Thomas v County of Westchester

[*1] Thomas v County of Westchester 2020 NY Slip Op 20188 Decided on July 31, 2020 Supreme Court, Westchester County Giacomo, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on July 31, 2020
Supreme Court, Westchester County

Keith Thomas, Plaintiff,

against

The County of Westchester and FACULTY STUDENT ASSOCIATION OF WESTCHESTER COMMUNITY COLLEGE INC., Defendants.



66883/2015



Attorneys for Defendant Faculty Student Association

Of Westchester Community College

Wilson, Elser, Moskowitz, Edelman & Dicker LLP

John M. Flannery, Esq.

Allison Holubis, Esq.

Attorneys for the County of Westchester

John M. Nonna, Westchester County Attorney

Jane Hogan Felix, Esq.

Jordan L. Silver, Esq.

Attorneys for Plaintiff

Cohn & Spector

Julius W. Cohn, Esq.

Wendy Wells, Esq.
William J. Giacomo, J.

In an action to recover damages for negligence (1) the defendant Faculty Student Association of Westchester Community College Inc. (motion sequence No.7); and (2) the defendant The County of Westchester (motion sequence #8) separately move, pursuant to CPLR [*2]4404, to set aside the jury verdict on the issue of liability and for judgment as a matter of law or, in the alternative, to set aside the verdict on the issue of liability as contrary to the weight of the evidence and grant a new trial.

Papers Considered

NYSCEF Doc. No. 310-348; 350-357

Notice of Motion/Affirmation of John M. Flannery, Esq./Exhibits A-T;

Affirmation of Julius W. Cohn, Esq. in Opposition/Exhibit 1;

Notice of Motion/Affirmation of Jordan L. Silver, Esq./Exhibits A-M;

Affirmation of Julius W. Cohn, Esq. in Opposition/Exhibit 1;

Reply Affirmation of John M. Flannery, Esq./Exhibit U;

Memorandum of Law in Reply.

Factual and Procedural Background

This action arises from a transcript scandal among the men's basketball team at Westchester Community College ("WCC"). Between January 2011 and May 2014, plaintiff Keith Thomas attended WCC and played on the men's basketball team under head coach Tyrone Mushatt. Thomas was offered a scholarship to play NCAA Division I basketball at St. John's University for the 2014-2015 season.

In October 2014, it was revealed that Thomas' admission to St. John's and eligibility to play Division I basketball was based upon a fraudulent WCC transcript. After the transcript scandal was exposed, six days before the first game of the season, Thomas' scholarship and admission to St. John's University was revoked. The scandal forced WCC to cancel the remainder of its 2014-2015 basketball season.

Ultimately, Mushatt plead guilty to criminal possession of a forged instrument in the second degree and conspiracy in the fifth degree before the Westchester County Court (Warhit, J.) (383).

Thomas commenced this action seeking damages against The County of Westchester[FN1] and Faculty Student Association of Westchester Community College Inc. ("FSA"). FSA is a fiduciary agent to WCC and provides auxiliary services to WCC. Mushatt, assistant basketball coach Richard Fields, and WCC Athletic Director Larry Massaroni, were all employed by FSA.

Liability Trial

A liability trial was held before this Court and a jury between January 28, 2020, and February 6, 2020[FN2] . The following relevant testimony was elicited.

WCC was a member of the National Junior College Athletic Association ("NJCAA") which is an association for all junior and community colleges nationwide broken out into regions. There are regional playoffs and conference playoffs, with the ultimate goal of the athletic teams to obtain entrance to a national tournament (145-146).

The National Collegiate Athletic Association ("NCAA") is a membership of the four-year colleges and universities throughout the country. There are three different levels in NCAA [*3]sports: Division I, Division II, and Division III. St. John's University is a member of Division I of the NCAA.

Trial Exhibits

On October 23, 2013, the NJCAA received an email from an anonymous source using the pseudonym "Ron Mexico". The NJCAA forwarded the email to Joe Hankin, then President of WCC, who forwarded it to Donald Weigand, the WCC vice president and dean.

The Ron Mexico email stated that the basketball coach at WCC had committed fraud and had been cheating for years by changing the grades of some of his star players giving them passing grades and adding credits for classes never taken. The email identified Coach Mushatt by name and stated that he tampered with official school transcripts for some of his past players in an effort to have non-qualified players participate in games or sent to Division I and Division II schools.

The Ron Mexico email specifically identified another player, who the Court will refer to as JW, who played for Mushatt in the 2012-2013 season. JW had played for Tompkins Cortland Community College during the 2011-2012 season. The email stated that Mushatt had JW playing for WCC under another students' name on the official roster. After the season was over, JW was offered a scholarship to Long Island University - C.W. Post. The email further stated that the coach at C.W. Post requested an official transcript from WCC and "what he received was so unbelievable of a transcript" that the coach pulled JW's scholarship offer. The email went on to state that JW's official WCC transcript showed 45-50 credits completed in one school year with a B to B+ average. The transcript received from Tompkins Community College however indicated that JW completed only 6 credits in two semesters with a D average. The Ron Mexico email further stated that the WCC transcripts received were official and that Mushatt had access to the official school computer data base and was able to make permanent changes in the system.

Trial Testimony

Plaintiff's Case

Richard Fields testified that he was an assistant coach for the men's basketball team for WCC during the time Thomas played. Fields testified that Thomas was a national leader and rebounder in the country and averaged 25 rebounds a game. Fields was terminated from his position as assistant coach in October 2014. Fields testified that he had no knowledge that Mushatt was forging any transcripts (110).

Donald W. Weigand was the vice president and dean of student affairs for WCC. Portions of Dean Weigand's deposition transcript were read to the jury as part of plaintiff's case in chief. Dean Weigand testified that Mushatt reported to Larry Massaroni, the athletic director (149). Mushatt, Fields, and Massaroni were employed by FSA (168-169). Mushatt reported to Massaroni and Massaroni reported directed to Dean Weigand (151).

Weigand testified that he received the Ron Mexico email from the associate provost of the State University of New York and from the WCC president (135). After receiving the email, Weigand alone conducted an in-house inquiry into the allegations (135). On October 24, 2013, Weigand responded to the SUNY provost and the NJCAA with the results of his investigation of the Ron Mexico email (140). Based upon his investigation which included speaking with the registrar, Mushatt and Massaroni, Weigand concluded that no one in the athletic department had the ability or clearance to change a transcript grade as official transcripts are sent sealed directly from the registrar's office to another institution; Mushatt had no access to JW's school records and there was never any eligibility filed for JW; and JW did not appear in the WCC official team [*4]photo (140-141). Based upon his conclusions, Weigand considered the investigation into the Ron Mexico email completed (148-149).

