 5,14,15). The Student Bill of Rights provides, inter alia, that "[a]ll students have the right to . . . [b]e accompanied by an advisor of choice who may assist and advise a reporting individual, accused or respondent throughout the University disciplinary proceedings including all meetings and hearings related to such proceedings" (id. at p. 14). Here, notwithstanding the COC, the provisions of which do not exempt its applicability to acts of misconduct contemplated by the COAI, the Petitioner was not afforded the opportunity to confer with an advisor of his choice regarding the Violation (Matter of VanHouten v Mount St. Mary Coll., 137 AD3d at 1295;Matter of Hyman v Cornell Univ., 82 AD3d at 1310).

Moreover, the COC requires that a student be provided with a "meaningful opportunity to be heard" and that any findings of misconduct be based upon a "preponderance . . . of the relevant information" (NYSCEF Doc No. 2 at p. 24). However, in issuing the Denial, Lacombe failed to even consider the Petitioner's evidence in the form of the two AI detections programs, which indicated that the Essay was "human written" (Matter of Hyman v Cornell Univ., 82 AD3d at 1310). Finally, as previously noted by this Court during oral argument, the mechanism employed by Adelphi in adjudicating the Petitioner's alleged misconduct functions such that the individual who issued the Determination - Lacombe - was the identical person charged with the responsibility of entertaining the appeal.^[FN1] However, such policy would deliberately thwart a student's right to an avenue of meaningful "appeal" as expressly provided in the COAI and renders the term inconsequential (id.).

The court finds that sufficient information is provided in the context of both the petition and the motion to dismiss, thereby obviating any necessity for the submission of an answer by the Respondent (Kickertz v New York University, 25 NY3d 942 [2015] (a court need not permit a respondent to answer a CPLR article 78 petition if the "facts are so fully presented in the papers of the respective parties that it is clear that no dispute as to the facts exists and no prejudice will result from the failure to require an answer") [internal citation omitted]).

Based upon the foregoing, it is hereby

ORDERED and ADJUDGED, that the petition is GRANTED and the Violation and the Denial are annulled (Sequence #01); and it is further

ORDERED and ADJUDGED, that Adelphi is directed to expunge the Petitioner's academic record with respect to the Violation and any sanction imposed in connection therewith is rescinded (Sequence #01); and it is further

ORDERED and ADJUDGED, that Adelphi's motion for an order pursuant to CPLR § 3211 (a) (1) dismissing the petition is DENIED (Sequence #03).

All applications not specifically addressed are DENIED.

This shall constitute the Decision and Order of the Court.