Summary
In State of N Y Higher Educ. Servs. Corp. v Zamore (59 N.Y.2d 933, 935), the Court of Appeals observed that the 168,892 student loans in default totaling $343,135,032 were worthy of attention by the Legislature.
Summary of this case from State v. CohenOpinion
Argued June 3, 1983
Decided June 28, 1983
Appeal from the Appellate Division of the Supreme Court in the Third Judicial Department, VINCENT G. BRADLEY, J.
Robert Abrams, Attorney-General ( Martin A. Hotvet and Peter H. Schiff of counsel), for appellant.
Jeffrey E. Stockholm and Anne E. Bryant for respondent.
MEMORANDUM.
The order of the Appellate Division should be affirmed, with costs.
The loan contract having been made by defendant in New York while a resident of New York, jurisdiction over him was obtainable by service outside the State and plaintiff had knowledge of his address well before the Statute of Limitations ran. Although the Congress has seen fit to limit the right of a student borrower to a discharge in bankruptcy (US Code, tit 11, § 523, subd [a], par [8]; see State of New York v Wilkes, 41 N.Y.2d 655), neither the Congress nor our State Legislature has excluded student loan contracts from the ambit of the six-year period of limitations applicable to contracts (CPLR 213).
The contract provision requiring that defendant report annually to the lending institution to renew or extend his obligation does not help plaintiff because it too was breached more than six years ago. Furthermore, there being neither an act of defendant misleading plaintiff nor reliance by plaintiff, the provision of section 17-103 (subd 4, par b [recognizing estoppel to plead limitations]) of the General Obligations Law does not help plaintiff.
Finally, the suggestion that the total number (168,892) and amount ($343,135,032) of defaulted student loans is a reason for treating such loans differently than other contracts is more properly addressed to the Legislature.
I concur and note that it is within the power of the Legislature to revive the claim even though it is now barred by limitations ( Gallewski v Hentz Co., 301 N.Y. 164; Robinson v Robins Dry Dock Repair Co., 238 N.Y. 271, app dsmd 271 U.S. 649; Electrical Workers v Robbins Myers, 429 U.S. 229; Chase Securities Corp. v Donaldson, 325 U.S. 304).
Chief Judge COOKE and Judges JASEN, JONES, WACHTLER, MEYER and SIMONS concur; Judge MEYER also concurs in a concurring memorandum in which Judge JASEN also concurs.
Order affirmed, with costs, in a memorandum.