However, after the fraud was uncovered, the Inspector General commenced an investigation into allegations of forged transcripts and the WCC basketball team. Ultimately, on November 13, 2014, Weigand cancelled the WCC 2014-2015 basketball season and directed Massaroni to release the entire WCC basketball staff (149-150, 170). This decision was made without any consultation with FSA (170). The athletic program was controlled by WCC under the department of student affairs (174). The financial part of the athletic program was controlled by FSA (174).

Douglas Trani testified that he was the associate athletic director for compliance at St. John's University (177). He worked in the compliance office within the Department of Athletics (177). The compliance office is responsible for compliance with rules and regulations related to the NCAA Big East Conference and St. John's University rules and regulations (178). The NCAA manual of rules and regulations is around 500 pages and there are new rules and regulations that get adopted every year (179). Trani was responsible for having knowledge of the rules and to ensure that the university was adhering to them (179).

The NCAA is a membership of four-year colleges and universities throughout the country. There are three different levels in NCAA sports: Division I, Division II, and Division III. Each school identifies the membership they want to join and there are minimum requirements to meet. Division I is the top division and most student athletes aspire to reach Division I to compete against the best (178-179). Division I is typically the population of student athletes that compete on television and is a pathway for these athletes to play professional ball (179, 225).

Trani testified that most junior college students understand that they need to graduate with an associate degree to transfer to a Division I school. There are also additional requirements. He testified that students may not know the nuances "but more times than not they do know they need to graduate with their associate[] degree" (183).

Trani explained that a nonqualifier[FN3] would enroll at a two-year college in order to earn an associate degree and then transfer to play Division I sports (183, 251). In order to transfer to a four year Division I institution, the student athlete would have to meet certain requirements which include earning an associate degree, having at least six transferable credits in English, three transferable credits in math, three transferable credits in science, and at least a 2.5 cumulative transferrable GPA (183-184). Trani testified that its very complicated to meet the eligibility requirements to transfer from a two-year college (184). Thomas had to meet all of these requirements to transfer from WCC to St. John's University (184).

Trani testified that Thomas was accepted into St. John's (185). Trani did not discuss the Division I transfer requirements with Thomas (185). According to Trani, there are approximately 20,000 under-graduate and graduate students enrolled at St. John's University and 17 or 18 students on the basketball team (185-186). Trani met with Thomas when he was a student at St. John's and a member of the basketball team. Thomas was recruited to St. John's University and offered a scholarship (186-187).

Through correspondence dated May 21, 2014, St. John's formally advised Thomas that he was awarded an athletic grant made of full tuition, fees, books, and room and board for the 2014-2015 academic year (189). This scholarship offer was contingent upon Thomas meeting the eligibility requirements (192). The letter stated that in order to receive the athletic aid, Thomas must meet and maintain all academic eligibility requirements for athletic participation and financial aid established by the Big East Conference and St. John's University (231). Typically, this letter goes out to the student athlete in their final year at a two-year college with the expectation that the student would earn a degree (193).

Thomas accepted the offer and signed his financial aid agreement and national letter of intent (194, 210). Tuition for a full-time student living on the Queens campus for the 2014-2015 academic year at St. John's, including fees, books, room and board, personal expenses, and transportation was $57,429 (202-203). Trani explained that each scholarship at St. John's is a one-year renewable scholarship provided that the student athlete is in good standing academically with the University (239-240).

Trani testified that, pursuant to Thomas' online transfer application to St. John's University, Thomas represented that he would earn an associate degree at the time of his planned enrollment at St. John's (236-237). Thereafter, in September of 2014, after arriving at St. John's, Thomas filled out a document entitled academic athletic history stating that he received an associate degree (238). Upon enrolling, Thomas took three three-credit courses at St. John's during the summer session of 2014. He received one A and two Bs (190).

However, as Trani testified, Thomas never actually played on the St. John's basketball team because he was deemed ineligible to be a student or receive a scholarship after it was discovered Thomas was admitted to St. John's based upon a forged transcript (192, 197).

Trani testified that he discovered the fraud after reading a newspaper article about forged transcripts from WCC concerning another basketball player. He testified that he immediately contacted the registrar's office at WCC to inquire about Thomas and was asked by WCC to send a copy of the transcript that St. John's had received for Thomas (199). The forged transcript received by St. John's appeared to be an official transcript (209). However, Trani subsequently learned that the transcript was not a valid transcript (199). He later received a copy of Thomas' actual transcript (199).

As a result of this inquiry, St. John's notified Thomas by letter dated November 18, 2014, that it had come to the school's attention that his application for admission contained material misrepresentations involving his prior enrollment at another school. Thus, effective immediately, his admission to St. John's was cancelled (215).

Trani was informed by WCC that Thomas was welcome to return to the school to finish his associate degree (244). Trani communicated this information to Thomas (244). Trani testified that at this point the best option for Thomas was to return to WCC and get his associate degree and then he would potentially have other opportunities (261).

Trani confirmed that NCAA guidelines require that in order to go from a junior college to a Division I college, a student athlete is required to have an associate degree plus a certain percentage of credits towards an actual degree in a four year program (226). Based upon his actual transcript, Thomas did not meet the academic requirements to be admitted and eligible to play basketball at St. John's (231). Trani explained that the reason Thomas' admission was rescinded by St. John's was because Thomas never met the qualifications to be admitted or receive an athletic scholarship (232). Trani testified:

Q. So [Thomas] wasn't eligible to play on the basketball team at Saint John's based on the record that we now know to be the actual record?A. Yes; and receive an athletic scholarship (232).Q. And there is no question in your mind that Keith Thomas did not meet the criteria necessary to transfer to Saint John's, receive a full athletic scholarship and be eligible to play for St. John's basketball team?A. That's correct (246-247).Q. When Keith Thomas's scholarship was revoked from Saint [John's], that was a scholarship that he was never entitled to receive; is that correct?A. That's correct.Q. And under NCAA rules he was not entitled to receive a scholarship at Saint John's or any other Division [I] school based upon his academic performance; is that correct?A. That's correct (256-257).

Plaintiff did not meet the admissions requirement to play as a student athlete and did not meet the eligibility requirement for athletic participation or financial aid (240-241). Trani testified that if a student is not eligible to play ball at St. John's that student would not be eligible for a scholarship (252).

Trani testified that Thomas' actual transcript showed that Thomas attended WCC in the spring and summer of 2011 (254). However, in his application to St. John's, Thomas stated that he started WCC in the fall of 2011 (254-255). The forged transcript also showed that Thomas started WCC in the fall of 2011 (255). Trani explained the significance of this time frame. In Division I there is what is known as a five-year clock. A student athlete has five years to play four years of competition. Thomas' clock started in the Spring of 2011, which was earlier than the forged transcript indicated, and affected Thomas' remaining eligibility (259).

