Opinion
Argued January 8, 1982
Decided February 9, 1982
Appeal from the Appellate Division of the Supreme Court in the First Judicial Department, THOMAS J. HUGHES, J.
Allen C. Cohen for appellant.
Frederick A.O. Schwarz, Jr., Corporation Counsel ( Mary McCorry and Stephen J. McGrath of counsel), for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
We agree that the issue considered by the Appellate Division is governed by Olsson v Board of Higher Educ. ( 49 N.Y.2d 408; see, also, Matter of Hymes v Schechter, 6 N.Y.2d 352) and that the college did not act capriciously or arbitrarily in refusing to round off petitioner's 69.713 grade to a passing grade of 70.00.
Petitioner raised additional points at Special Term concerning violation of her right to due process and the correctness of her answers to two examination questions which her professor marked incorrect. She argues that in reversing Special Term the Appellate Division should have remanded for consideration of those additional points. We disagree, concluding that the record does not demonstrate any infringement of petitioner's right to due process ( Board of Curators, Univ. of Mo. v Horowitz, 435 U.S. 78, 89-90; Matter of Sofair v State Univ. of N.Y. Upstate Med. Center Coll. of Medicine, 44 N.Y.2d 475; see Tedeschi v Wagner Coll., 49 N.Y.2d 652) and that an examination question which requires a student to choose between two possible correct answers as a means of testing the student's judgment is, if subject to judicial review at all, neither arbitrary nor capricious ( Board of Curators, Univ. of Mo. v Horowitz, 435 U.S. 78, 91-92, supra; Matter of Gray v Niesley, 35 Misc.2d 837, 839).
Chief Judge COOKE and Judges JASEN, GABRIELLI, WACHTLER, FUCHSBERG and MEYER concur; Judge JONES taking no part.
Order affirmed, with costs, in a memorandum.