Saturday, February 25, 2012
Matter of Dewitt v. NYS Board of Law Examiners, ____A.D.3d___(3rd Dep't. Dec. 29, 2011), is one of those decisions which you cannot make up. A student was found to have cheated on the bar exam and his exam was nullified. Guess what, he sues. The 3rd Department, in rejecting his lawsuit, explained:
We must disagree with petitioner's contention that the determination is not supported by substantial evidence. Substantial evidence is defined as "such relevant proof as a reasonable mind may accept as adequate to support a conclusion or ultimate fact" (Matter of Berenhaus v Ward, [*2]70 NY2d 436, 443  [internal quotation marks and citation omitted]; see 300 Gramatan Ave. Assoc. v State Div. of Human Rights, 45 NY2d 176, 179 ; Matter of Goldsmith v DeBuono, 245 AD2d 627, 628 ). Here, a proctor testified that she observed petitioner repeatedly craning her neck to look at the exam of the candidate seated next to her during the multiple choice session on the first day of the exam. The same proctor and her three supervisors all testified that they observed petitioner doing the same thing on the second day. Respondent also offered expert proof of strong statistical evidence that petitioner succeeded in copying answers from the other candidate. Although petitioner denied copying and presented her own expert proof challenging the statistical evidence against her, the resolution of conflicting evidence and determination of the witnesses' credibility are within the sole province of respondent and will not be disturbed (see Matter of Rogers v Sherburne-Earlville Cent. School Dist., 17 AD3d 823, 824 ; Matter of Mirrer v Hevesi, 4 AD3d 722, 723-724 ; Doolittle v McMahon, 245 AD2d 736, 738 ).
The more interesting legal question is whether this applicant should be permitted to sit for the bar examinination in the future. I think not, but who am I? Moral of the story. Don't cheat.
Mitchell H. Rubinstein