New York Inst. of Tech. v Sareen

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New York Inst. of Tech. v Sareen 2012 NY Slip Op 30591(U) February 29, 2012 Supreme Court, Nassau County Docket Number: 23134/08 Judge: Anthony L. Parga Republished from New York State Unified Court System's E-Courts Service. Search E-Courts (http://www.nycourts.gov/ecourts) for any additional information on this case. This opinion is uncorrected and not selected for official publication. [* 1] SHORT FORM ORDER SUPREME COURT- NEW YORK STATE- NASSAU COUNTY PRESENT: PARGA JUSTICE L. HON. ANTHONY I) All' f 6 NEW YORK INSTITUTE OF TECHNOLOGY INDEX NO. : 23134/08 Plaintiff -against- MOTION DATE: 01/04/12 SEQUENCE NO. 001 , 002 SARABJEET SAREEN Defendant. -- ---- ----- --- ---- -- X Notice of Motion , Affs. & Exs...... ............... ... ........................,.... Memorandulll of Law................................................ Notice of Cross- Motion , Affs & Exs......... Memorandum of Law.......... .....,.. Affirmation in Opposition............................................................................................. Memorandum of Law in Opposition....... ... Affidavit....................................................................................................................... . Reply Mel1l0randun1 of Law............... ... Reply Affirn1ation........................................................................................................... Memorandum of Law in Reply.... Upon the foregoing papers , the motion by ddendant Sat' abjeet Sareen for summary judgment , pursuant to CPLR 3212 is denied. The cross-motion by plaintiff New York Institute of Technology (hereinafter "NYIT" ) for leave to amend its verified reply to defendant's counterclaims is granted to the extent directed below , however , plaintiff's application for summary judgment , pursuant to CPLR 3212 , or alternatively pursuant to CPLR 93211(a)(1) and (a)(7), is denied. This is a collection action in which plaintiff seeks to collect $21 259. from October 10 , plus interest 2000 , in tuition payments from the defendant after the defendant's involuntary dismissal from the New York College of Osteopathic Medicine of New York Institute of Technology (hereinafter " NYCOM" [* 2] Defendant Sm" abjeet Sarcen entcrcd NYCOM in the fall semester of 2007. She thereafter failed two of her required courses , resulting in her dismissal from NYCOM on February 12 2008 for poor academic performance. Defendant contends that the plaintiff' s claim for tuition is bascd upon the Student Handbook in effect between the plaintiff and the defendant at the time of her dismissal , which contained a provision which provided for the reimbursement of tuition to studcnts who withdrew from NYCOM , according to a schedule of when they withdrew from the school. The handbook provision at issue included a partial tuition refund to students depending upon the week within the semester at which the student withdrew , and specifically stated that there will be no refund of tuition to a student who withdraws after the start of the fourth week of the semester. As the defendant was dismissed after the fourth week of the semester , NYCOM contends that it is entitled to payment of the full semester s tuition , and that the defendant is not entitled to a refund I-Iandbook. of tuition , in accordance with the " Tution Refund Policy " stated within the Student Defendant claims that nowhere in the provision is there a mention of an obligation of a student who is involuntarily dismissed from the school. The provision states that it pertains to " a student who withdraws " and does not make mention of students who are involuntarily dismissed from the school. In addition , defendant cites to deposition testimony of Thomas A. Scandalis , the Dean of the school , who testified that although the school had a policy regarding tuition payment in case of withdrawal from the school , he was unsure as to whether the school had any policy regarding tuition payment in the event that a student was dismissed. He further testified that withdrawal is initiated by the student , whereas the decision to dismiss a student is made by the school. In addition , defendant contends that Clair Jacobi , the Director of Financial Aid for the plaintiff, testified that the following year , the Student Handbook was altered to add the word dismissal" to " withdrawal" in the identical policy provision. She further testified that the handbook was changed after " staff and students " brought to her attention that the 2007- 2008 handbook policy provision was not clear with respect to same. Ms. Jacobi also testitied, however , that during the orientation for new students entering