Eng v State of New York

[*1] Eng v State of New York 2006 NY Slip Op 52396(U) [14 Misc 3d 1203(A)] Decided on October 23, 2006 Ct Cl Schweitzer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 23, 2006
Ct Cl

Jenny Eng, Claimant,

against

State of New York and City University of New York, Defendants.



112445



APPEARANCES:For Claimant:

JENNY ENG, pro se

For Defendants:

ELIOT SPITZER, ATTORNEY GENERAL

By: Ellen Matowik Russell, Assistant Attorney General

Melvin L. Schweitzer, J.

This is defendants' pre-answer motion to dismiss the claim for lack of jurisdiction. Although claimant, proceeding pro se, has not submitted opposition papers, the court finds that defendant CUNY has not met its burden of demonstrating lack of jurisdiction and the motion is denied as to that defendant. The court grants the motion to dismiss the claim against the State of New York as the claim does not state a cause of action against the State. All references herein to "defendant" are to CUNY. [FN1]

The claim, filed June 16, 2006 and served June 23 and 26, 2006, alleges claimant's tuition was miscalculated for the Fall 2004 and Spring 2005 semesters at Baruch College; specifically, that she was charged the non-State resident rate despite having been a resident of New York State. Although the claim alleges an accrual date of May 18, 2006, defendant submits a letter to claimant from CUNY's Office of the General Counsel and Vice Chancellor for Legal Affairs, dated January 24, 2006, advising that claimant's appeal had been denied and that the letter constituted a "final determination" (Exhibit "B" to Notice of Motion). Defendant uses that letter to support its argument that the "claim was served on the Attorney General's Office on June 26, [*2]2006, and on the City University on June 23, 2006 approximately 6 months [FN2] from the final determination letter dated January 24, 2006 and not within the statutory 90 days" (Affirmation in Support, ¶ 6).

What defendant's submission overlooks is that this is not a claim for personal injury or property damage, to which a 90-day limit applies (Court of Claims Act § 10[3]), but rather a claim for "money had and received . . . [that] states a legal cause of action for money damages founded upon an implied in law contract" (Parsa v State of New York, 64 NY2d 143, 149 [1984]) for which the applicable limitation period is six months, not 90 days, from accrual (Court of Claims Act § 10[4]; see also First National City Bank v City of New York Finance Administration, 36 NY2d 87, 93 [1975]). Thus, defendant's argument that the court lacks jurisdiction because the claim was not served and filed within 90 days of accrual is simply wrong.

Next, after arguing that the claim was untimely interposed because it was served and filed more than 90 days from January 24, 2006, defendant contends that "in actuality the claim's date of accrual is the first day of classes in September, 2004 for Fall, 2004 and the first day of classes for Spring, 2005" (Affirmation in Support, ¶ 10). The assertion that the proper accrual date may be some date other than when claimant received the letter in January 2006 may well be correct, but the facts necessary to make such a finding are not before the court. Based on the letter from CUNY counsel, it appears that there is some sort of procedure to review such tuition determinations, including appeals, and that the determination that claimant disputes was not considered "final" until January 2006. Whether claimant was required to exhaust whatever administrative remedy applied in order for it to be determined that her claim "accrued" within the meaning of the Court of Claims Act (which, as defendant notes, requires a finding that damages were ascertainable) cannot be determined based on the limited submissions on this motion.

Accordingly, defendant has not met its burden on this pre-answer motion to demonstrate that the court lacks jurisdiction and the motion must be, and hereby is, denied with respect to CUNY. The motion is granted, as noted, with respect to the State of New York and also with respect to "Baruch College Zicklin School of Business," which is not a distinct legal entity but rather part of CUNY. Defendant shall serve its answer within 40 days of the filing date hereof. Footnotes

Footnote 1:The court considered the Notice of Motion, Affirmation in Support and Exhibits.

Footnote 2:Actually, it was approximately five months after the letter.