Trani testified that if Thomas had actually earned his associate degree, he could have potentially received a scholarship from St. John's. However, in terms of his eligibility that is a different story. Thomas' eligibility would have been reviewed and he probably would only have had three semesters remaining on his clock before it expired. Potentially he would have only had one year of eligibility left to compete in Division I (259).

Further, Trani testified that the actual transcript also revealed the percentage of credits toward his degree that Thomas needed to be eligible to transfer (259). Based upon his actual time at WCC, which commenced in spring 2011, Thomas was required to have sixty percent of his degree completed, i.e. about 76 credits (259-260). Trani testified that based upon the actual transcript, Thomas' five-year clock of eligibility started in January 2011 and he only had 46 credits completed. Thomas would have needed 76 credits to transfer to St. John's. Considering that it would take him two semesters to obtain the 30 additional credits required, Thomas would only have had one semester of eligibility left (267).

R. David Ridpath testified as an expert for plaintiff. He is an associate professor of sports business in the department of sports administration college of business at Ohio University and the editor of the Journal of NCAA Compliance (337-339).

Ridpath testified that the specificity of the Ron Mexico email raised a level of scrutiny to trigger an investigation into the allegations (347). Ridpath testified that there was very specific information that should have been looked at and the investigative process should not have involved Mushatt (348). Ridpath stated that as an athletic director he may have taken the step to suspend the coach with pay until the investigation was completed (350).

With respect to the allegations pertaining to JW in the Ron Mexico email, Ridpath testified that JW was a player that was not certified. WCC initially denied that JW ever played in any games but there was videotape and witnesses who saw him play (351). This, Ridpath testified, shows that the oversight of the WCC athletic department was negligent (351-352). Due diligence should have included speaking to other institutions, looking at the transcripts, and not taking Mushatt's word for anything (354). The failure to take such steps by WCC was a departure from accepted standards of educational practice (355). Ridpath testified that the lack of oversight, the lack of leadership, and the lack of responsibility in certifying eligibility of athletes at any level of intercollegiate athletics was not done (359). He testified that the main responsibility of an athletic department is to ensure that the athlete is academically eligible to play (360).

Ridpath stated that the obligation of educators in intercollegiate athletics at any level is to the student athlete (365-366). Ultimately, Ridpath conceded that the student must complete the courses and do the work (366). If the student has been led astray or given misinformation or relied upon inappropriate information from people they trusted, the institution has an affirmative obligation to assist those student athletes towards a path of advising what is needed for eligibility to meet the goal of getting into a Division I institution (366). There is a trusted relationship between the coach and the athlete (366).

Ridpath testified that very few student athletes from Division II schools go directly to the NBA (374). The main pathway to the NBA is playing NCAA Division I men's basketball (374). He testified that Weigand and Massaroni had 100% responsibility to exercise administrative authority and institutional control which they did not do (375-376).

With respect to the NCAA four-five rule, Ridpath testified that he would have applied for a waiver for Thomas for an extension of his clock for at least one more year even two (377). Ridpath acknowledged that the 76 credits Thomas needed would have been a hurdle but there were mitigating circumstances where a waiver could have worked (377). Ridpath opined that there was a better than average chance that Thomas would have received at least a one-year extension (384). Ridpath further testified that a marketing videotape of a Division I player impacts the player's chances of becoming an NBA player (393).

Ridpath acknowledged that he never met with Thomas or Mushatt (407). Ridpath also admitted on cross examination that Thomas was not academically eligible to receive the scholarship from Saint John's (408). Ridpath further admitted that in the spring 2014 semester, Thomas didn't qualify under the NCAA rules for scholarship to play Division I ball (411). Ridpath admitted that an associate degree is the first step for eligibility (413). He also admitted that students have a responsibility to go to class and get a passing grade and that Thomas did not fulfill that responsibility (417-418, 440).

When referred to the NCAA Division I form, Ridpath acknowledged that Thomas signed the form on September 4, 2014, when he was no longer a student at WCC. The form included the statement, "You are responsible for knowing and understanding the application of all NCAA Division I By-Laws related to your eligibility" (419). At that time, Ridpath admitted, Thomas was not in fact eligible (419). Ridpath testified that in order to play "[y]ou have to be certified through the proper process" (421). He further testified, "[n]o one has ever been certified eligible based on what they think" (421). Ridpath admitted that Thomas did not get a diploma from WCC (422).

Plaintiff, Keith Thomas, was the final trial witness. He testified as to his academic and [*5]athletic background (459). At the time of trial, Thomas was living in California and testified that he was going to take an EMT exam and wanted to be a fireman (463, 487-488).

Thomas testified that he met Mushatt in 2011 prior to the basketball season (467). The season began in November and ended in March or April depending on the playoffs and the post season (467). Thomas told Mushatt he was prepared to do what he had to do to play basketball. Thomas made the WCC team and recalled playing one game in the 2012-2013 season (474-475). However, he mostly played during the 2013-2014 season (470).

Thomas testified that he was familiar with the 4/5 clock and was aware that the one game he played in 2012 started his clock (470-472). Mushatt assisted Thomas in filing for a waiver with the NCAA for that year. Thomas was told he got the waiver (473). He wasn't specifically aware if St. John's knew about his waiver but figured "it would have been common sense" that they knew (473). He played well during the 2013-2014 season breaking two records and led the entire country in rebounds (475-476).

Thomas testified that he looked up to Mushatt who became a friend and someone he could go to for advice about everything (482). Thomas testified, "I thought he was dedicated to me so I dedicated myself to him. I trusted him. I believed in him" (482). In the fall of 2012, Thomas ended up taking time off from WCC because his grandfather was sick. He withdrew from his classes that semester and receiving "W's" (483). Thomas testified that he provided the school with a death certificate for his grandfather and that time period was not supposed to count against him (483). After returning to WCC, Thomas was recommitted. He took summer classes and was focused (485).

Thomas testified that he left all the recruiting for Division I schools to Mushatt (512). Mushatt planned trips for Thomas to the University of South Florida, Loyola University Chicago, and the University of Miami (513-514). Eventually Thomas received a call from St. John's about joining their team (517). Coach Fields assisted him in filling out the application for St. John's (519-520).

Before the 2013-2014 season, Thomas asked Mushatt how many credits he needed for an associate degree and was told 60 (496). Thomas testified that he had 55 credits (496). When he filled out papers for St. John's admission, he thought he had 60 hours and thought he earned a degree (497). He formed this belief based upon conversations he had with Mushatt (498). His understanding from those conversations with Mushatt was that he was "good to go" (498).

Thomas never played in an official game for St. John's (520). He only practiced with the team and was on the starting roster for scrimmages (520). In October 2014, he was called to the compliance office at St. John's where he answered questions from Trani (525). Thomas told Trani that he was not aware that Coach Fields was fired, he never saw his grades or transcript from WCC, to his knowledge he earned an associate degree from WCC, and he never received a copy of his diploma from WCC and did not attend graduation (525-526).