the Class of 20 J 1 , which included the defendant , the students were specifically advised, before their first tuition payment was duc [* 3] that the Tuition Refund Policy in the handbook applied both to withdrawing and dismissed students. Defendant moves for summary judgment arguing that the ambiguity in the contract (Student Handbook) should be construed against the drafter , in this case the plaintitI, and that the word " withdrawal" should not be construed to encompass " dismissal." As such , defendant contends she is entitled to summary judgment. Plaintiff filed its Note of Issue in this action on May 5 , 2011. Defendant served the within motion on July 5 , 2011 , but failed to file same with the Court until July 15 , 2011 , after the time limit set by this Court' s Certification Order. The Certification Order in this action , dated March 2 , 2011 , specifically states that " (mJotions for summary judgment must be filed within 60 days of the fiing of the note of issue. " Accordingly, the deiendant' s motion was untimely filed. Defendant contends that her motion is timely, as it was timely served upon the plaintiff' s counsel within 60 days after the Note of Issue filing, and that she believed that the motions merely had to be " made " within 60 days , which pursuant to CPLR 92211 would mean that they had to be served within 60 days. The certification order is clear in its statement that summary judgment motions must be filed within 60 days of the filing of the note of issue. As such , by plain reading of the order (Bril v. City ( fNew plaintiffs motion is late and is accordingly denied as untimely. Y.3d 648 , 814 N. E.2d 431 (2004); Andrea v. Arnone 5 N. Micell v. State Farm Mutual Auto. Ins. Co. 3 N. York , 2 3d 514 , 840 N. 2d 565 (2005); 3d 725 , 819 N. 2d 995 (2004)). Regardless of same , however , there are several questions of fact which would preclude the granting of summary judgment to the defendant (or the plaintiff) herein , had the motion bcen timely filed. The Student Handbook states the tuition shall not be refunded where a student withdraws " any time after the start of the fourth week of the semester , and nowhere in the provision does it specifically state that the term " withdraws " includes , or does not include students who are dismissed. It is the primary rule of construction of contracts that when the terms of a writtcn contract are clear and unambiguous , the intent of the partics must be found within the four corners of the contract , giving a practical interpretation to the language employed and the parties ' reasonable expectations. (Slamow v. Deleol 174 A.D. 2d 725 , 726, 571 N. [* 4] 756 (1986); M Enters. 67 N. Van Wagner Adv. Corp. v. S 335 (2 Dept. 1991); 538 Vermont Teddy Bear Co. v. 2d 186 , 191 492 N. Madison Realty Co. 1 N. Y.3d 470 , 475 2e1 807 N. 876 (2004). A contract provision is ambiguous , however , if it is reasonably or fairly susceptible (Geothermal fj' ne1XY of different interpretations or may have two or more different meanings. Corp. v. Caithness Corp. 34 AD. 3d 420 825 N. National Westminster Bank 303 A. 2d 271 2d 485 (2d Dept. 20(6); Feldman v. , 760 N. Y.S.2d 3 (151 Dept. 20(3)). A court may not rewrite into a contract conditions the parties did not insert by adding or excising terms under the guise of construction , nor may it construe the language in such a way as would distort the contract' s apparent meaning. 649 , 510 N. Y.S. 2d (lei; See , Marine Assocs. v. New SufFolk Dev. Corp. 125 A. D. 175 (2d Dept. 1986)). Whether an agreement is ambiguous is a question of law for the courts , and ambiguity is determined by looking within the four corners of the (Kass v. Kass 91 N. Y.2d agreement. 554 696 N. 2d 174 (1998)). When a term or clause ambiguous , the parties may submit extrinsic evidence as an aid in construction , and the resolution of the ambiguity is the trier of fact. (Geothermal Ener&'Y Corp. v. Caithness Corp. , 34 AD. 3d 420 , 825 N. Y.S.2d 485 (2d Dept. 2(06)). The applicable provision in the Student Handbook is ambiguous , and the parties proffered extrinsic evidence , namely the deposition testimony of the witnesses herein , is conflcting and fails to clarify the meaning of the provision or the intent of the parties. As such questions of fact exist which warrant the denial of summary judgment. If there is any doubt as to the existence of a triable issue of fact , or if a material issue of fact is arguable , summary judgment should be denied. With respect to summary determination , is the court' s function. Dept. 1995); judgment , issue finding, rather than issue (Celardo v. Bell 222 A.D. 2d 547 , 635 N. Y. 2d 85 (2d Museums at Stony Brook v. Vilage olPafchogue Fire Dep!. 146 AD. 2e1 572 , 536 Y.S.2d 