Baxter v Columbia Univ.

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Baxter v Columbia Univ. 2008 NY Slip Op 33693(U) October 10, 2008 Supreme Court, New York County Docket Number: 303121/2007 Judge: Betty Owen Stinson Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various state and local government websites. These include the New York State Unified Court System's E-Courts Service, and the Bronx County Clerk's office. This opinion is uncorrected and not selected for official publication. [* 1] SLJPREME COURT OF TIIE STATE OF NEW YORK COUNTY OF BRONX: IAS PART 8 ----------------------··------------------------------------------X BR1AN BAXTER, on behalf of the FIRSTGENERATlON. LOW INCOME COLLEGE STUDENT. Plaintiff. -againsl- INDEX N~ 303121/2007 DECISION/ORDER COLUMBIA UNIVERSITY. MARY HARSH and CITIBANK (N.A.). Defendants. -----------------------------------------------------------------)( rroN. BETTY OWEN STINSON: This motion by defendants Citibank (N.A.) ('"Citibank") and Nancy Harsh. s/h/a Mary Harsh. for an order dismissing the plaintiffs complaint against them is granted. Pluintiff Brian Baxter (''plaintiff' herein) attended Columbia University (.. Columbia'') as an un<lergrnJuate student beginning in 1987. and as a graduate ~tudent beginning in 1992. Plaintiff apparently received some scholarship help from Columbia and financed the remaining. tuition and other school expenses with student loans from Citibank at an annual interest rate of 8.25%. According to plaintiff, the original principal amount of his loans altogether was $65.000. Although plaintiff made some payments on the loans. he eventually defaulted on his promissory notes. kaving the amount of $95,931.82 to be paid by the government guarantor. In 2007 plaintiff commenced this action against Columbia, Citibank and Nancy Hursh. alkging Columbia and Citibank had a confidential agreement by which Columbia would steer students to Ci ti hank as Columbia "s prefrrred lender for student loans. even though other lending Filed On - 10/17/2008 8:04:32 AM Bronx County Clerk [* 2] --- ----- ----- - institutions were offering interest rates 0.25~1c1 lower than Citibank's. In the complaint as it related to Citibank. plainll ff alleged breach of contract, fraud and deceptive business practices. Plaintiff alleged that. at some point. he had an offer from Midland Marine Bank for a loan with a lower interest rate than that offered by Citibank and wanted to borrow from Midland Marine, but vrns misled by Columbia·s and Citibank's silence regarding their agreement. Because of that silence. plaintiff bclic\ cd he v.as '"obligated" to use Citibank as his lender or be ineligible for financial aid. Had he known of the agreement, he would have made mon.: informed decisions in his choice of lenders. The pmticipation of Nancy I larsh. a Citibank employee. was limited to signing one of the documents relating to the loans once the) v.ere in default. Citibank made the instant motion to dismiss in lieu of an answer, arguing that the limitations pcrioc.b flw plaintiffs causes of action have expired. plaintiff has failed to state a cause of action for either breach of contract. fraud or deceptive business practices. and hus alleged no fact~ at al I to support a cause of action as against Nancy Harsh. An action may be dismissed on the motion of any party upon a showing that the statute of limitations has expired (Civil Practice Law and Rules l'"CPLR"J § 3211 fal[Sl) or that the pleading fails lo state a cause of action (CPLR § 3211[al[7]). On a motion to dismiss a complaint, the court must take all allegations in the complaint as true and resolve all inferences which reasonably flow therefrom in favor of the pleader ( C'rem The limitations period for a claim i·. I largro Fahncs, Inc. 91 NY2d 362 [ 1968]). ofbr~ach of contract is six years {C'PLR § 21312]). The limitations period for a claim of fraud is the greater of six years after the cause of action accrued. or two years from the time the plaintiff discovered the fraud or with reasonable diligence ~oul<l have discovered it (CPLR § 213f81). The burden of establishing that fraud could not have bet:n 2 Filed On - 10/17/2008 8:04:32 AM Bronx County Clerk [* 3] discoYcrcd during the tv•o-year period before commencement of an action. for limitations purposes. rests on the plaintiff who seeks the benefit of a discovery exception to the six-year statute of limitat1ons (Percoco v. Lesnak. 24 AD3d 427 I2"J Dept 2005]). Any cause of action for \.vhich no limitations period is prescribed by law has a limitations period of six years (CPLR § 2131 ll). In an action to recover damages for fraud. the plaintiff must prove a (I) misrepresentation or a material omission of fact which \Vas false and known to be false by the defendant. (2) made for the purpose of inducing the plaintiff to rely on it, (3) justifiable reliance by the plaintiff on the misrepresentation or material omission and (4) injury to the plaintiff as a result (Lama Holding v Smith !Jamc:y. 88 NY2d 413 l1996l). Regarding plaintitrs cause of action for breach of contract, it is undisputed that the latest contract bctwL"en plaintiff and Citibank was signed in 1992. more than six years before this action was commenced. In order to take advantage of the two-year statute of limitations for fraud, plaintifl: at a minimum, had to specify when he learned of the behavior allegcu to be fraudulent. Plaintiff has remained consistently silent on that point and cannot. therefore, have the benefit of the shorter limitations period. The allegedly deceptive business practice. i.e tht.: failure of Citibank to d1sclosc to the plaintiff an agreement with Columbia, took place in 1992 at the latest, more than six years ago. Plaintiff brought this action more than fifteen years after the subject events and all his cause of action arc, therefore. barred by the statute of limitations. Furthermore. plaintiff has not stated a cause of action for breach of contract by Citibank. Plaintiff admitted :1c \\as aware of a loan offer for less interest than that charged by Citibank at the time he borrowed loan amounts from Citibank, but he signed the contract with Citibank 3 Filed On - 10/17/2008 8:04:32 AM Bronx County Clerk [* 4] nevertheless. B) his own account, it was he v;ho breached the contract by failing to make payments on the loan. Plaintiff did not allege any facts tending to show that Citibank misled lum as to the terms of the contract rather he alleged it was the financial aid office of Columbia that pro\ ided h11n \\.Ith loan applications and led him to contract with Citibank. Tht!re is, therefore. no hasis stated in the complaint for a cause of action alleging fraud or deceptive husincss practices against Citibank. Finally. there arc no facts alleged to support any claim of fraud, misrepresentation or deception on the part of Nancy Harsh. rhc complaint as against defendants Citibank (N.A.) and Mary Harsh is, for the foregoing reasons. dismissed. This constitutes the decision and order of the court. Dated: October /(.') . 2008 Bronx. Ne"v York 4 Filed On - 10/17/2008 8:04:32 AM Bronx County Clerk

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