The first time Thomas saw the forged transcript was in the compliance office at St. John's (530). In fact, the first time he saw his transcript in his entire college career was in the compliance office at St. John's University (497). The official transcript showed 46 credit hours from WCC and 9 credit hours from summer classes at St. John's for a total of 55 credits (509-510). Thomas testified that he never printed his own transcript. The official transcript was sent to St. John's sealed (475).

After this meeting, Thomas was notified by St. John's that he was no longer allowed on the campus (523). On November 18, 2014, the Vice President of Enrollment Management for St. [*6]John's University notified Thomas in writing that it had come to their attention that his application for admission contained material misrepresentations involving his prior enrollment at another university. Thus, effective immediately, St. John's cancelled his admission.

Devastated and unsure of what to do, he reached out to Mushatt (531). Thomas admitted that he did not reach out to any guidance counselors at WCC (531). Thomas stated that he was under the impression that even if he took the last five or six credits, no Division I school would take him because of the baggage (532). At some point thereafter, Thomas learned that Mushatt forged 18 student transcripts (533). Nevertheless, Thomas testified that he continued to have regular contact with Mushatt (534). After he was released from St. John's, Mushatt would practice with him and recommended trainers (534). Thomas went on to play basketball overseas and when he came back to New York he continued to practice with Mushatt even after Mushatt pled guilty to forging his transcript (534). Thomas knew he could go back to WCC to take classes, but his goal was to get back into St. John's (609-610).

On cross examination, Thomas went through his official WCC transcript:

In the spring of 2011, he received a "W", a "JY"[FN4] , and two "F's" (551; see official transcript admitted into evidence). In the summer of 2011, he took one class and received an "A" (553). This was after meeting Mushatt when Thomas was told that if he did well in school, he would have a place on the basketball team (553).In the fall of 2011, he played two games and then broke his hand in an altercation that occurred outside of school (556). He did well during the fall of 2011 to maintain his eligibility to play basketball (559). H received two "B's"; one "B+"; and one "D".In the spring 2012 Thomas received one "A"; a "C+"; two "F's"; and one "W".In the fall of 2012, he received two "W's"; one "F", and one "JY", meaning that he did not go to classes in the fall of 2012 (536). He admitted that he would not have been eligible to play basketball in the fall of 2012 (537).In the spring 2013, the second half of the basketball season, he was not registered for school (536).In the summer of 2013, he took five courses and passed all of them which made him eligible to play the following season (569).In the fall 2013 he registered for five classes and received two "A's"; "two "B's"; and a "D" (569).In the spring of 2014, he registered for five classes. He received one "A"; one "B"; two "F's"; and one "W".

Thomas testified that he understood that to be eligible to continue to play ball, he had to be enrolled in 12 credit classes and pass his classes (569). Thomas was also aware that he had to obtain an associate degree to play in the NCAA (576). Thomas testified, "I didn't think they would allow me into a top university without an associate degree" (598).

Thomas acknowledged that the fake transcript showed that he attended fewer semesters at WCC than he actually attended (614-615). He acknowledged that the forged transcript omitted his entire spring and summer 2011 semesters (615-616). He also acknowledged that he needed [*7]an associate degree to gain a scholarship to St. John's and that he did not earn an associate degree (620).

The plaintiff then rested (tr. 1/31/20: 460).

Defendants' Case

John Wolohan testified as defendants' expert. Wolohan teaches sports law at Syracuse University and Syracuse Law School (495). The sports law program looks at constitutional issues and the interactions with the individual players, the NCAA, and the NBA (495).

Wolohan testified that WCC's investigation of the Ron Mexico email was reasonable and appropriate (502). The investigation into the email revealed that the official transcripts are sent directly to the registrar's office at another institution, so the official transcripts go from institution to institution (506). The investigation also revealed that several signatures were required for a grade change (506).

Wolohan testified that a junior college player can transfer to a Division I school if the following three conditions are met: (1) an associate degree is required. If the student does not have an associate degree, the student cannot be accepted; (2) GPA is important. If the student has a 2.5 GPA the student can get a full scholarship and is permitted to play in games. If the student has less than a 2.5 GPA the student is what is known as a partial qualifier and can still get a scholarship and practice with the team but cannot play in games; and (3) progress must be made toward a degree. In this case, Thomas would have to have met 60% of his graduation requirements for the degree (514).

A student that does not receive a scholarship is not eligible to play pursuant to NCAA rules (515). Students also need two English courses, one math course, and one science course to transfer (515).

Wolohan testified that for NCAA eligibility, a student has five years to participate, and the clock starts running once the student enters an educational institution (516). In that five years, the student has four years of eligibility to play (516). The clock continues to run even if the player is no longer a student in the school (518).

Thomas' fake transcript indicated that Thomas started WCC in the fall of 2011 and therefore, based on the five-year clock, his NCAA eligibility would run through the spring of 2016 (516). According to the official transcript, however, Thomas' eligibility ended in December of 2015 (516). This is significant. Wolohan explained that because December is right in the middle of the basketball season, typically, a Division I school would not keep a player for half of a season (516-517).

Wolohan testified that a student can petition the NCAA for a waiver (517). However, in his opinion, the NCAA would not have been inclined to grant a waiver to Thomas because he was over 30 credits short and did not have an associate degree or the essential core classes. All the transfer requirements would have had to be waived to let him into a Division I school (517).

Wolohan further testified that based upon his transcript, Thomas did not meet the basic requirements that the NCAA requires for a scholarship (533). Thomas did not have an associate degree and did not have the basic core courses (534). The official transcript reveals that Thomas took basic algebra, the math requirement for NCAA rules, three times and failed each time (534). Thomas also did not have enough transferable credits to be on track for graduation at a four-year institution (535). The NCAA rules require that after the first year, the student must have completed 20% toward his degree; after the second year the student must have completed 40% toward his degree; and after the third year the student must have completed 60% toward his [*8]degree (536). The NCAA wants the student athlete to be working toward a degree which is why these clocks are set (548).

When Thomas was dismissed from St. John's he had two more semesters of eligibility left and needed about 30 credits (536-537). Going into the fifth year of eligibility, a student would need 80% of credits toward a specific degree (537). Wolohan testified that even if Thomas had red-shirted, meaning that he was out of school a year due to an injury, the clock kept running (538). The five years is nonnegotiable but when the student plays the four years, that can be broken up (539). Wolohan agreed with Ridpath that Thomas did not fulfill his student responsibility to attend and pass classes (539-540).