177 (2e1 Dept. 1989)). In addition , plaintiff's cross-motion for summary judgment , pursuant to CPLR 93212 alternatively for dismissal pursuant to CPLR , or 32l1 (a)(1) and (a)(7), is also denied as untimely. Plaintiff did not fie the its cross-motion until September 15 2011 , four months after the filing of the Note ofIssue , and two months after the time limit set in the Certification Order expired. The plaintiff's excuse that it changed counsel one month afier the expiration of the time to move for [* 5] summary judgment is insuffcient to demonstrate " good cause " to warrant the granting of leave to (Bril file a late summary judgment motion. v. (2004); Andrea Auto. Ins. Co. Arnone v. City of New York 2 N. Y.3d 648 , 814 N. 3d 514 , 840 N. 3 N. Y.3d 725 , v. Micell 2d 565 (2005); 2d 431 State Farm Mutua! 819N. E.2d 995 (2004)). With respect to the portion of plainti ff' s motion which seeks to amend its Reply to defendant's counterclaims , with the proposed Supplemental Verified Reply annexed as Exhibit R" to its cross-motion, same is granted to the extent that plaintiff's Supplemental Verified Reply is deemed an Amended Verified Reply and , as such , supersedes and replaces the initial Reply to Counterclaims and becomes the only Reply. Svc. , Inc. 11 AD. 3d 650 , 782 N. Y.S. 2d 919 (2d Dept. 2004); Misc. 3d v. (Elegante Leasing, LId. Cross Trans. Metcalfv. Progressive Ins. , 29 1225(A); 918 N. Y.S. 2d 398 (Sup. Ct. Kings Cty. 2(10)). CPLR 93025(b) states that " party may amend his pleading, or supplement it.. at any time by leave of court or stipulation of all paries. Leave shall be freely given upon such terms as may be just... " Leave to amend a pleading is to be freely given where , as here , there is no showing of genuine prejudice or surprise to the nonmoving party, and no showing that the proposed amendment is " palpably insuf1cient as a matter of law" or " totally devoid of merit." Y.S. 2d 4 J 0 (2d Dept. 2005); (Consolidated Payroll Services , Inc. v. Berk, 794 Bolanowski v. Trustees ( lColumbia Universizy in City o/New York 21 AD. 3d340 , 800 N. Y.S.2d 560 (2d Dept. 2005); 596 848 N. Y.S. 2d 174 (2d Dept. 2007); Alatorre v. flee Ju Chun 44 A.D. Maspeth Federal Savings and Loan Ass ' 67 A.D. 750 , 888 N. Y.S. 2d 599 (2d Dept. 2009)). Mere lateness is not a barrier to the amendment of" pleading. It must be lateness coupled with significant prejudice to the other side. Contr. Co. , Inc. v. City of New York 60 N. 2d 957 Kings County v. Hossain Constr. Corp. 27 A. 471 N. Y.S. 2d (Edenwald 55 (1983); Public Adm ' r oj" 3d 714 , 815 N. Y.S. 2d 621 (2d Dept. 20(6)). Additionally, a plaintiff seeking to amend a pleading is not rcquired to establish mcrit of the proposed amendment , but the proposed amendment must fit within a cognizable legal theory as a defense (or cause of action). (Lucido v. Mancuso 49 AD. 3d 220 , 851 N. Y.S. 2d 238 (2d Dept. 2008)). In the instant matter , the defendant has not demonstrated that she would be pr surprised by the amendment of plaintiff's Reply to her counterclaims. (5' jlldiced or , Ricchezza v [* 6] Metropolitan Pro mp. Uf h. 79 A. D 3d 998 , 914 N. Y. S.2d 903 2010)( COUl1 properly granted defendant leave to amend its answer to include a statute (2d limitations defense where the of Dep'- plaintiff failed to demonstrate any prejudice or surprise resulting from the delay in amending the pleading). While deJendant argues that she is prejudiced in that she would have considered an ealier settlement offer rather than rejecting said offer if she knew that the plaintiff would he raising statute of limitations and CPLR Article 78 defenses (that offer heing that the plainti would withdraw its claims agai nst hcr if she wnuld withdraw her clai noted hy the p lainti IT in its m s against pi ai n I i it), "s reply memorandum to the instant motion Flickinger makes it clear that , the amd avit 0 f Ca theri nc plaintiffs offer to discontinue its claims against the de/end,nt if she discontinues her claims against NYIT rcmains open. Further , the plainti!f is not asserting Reply to defendant's counterclaims contend that plaintiffs proposed amendcd Reply , and delendant does nol involvcs changes in fact which would have any additional new facts within its affected how she prosecuted her counterclaims or condocted discovery in this Accordingly, plaintiff is gmnted leave to amend its Reply to dcfendaot' matter s coonterclaims as annexed to her cross-motion as Exhibit " " and same is deemed served upon the defendant. Cc: David Ze\ in , Esq. 55 Cedar Drive Roslyn. '\ Y 11576 Law Oticcs of Elan Rad 676A Ninth Avenuc. SUIte 301 New York , NY 10036 ENTERED . M 0120\1 MAS& cOUM'TY Clf. :J:ftCf

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