Tubbs v Hewlett School

[*1] Tubbs v Hewlett School 2007 NY Slip Op 51219(U) [16 Misc 3d 126(A)] Decided on June 15, 2007 Appellate Term, Second Department 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 15, 2007
SUPREME COURT OF THE STATE OF NEW YORK
APPELLATE TERM: 9th and 10th JUDICIAL DISTRICTS
PRESENT: : RUDOLPH, P.J., McCABE and TANENBAUM, JJ
2006-1186 S C.

Colette Tubbs, Appellant,

against

The Hewlett School, Respondent.

Appeal from a judgment of the District Court of Suffolk County, Fourth District (C. Steven Hackeling, J.), entered April 25, 2005. The judgment, after a nonjury trial, dismissed the action.

Judgment affirmed without costs.

In this small claims action, substantial justice was done between the parties in accordance with the rules and principles of substantive law (UDCA 1804, 1807). The court below properly found on the evidence before it that the contract entitled the defendant school to retain the tuition that had been paid to it for plaintiff's daughter's
education. Plaintiff admitted at trial and in her brief on appeal that she had visited the school and discussed her daughter's health problems with the administration, and that it had been made clear that there would be no tuition refund should her daughter be unable to attend for medical reasons. The contract explicitly provided that "[t]he parent, guardian or surety signing this contract expressly assumes the risk of loss, which may be occasioned in the event a student is withdrawn for medical reasons."

Even if we were to assume that the explicit provision was not enforceable and that plaintiff would be entitled to a refund in the event her daughter had to withdraw for medical reasons, we would nevertheless affirm the judgment of the court below since such withdrawal did not occur in the present case. Rather, as plaintiff admits, she attempted to maintain the school's [*2]involvement in her daughter's education by having its teachers coordinate with home tutors provided by the public school district and having her daughter take defendant's final exams (for which the daughter obtained excellent marks and a report card permitting promotion to the 12th grade). While plaintiff was dissatisfied with the school's efforts, plaintiff's ongoing relationship with the defendant school indicated her intent, throughout the semester in question, that
her daughter would continue to be enrolled there (see Andre v Pace University, 170 Misc 2d 893 [App Term, 9th & 10th Jud Dists 1996]).

Rudolph, P.J., McCabe and Tanenbaum, JJ., concur.
Decision Date: June 15, 2007