On cross examination Wolohan was asked: So here is Keith Thomas. One, he loses his — he aids his grandfather in dialysis for a year. Two, he breaks — I think he breaks his wrist, he's out for a year. Three, he's involved in a fraudulent transfer situation where he has nothing to do with the fraud. Would those be elements, in your opinion, which could be submitted in connection with a waiver?***Are they elements the NCAA would consider? Yes. But the problem in this particular case is that he's got bigger issues. His educational requirements and his — what he's bringing into Saint John's are so insufficient and so deficient that he just can't make it up (599).

Wolohan testified that he believed Thomas knew what was required of him to play in a Division I school (608). He referred to the fact that Thomas repeated the same math class knowing that math was an essential core course that he needed to be eligible to play (608). Wolohan also testified that the NCAA considers the truthfulness and veracity of a student athlete when considering a waiver application (609).

Wolohan testified that the NBA does not have any requirement that a player have an associate degree (525). The only requirement to play in the NBA is that the athlete is one year removed from high school (525). There is no requirement that the athlete be enrolled in a Division I school to play in the NBA (526). He testified there was nothing preventing Thomas from declaring for the NBA draft in the fall of 2014 (541).

Donald Weigand was also called as a defense witness. He testified that he retired as Vice President, Dean of Student Affairs from WCC in 2015 (610). Larry Massaroni, the athletic director, reported directly to Weigand (612). Weigand testified that Massaroni had the discretion to fire a coach (734).

Weigand testified that in October 2013 he received the Ron Mexico email from the president of WCC (613). The email came from the compliance officer for the NJCAA (613, 727). Weigand conducted an investigation by reviewing each of the allegations and developing a report (615, 745). Weigand was the only person who had the responsibility of investigating the Ron Mexico email (746). He met with Massaroni, the assistant athletic director, and Mushatt (616). He did not reach out to the players or talk to any of the other basketball coaches (759).

With reference to the Ron Mexico email, Weigand concluded that there was nothing in the eligibility reports that suggested that JW was on the basketball team (617). Weigand also had conversations with the registrar and went to the security office (618, 76-761). Weigand decided who to interview, what documents to review, and when to conclude the investigation into the Ron Mexico email (724).

When the transcript scandal eventually erupted in October 2014, Weigand walked over to [*9]the basketball office and found a stack of blank transcript paper (624, 626, 758). The name of the registrar on these blank transcript forms was Susan Stanton, the former registrar who had retired a few years earlier (627, 780). At the time, John Capocci was the current registrar (627). Weigand had the basketball office secured and the locks changed so that no one could remove anything (624-626, 758). The Inspector General's office arrived later and took over the investigation. Weigand then canceled the 2014-2015 basketball season (630). No games went forward in order to preserve the eligibility of the players (630).

After the 2014 investigation, Weigand concluded that the official records of WCC students were never changed in the registrar's office (628). He concluded that the fake transcripts were fabricated by cut and paste in the basketball office (628). Weigand testified that the registrar's office is secured and as dean, he didn't even have access to change a grade in the registrar's office (628).

Weigand testified that a graduation ceremony is always held in the spring at the Westchester County Center (722). Thomas was not awarded a degree or a diploma in the spring of 2014 due to insufficient credits and lacked the distribution of courses required (722). After the scandal broke out, Weigand spoke with Trani and informed Trani that Thomas was welcome to come back to WCC to get his associate degree (781).

Weigand testified that a player's eligibility is determined by the athletic director in concert with the registrar, not by a coach (749). A coach would be fired for allowing a player to play who was not certified (751). Weigand testified that he would hold the head coach responsible for allowing JW to play if he was ineligible (751). As a result of the inspector general's investigation in 2014, Weigand learned that JW did in fact play in WCC basketball games (766).

Laura Milhaven testified that she is an academic counselor at WCC (785). Her responsibilities include talking to students about their educational plans, the courses they take, career transfer, and financial aid (785). She also had the responsibility for the development of a student caseload. Each student had to take a placement test and, based on those scores, would be required to take either remedial or developmental classes (788). Developmental classes are non-credit classes for students who need an additional gap between high school and college learning (788). All students in the developmental program had to see a counselor in order to register (788).

Milhaven was familiar with Thomas (789). Thomas, who was enrolled in the developmental program, had to meet with a counselor prior to registering for classes (790-791). Milhaven met with Thomas in the Spring of 2014 to go over his academic record and talk about what classes he still needed for graduation (791-792). She met with Thomas in January and March of 2014 (792). As part of this discussion, Milhaven reviewed his academic record and testified that Thomas was not on track to graduate with an associate degree at the conclusion of the spring 2014 semester (792). He was 14 credits short of the number of credits needed to graduate. Also, his math was a developmental class for which he did not earn any credits so technically he was 18 credits short (792).

In the spring of 2014, Thomas was registered for 5 classes and passed 2 of those classes (793-794). He did not pass English, which is a mandatory graduation requirement (794). He also did not pass remedial math which is a mandatory graduation requirement and a prerequisite to college level courses (794). Thomas also withdrew from his earth science lab which is a mandatory graduation requirement (794).

Milhaven spoke with Thomas in the spring of 2014 about the amount of credits that he still needed to graduate and told him that there was no way he could complete all of the credits, including the two college level math classes, by the summer. She explained to him that she thought he would still be in WCC the following fall (794). She gave him some options for math classes at Empire State College (794).

Thomas informed Milhaven that he was going to Saint John's to play basketball (794). This was very concerning because he was not going to graduate. She testified, "I told him again, you know, 'You're not going to graduate. And I believe you need for eligibility, I believe you need to be a graduate based on how much time you had spent on the court at WCC'" (795). Milhaven also brought in another counselor, Tom Nugent, to the discussion (795). She knew Nugent was more familiar with the NCAA and the NJCAA rules (795). Nugent spoke to Thomas as well in the session. Milhaven kept repeating to Thomas that he was not going to graduate (796). Milhaven testified that Thomas' final response was "'I got this'. He kind of sat back on his chair and said, 'I got this.' I said, 'you're not graduating.' He said, 'I got this.'" (796). She collected all the papers for him, which she highlighted, and gave him the phone number for Empire State College and told Thomas to call them because if he were to have any chance of graduating, he had to get those math classes completed (797).

Milhaven testified that before being an academic counselor she ran the admissions office and was the associate registrar (786). She testified that the process for sending out an official transcript started with a student making the request and a $10 charge being paid to the bursar (787). The student would bring the paid receipt and fill out a request for an official transcript (787).

Thomas Nugent is an academic advisor at WCC (tr. p.m. 1/31/20: 472). In spring 2014, Nugent was called into a session with Milhaven and Thomas (473). Based upon his conversation with Milhaven, Nugent understood that Thomas was not on track to graduate in the spring (473). When Thomas entered the session, Milhaven made it clear that he was not going to get a degree (475). Nugent, who had knowledge of the athletic rules, informed Thomas that he had to have an associate degree to play Division I and Thomas responded, "I got it. I got this" (474).

The County and FSA then rested (815).

Jury Verdict

The jury returned a verdict finding that the County and FSA were negligent in the supervision or retaining of Mushatt as head coach of the WCC basketball team in that they knew or should have known of Mushatt's propensity to forge transcripts based upon the investigation of the "Ron Mexico" email. The jury further found that the negligence of the County and FSA was a substantial factor in causing plaintiff's damages. The jury found that plaintiff was not negligent.

The jury apportioned 80% (eighty-percent) of fault to WCC and 20% (twenty-percent) to FSA.

Post-Trial Motions

FSA moves, pursuant to CPLR 4404, for a judgment notwithstanding the verdict, or, in the alternative, for a new trial. FSA argues that plaintiff failed to prove that it was negligent in the supervision or retention of Mushatt. FSA further argues that the plaintiff failed to prove that he suffered any injury as he was not academically eligible for an athletic scholarship. FSA argues that even if Mushatt had been terminated as a result of the Ron Mexico email, plaintiff would not have qualified for an athletic scholarship. FSA argues that plaintiff failed to [*10]demonstrate that his injury was proximately caused by the negligent supervision or retention of Mushatt. Finally, FSA argues that the Court erred by denying its motion for a jury instruction pursuant to Article 16 for apportionment and for inclusion of Mushatt on the verdict sheet.

The County also moves to set aside the jury verdict and for judgment as a matter of law or, in the alternative, to set aside the verdict as against the weight of the evidence and order a new trial. The County argues that the verdict should be set aside and judgment granted in its favor as there is no evidence that WCC's investigation was negligent or that any action or inaction by WCC was the proximate cause of plaintiff's injury. The County argues that there is no evidence it held Mushatt out to be an academic advisor and any reliance by plaintiff on Mushatt as an academic advisor was unreasonable. In the alternative, the County seeks a new trial as the verdict was contrary to the weight of the evidence.

In opposition, plaintiff argues that WCC's investigation was negligent. Plaintiff points to the testimony of his expert, B. David Ridpath, that the Ron Mexico email was sufficiently specific that Mushatt should not have been involved in the investigation conducted by WCC. Plaintiff argues that there was direct evidence and evidence from which the jury could infer that WCC's investigation was insufficient and constituted negligent supervision and retention of Mushatt.

Plaintiff further argues that the actions of WCC and FSA, through their employees, were the proximate cause of plaintiff's injury. Plaintiff argues that there was ample evidence to support the jury's finding of proximate cause. Plaintiff points to Ridpath's testimony that there is an element of trust between the coaches and the athletes. Plaintiff argues that he had contact with the coach everyday. Plaintiff thought he had completed enough courses and earned a degree at WCC and thought that the information he provided on the St. John's admission papers was true.

Plaintiff argues that the number of academic credit hours he actually earned, his failure to earn an associate degree, and being placed in a position where he was not qualified to be admitted into any Division I college or university, was all due to defendants' negligence. Plaintiff argues that he was the number one basketball player in the United States in rebounds and had solicitations from numerous Division I schools to be interviewed for an athletic scholarship. Plaintiff argues, "Yes, each school extended that invitation on the basis of their receipt of Mushatt's fraudulent transcript. Whether or not the plaintiff was eligible is not the issue; what matters is that he lost the opportunity to address eligibility and take appropriate steps to be eligible". Plaintiff argues that it was not unreasonable for him to listen to and be guided by his coach.

Plaintiff also argues that the Court properly declined to charge Article 16 apportionment as this is not a personal injury case and his damages, for loss of career opportunity, are economic damages.

Discussion

CPLR 4404(a) provides that after a jury trial, "the court may set aside a verdict or any judgment entered thereon and direct that judgment be entered in favor of a party entitled to judgment as a matter of law or it may order a new trial of a cause of action or separable issue where the verdict is contrary to the weight of the evidence ".

"A motion for judgment as a matter of law pursuant to CPLR 4404 may be granted only when the trial court determines that, upon the evidence presented, there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion reached by the jury upon the evidence presented at trial, and no rational process by [*11]which the jury could find in favor of the nonmoving party" (Messina v Staten Is. Univ. Hosp., 121 AD3d 867, 867 [2d Dept 2014] [internal citations omitted]; see Szczerbiak v Pilat, 90 NY2d 553, 556 [1997]). "In considering such a motion, the trial court must afford the party opposing the motion every inference which may properly be drawn from the facts presented, and the facts must be considered in a light most favorable to the nonmovant" (Berger v Shen, ___AD3d___, 2020 NY Slip Op 03638, 2 [2d Dept July 1, 2020] [internal citations omitted]).

I. There is No Valid Line of Reasoning to Support the Jury's Conclusion that FSA was Negligent

The Court finds that there is no valid line of reasoning and permissible inferences which could possibly lead rational persons to the conclusion that FSA was negligent. The evidence presented at trial, which was uncontested, is that FSA did not have a duty to investigate the Ron Mexico email.

The men's basketball athletic program was controlled by WCC under the department of student affairs (174). Dean Weigand testified that if Mushatt did not perform his duties as head coach in a proper manner, it would be WCC that would direct his release (170). Dean Weigand received the Ron Mexico email and solely conducted the investigation into the allegations. Weigand was the only person responsible for investigating the Ron Mexico email.

There is no evidence of an independent duty of FSA to also investigate the email. Further, once the scandal erupted, it was Weigand who had the authority and solely decided to cancel the men's basketball season and to discharge the coaching staff. This decision was made without any consultation with FSA (170). While there is testimony that Massaroni had the discretion to fire a coach, the evidence is clear that WCC oversaw the men's college basketball team and that it was Weigand who conducted the investigation and who made the initial decision to fire Fields and the decisions to eventually fire Mushatt and cancel the basketball season without any input from FSA.

II. The Jury's Finding that the County was Negligent is Supported by the Evidence

Based upon the testimony and viewed in the light most favorable to the plaintiff, there is a valid line of reasoning and permissible inferences from which the jury could rationally conclude that the County was negligent in its investigation of the Ron Mexico email. Upon receipt of the email in 2013, Weigand involved Mushatt in the investigation even though Mushatt was the subject of the email. Ridpath testified that there was very specific information that should have been looked at and the investigative process should not have involved Mushatt (348). Ridpath also testified that due diligence would have included speaking to the other institutions and looking at the transcripts, which Weigand admitted he did not do. There is also the overriding obligation of the athletic department to ensure that student athletes are academically eligible to play (360). Moreover, Weigand never made an unofficial or unannounced visit to the basketball office after receipt of the Ron Mexico email which he could have easily done and, in fact, did after the scandal was uncovered in 2014.

The Ron Mexico email alleged that the WCC transcripts received by other institutions were "official" and that Mushatt had access to the official school computer data base and was able to make permanent changes in the system. Although Weigand's investigation revealed that Mushatt did not actually have access to the official school computer data base, the allegations in the email were certainly specific enough to warrant a more thorough investigation. Weigand could have contacted any of the other institutions where prior basketball players transferred. Weigand also could have reviewed the official WCC transcripts of the Division I transfer [*12]students which may have led to questions regarding their eligibility.

Thus, the Court finds that the jury's conclusion that the County was negligent in the supervision or retaining of Mushatt as head coach of the WCC basketball team in that they knew or should have known of Mushatt's propensity to forge transcripts based upon the investigation of the "Ron Mexico" email was supported by a valid line of reasoning and permissible inferences.

III. There is No Valid Line of Reasoning to Support the Jury's Conclusion that the Defendants' Negligence was a Substantial Factor in Causing Plaintiff's Injury

The jury found that FSA and the County were negligent in the supervision or retaining of Mushatt as head coach in that they knew or should have known of Mushatt's propensity to forge transcripts based upon the investigation of the "Ron Mexico" email. The jury further found that the negligence of the County and FSA was a substantial factor in causing plaintiff's damages. The jury found that plaintiff was not negligent.

While the County was negligent in its investigation of the Ron Mexico email, there is no valid line of reasoning or permissible inferences which could possibly lead rational persons to the conclusion that any negligence of the part of the County or FSA (even if FSA was negligent) was a substantial factor in causing Thomas' injury.

Thomas' basketball talent was not an issue at trial and has never been questioned. Nevertheless, talent is not all that is required to play Division I ball. The NCAA has rigid and specific admission standards for student athletes emphasizing academic criteria. These rules were spelled out in the testimony of Trani, Ridpath, and Wolohan. Due to the NCAA principles of amateurism[FN5] , Thomas could not be compensated for playing basketball at St. John's. What an eligible Division I player can receive is a scholarship for tuition, room and board, books, and expenses. Thomas contends that due to the defendants' negligence in retaining Mushatt as head coach after the investigation of the Ron Mexico email, he lost a scholarship to St. John's University and lost the opportunity for an NBA career. This is not supported by the credible evidence.

In order to transfer from a junior college to a Division I school as a nonqualifier, Thomas was required to earn an associate degree at WCC and have six transferable credits in English, three transferable credits in math, and three transferable credits in science. The official acceptance letter from St. John's formally advised Thomas that he was awarded an athletic grant made of full tuition, fees, books, and room and board for the 2014-2015 academic year and that the scholarship offer was contingent upon Thomas meeting the eligibility requirements (192).

A. Thomas Did Not Earn an Associate Degree

In this case, the evidence clearly and undoubtedly establishes that Thomas, despite his basketball talent, was never entitled to an NCAA scholarship. Thomas was not academically eligible to play Division I basketball and did not meet the eligibility requirement for a NCAA Division I scholarship (240-241).

Ridpath, plaintiff's own expert, testified that an associate degree is the first step for eligibility (413). Ridpath admitted that Thomas was not academically eligible to receive the scholarship from Saint John's and that in the spring of 2014 Thomas did not qualify under the [*13]NCAA scholarship rules to play Division I ball (411).

Trani testified that if a student is not eligible to play Division I ball that student would not be eligible for a scholarship (252). Trani testified that Thomas' admission to St. John's was rescinded because once the official transcript was reviewed, it established that Thomas did not meet the qualifications to be admitted or receive an athletic scholarship (232).

Wolohan also testified that based upon his official transcript, Thomas did not meet the basic requirements for a scholarship because he did not have an associate degree or the basic core course requirements (534).

The evidence further supports a finding that Thomas was aware that an associate degree was required in order to play at St. John's and was aware that he was not entitled to a scholarship (576). Thomas specifically testified:

Q. Do you think you did all you needed to do to graduate from Westchester?

*** No, I do not think I did everything I needed to do to graduate from Westchester Community College.Q. And the scholarship you lost — sitting here today, do you understand that the scholarship you lost from Saint John's was one that you were never entitled to receive. True?A. Based off of not having an associate[] degree.Q. Right.A. I needed an associate[] degree to gain a scholarship to Saint John's; I didn't obtain that. So if I didn't have an associate[] degree at the time, then I could see me not — I could see my scholarship being taken away.Q. So the scholarship you lost was one you were never entitled to receive. True?A. As I sit here today knowing that I didn't have an associate[] degree, and no, I don't have an associate[] degree — I couldn't have obtained a scholarship.Q. Right. So you were never entitled to get a scholarship from Saint John's; right?***I wasn't entitled to having a scholarship if I didn't have an associate[] degree (619-620).

Thomas only received the initial offering of a scholarship from St. John's because of the forged transcript. This was confirmed by the revocation of that scholarship when St. John's obtained a copy of Thomas' official transcript.

Therefore, based upon the evidence before the jury, there was no valid line of reasoning to infer that any negligence on the part of the defendants was a substantial factor in causing injury to Thomas. Thomas was never entitled to a scholarship to a Division I school as he did not meet the basic academic requirements of earning an associate degree and did not have the required transferrable credits in math, English, and science.

B. The Retention of Mushatt as Head Coach after the Ron Mexico Email Was Not A Substantial Factor in Causing Plaintiff's Injury

Thomas began enrollment in WCC in the spring of 2011. The Ron Mexico email was received by Weigand in October 2013. Between the spring 2011 semester and the summer 2013 semester, Thomas registered for approximately twenty-three classes. Out of those twenty-three classes, Thomas withdrew from six classes and failed five.

Milhaven, the academic counselor, met with Thomas in January 2014 and March 2014, not long after the Ron Mexico email was received by WCC. During those sessions, Milhaven [*14]repeatedly informed Thomas that he was not on track to graduate and receive an associate degree. She advised him that he did not have the mandatory graduation required English, math, or earth science classes and was 18 credits short of the required number of credits to graduate from WCC. To further emphasize the disparity between Thomas' reality and his goal of attending and playing basketball at St. John's, Milhaven had Nugent, another academic counselor, join her session with Thomas. Nugent, who was more familiar with the NCAA Division I rules, also explained to Thomas that an associate degree was required to maintain eligibility to play at St. John's.

As admitted by plaintiff's own expert, students have a responsibility to go to class and get a passing grade and Thomas did not fulfill that responsibility (417-418, 440). The Court notes that Thomas was a very impressive witness. Based upon his testimony, Thomas was aware that he needed an associate degree in order to transfer to St. John's and was aware of his failure to be on track to meet that requirement prior to the Ron Mexico email and despite Mushatt's continuance as head basketball coach after the investigation of the Ron Mexico email.

Even if Mushatt was fired from WCC in the aftermath of the Ron Mexico email in the fall of 2013 and even if Thomas received an associate degree from WCC, Thomas would still not have been eligible to play Division I basketball at St. John's. As a result, there is no nexus between Thomas' injury and any negligence on the part of the defendants in retaining Mushatt after the email surfaced. In addition to his lack of academic eligibility, Thomas was also facing the impending expiration of his 5-year clock which makes any alleged injury resulting from the negligence of the defendants even more remote.

As explained during trial, pursuant to NCAA rules, a student athlete has five years to play four years of competition. The 5 year clock starts upon enrollment as a full time student and continues to run even if the student is not attending school. Thomas started attending WCC in the spring of 2011, not the fall of 2011 as he indicated in his St. John's application or reflected on the forged transcript (254-255). This significantly affected the remainder of Thomas' eligibility on his 5 year clock upon transfer to a four-year Division I school in the fall of 2014.

The NCAA also requires that student athletes make annual progress toward a degree. Thus, in addition to the grade point average, a certain amount of credits toward a degree is required. The number of credits increases as the student completes additional semesters. Based upon Thomas' actual time at WCC, he would have been required to have sixty percent of his degree completed, i.e. about 76 credits, to transfer to St. John's (259-260). Thomas only had 46 credits completed in the spring of 2014 and had not completed the required math, science, and English courses. Therefore, considering that it would take him two semesters to obtain the additional 30 credits required, Thomas would only have had one semester of eligibility left to play Division I basketball (267).

In circumstances where a student athlete does not meet the academic requirements, a petition to the NCAA for a waiver can be made to retain eligibility. Ridpath testified that he would have applied for a waiver for Thomas for an extension of his clock for at least one more year maybe even two years (377). However, St. John's University revoked Thomas' scholarship and Thomas chose not to return to classes at WCC. Therefore, WCC never had an opportunity to petition for a waiver for Thomas. In any event, Ridpath acknowledged that the 76 credits Thomas needed would have been a hurdle (377). Any conclusion that Thomas would have received a waiver is based entirely on speculation and not any permissible inferences from the testimony.

To establish a connection between the defendants' negligence and Thomas' injury, the jury could only have relied on sympathy and speculation. There was testimony throughout the trial of the close relationship between a coach and an athlete (366). Specifically, there was evidence of a trusting relationship between Thomas and Mushatt. Thomas testified that he looked up to Mushatt, spoke to Mushatt about everything, and left all the recruiting for Division I schools up to Mushatt (512). There was also evidence at trial that Mushatt forged transcripts for several players at WCC, including Thomas, and sent those transcripts to other institutions. What was not in evidence, however, was any testimony that a coach can change the NCAA eligibility requirements, that a coach can change the graduation requirements for an associate degree, that a coach can change a student's class attendance record, that a coach can register or withdraw a student from classes, or that a coach can go to the registrar's office and request that a student's official transcript be sent to another institution.

Further, the NBA does not have any requirement that a player have an associate degree (525). The evidence before the jury was that the NBA requires a high school diploma plus one year post high school in order to declare yourself eligible for the draft (225,525).[FN6] There is no requirement that an athlete be enrolled in a Division I school to declare for the NBA draft (526). Therefore, there was nothing preventing Thomas from declaring for the NBA draft.

The Ron Mexico email was received by WCC on or about October 23, 2013. Excluding the remainder of the fall 2013 semester, Thomas only spent one semester at WCC after the receipt of the email. The plaintiff contends, and the jury improperly inferred, that in that one semester the loss of a Division I scholarship and a potential NBA career had befallen Thomas. This finding by the jury is belied by the evidence and not based upon any valid line of reasoning or rational process.

Conclusion

College basketball is no stranger to scandal and Mushatt was a small spoke in a much larger wheel of the broader recruitment scandals and challenges facing NCAA Division I college ball. Some might argue that a person could be convicted of a federal felony for breaking an NCAA rule.[FN7] However, unlike pay-to-play scandals, this case is much more direct and less flashy. The Court is mindful of concerns about the exploitation of student athletes, however, based on the evidence, Thomas has made peace with Mushatt given the fact that their relationship continued after Mushatt's conviction. Thomas also made the choice not to go back to WCC to complete his associate degree and explore other opportunities even though that option was offered to him.

Based upon the foregoing, the evidence clearly establishes that Thomas was never entitled to an NCAA scholarship and the jury could only have relied on speculation and altered the existing NCAA or NBA rules to establish a connection between any negligence on the part of the defendants and Thomas' perceived injury of the loss of a Division I scholarship or the loss of [*15]an NBA career.

Accordingly, it is

ORDERED that the motion of the defendant Faculty Student Association of Westchester Community College, pursuant to CPLR 4404(a), to set aside so much of the jury verdict on the issue of liability as was in favor of the plaintiff and against it and for judgment as a matter of law is GRANTED (motion sequence # 7), and the complaint is DISMISSED insofar as asserted against FSA; and it is further

ORDERED that the motion of the defendant The County of Westchester, pursuant to CPLR 4404(a), to set aside so much of the jury verdict on the issue of liability as was in favor of the plaintiff and against it and for judgment as a matter of law is GRANTED (motion sequence #8), and the complaint is dismissed insofar as asserted against the County of Westchester.

Dated:July 31, 2020

White Plains, New York

________________________________________

HON. WILLIAM J. GIACOMO, J.S.C. Footnotes

Footnote 1: WCC is a department of the County of Westchester (132).

Footnote 2: The damages portion of the trial was scheduled to commence on March 16, 2020. However, pursuant to directives issued on March 13, 2020, and March 15, 2020, from Hon. Lawrence K. Marks, civil jury trials in New York State courts were postponed due to Covid-19 until further notice. Due to the ongoing suspension of jury trials, this Court has permitted post trial motions on the liability portion of the trial.

Footnote 3: A nonqualifier is a student who did not meet the academic eligibility requirements to be eligible as a Division I student athlete coming out of high school (183).

Footnote 4: Thomas did not specifically know what a "JY" meant. His testimony regarding the "JY" grades he received appears to indicate it is attendance related and another type of a withdrawal (484-484).

Footnote 5: An amateur is defined by the NCAA as "someone who does not have a written or verbal agreement with an agent, has not profited above his/her actual and necessary expenses or gained a competitive advantage in his/her sport" (see ncaa.egain.cloud/kb/EligibilityHelp/content/KB-2219/What-is-amateurism).

Footnote 6: The athlete must also be 19 years old (see Article X[1][b][i] of the NBA Collective Bargaining Agreement).

Footnote 7: See United States v. James Gatto, Merl Code, and Christian Dawkins, United States District Court, S.D. New York, 17-cr-686 (defendants were convicted of conspiracy to commit, and the commission of, wire fraud relating to a corruption scheme involving NCAA Division I college basketball).