Opinion
# 2017-049-037 Claim No. 130031 Motion No. M-90942
12-18-2017
LISA VITALE v. CITY UNIVERSITY OF NEW YORK/ CITY COLLEGE OF STATEN ISLAND and NEW YORK STATE
Lisa Vitale, Pro Se Eric T. Schneiderman, New York State Attorney General By: Lawrence E. Kozar, Assistant Attorney General
Synopsis
Case information
| UID: | 2017-049-037 |
| Claimant(s): | LISA VITALE |
| Claimant short name: | VITALE |
| Footnote (claimant name) : | |
| Defendant(s): | CITY UNIVERSITY OF NEW YORK/ CITY COLLEGE OF STATEN ISLAND and NEW YORK STATE |
| Footnote (defendant name) : | |
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 130031 |
| Motion number(s): | M-90942 |
| Cross-motion number(s): | |
| Judge: | DAVID A. WEINSTEIN |
| Claimant's attorney: | Lisa Vitale, Pro Se |
| Defendant's attorney: | Eric T. Schneiderman, New York State Attorney General By: Lawrence E. Kozar, Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | December 18, 2017 |
| City: | Albany |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
In a claim filed on July 26, 2017, pro se claimant Lisa Vitale seeks monetary damages, alleging that defendant City University of New York ("CUNY") "created a false representation that by taking a phlebotomy course offered by the school's Continuing Professional Education . . . division [she] would be able to find a job as an entry level Phlebotomist" (Claim ¶ 1). Claimant received her phlebotomist certificate on January 25, 2017, and after five months of unsuccessfully seeking employment in the field, she realized that the course provided "no practical use," because one cannot find work as a phlebotomist without at least one year of practical experience. Vitale seeks $1,970 in damages, reflecting her investment in the course. The claim lists an accrual date of June 25, 2017.
By affirmation of an assistant attorney general, defendant now makes a pre-answer motion to dismiss the claim on the grounds that it was untimely served and filed, and that it was not served on CUNY. In support, defendant attaches a copy of the envelope in which the claim was mailed to the Office of the Attorney General ("OAG"). It bears a mark indicating that it was received on July 10, 2017. Defendant also points out that the claim was filed with the Court on July 26, 2017, six months and one day after Vitale received her certificate. It argues that it is the date on which the certificate was bestowed on claimant - January 25, 2017 - that is the proper date for accrual.
Defendant also makes the argument that any false representations made by CUNY were made prior to claimant's enrolling in the course.
Claimant opposes the motion, asserting that CUNY was served via certified mail return receipt requested on July 10, 2017, and that the claim accrued June 25, 2017 as that is when her damages became reasonably ascertainable. Moreover, Vitale argues that even if her claim had accrued January 25, the six-month period provided for in Court of Claims Act § 10 (4) should apply. Moreover, she asserts that the claim was filed on July 25, and therefore both service and filing were timely under section 10(4). She also asserts that she served CUNY, attaching a copy of a certified mail receipt dated July 10, 2017 addressed to College of Staten Island - CPE Div, 130 Merrill Ave., Staten Island, NY 10314, and a signed return receipt from the College.
Education Law § 6224 (4) vests the Court of Claims with jurisdiction to determine tort and breach of contract claims against CUNY senior colleges "in the same manner and to the extent provided by and subject to the provisions of the court of claims act, including time limitations, with respect to claims against the state." (see generally Jones v City Univ. of N.Y., 57 NY2d 984 [1982]).
In regard to service of process, the Attorney General avers that CUNY has never been served. As noted above, however, claimant presents a return receipt showing that the claim was sent by certified mail, return receipt requested to the College of Staten Island. That form of service is proper under the Court of Claims Act (see Court of Claims Act § 11 [a][i]). The question of where certified mail service on CUNY must be sent - and whether (as in this case) a mailing made to the general address of one of CUNY's member colleges suffices to meet the statutory requirement - is not addressed by the defendant, and I am unable to find any caselaw holding that service must be made to a particular addressee at CUNY in order to be valid. I therefore decline to dismiss the claim as improperly served, and turn to the timliness argument.
The failure to timely comply with the service and filing requirements of the Court of Claims Act gives rise to a jurisdictional defect, compelling dismissal (see Matter of Dreger v New York State Thruway Auth., 177 AD2d 762, 763 [3d Dept 1991], affd 81 NY2d 721 [1992]), provided that the defect is raised with particularity either by motion to dismiss prior to service of the responsive pleading or in the responsive pleading itself (Court of Claims Act § 11[c]). The applicable deadline for service turns on the nature of the cause of action being asserted. Affording the claim the liberal construction to which pro se submissions are entitled (see Pezhman v City of New York, 29 AD3d 164, 168 [1st Dept 2006], citing Rosen v Raum, 164 AD2d 809, 811 [1st Dept 1990]), I can see two possibilities: breach of contract or fraudulent misrepresentation.
In regard to the first, a student's admission into an academic institution gives rise to an implied contract (see Jones v Trustees of Union Coll., 92 AD3d 997, 998 [3d Dept 2012]; see also Reyes v New York Univ., 305 AD2d 392 [2d Dept 2003] ["Institutions of higher education do maintain contractual relationships with their students, and can, under appropriate facts, be liable for breaches regarding scholarships"]). Vitale's pleading could be understood as asserting that CUNY breached an implied agreement with her that her certificate would make her employment ready.
A breach of contract claim is governed by the six-month time limitations period of Court of Claims Act 10 (4).
CCA § 10 (4) provides that:
"[a] claim for breach of contract, express or implied, and any other claim not otherwise provided for by this section, over which jurisdiction has been conferred upon the court of claims, shall be filed and served upon the attorney general within six months after the accrual of such claim, unless the claimant shall within such time serve upon the attorney general a written notice of intention to file a claim therefor, in which event the claim shall be filed and served upon the attorney general within two years after such accrual."
It is "the general principle that a claim accrues for purposes of the Court of Claims Act when damages are reasonably ascertainable" (Augat v. State of New York, 244 AD2d 835, 836 [1997], lv denied 91 NY2d 814 [1998] ). This is so, "even if the damages might be indefinite to some extent" (Arbor Hill Partners v New York State Commr. of Hous. & Community Renewal, 267 AD2d 675, 676 [3d Dept 1999]). And while "the determination of the date on which damages are ascertainable may vary based on the facts and circumstances of each particular case, it generally has been recognized that damages are ascertainable once the work is substantially completed or a detailed invoice of the work performed is submitted" (C.S.A. Contr. Corp. v New York City School Constr. Auth., 5 NY3d 189, 192 [2005] [internal quotation and citation omitted]). Without deciding that a viable claim exists, the date claimant received her certificate was when her contractual relationship with CUNY ended, and thus the date when her damages were reasonable ascertainable for purposes of the Court of Claims Act.
Even were I to accept claimant's contention that this cause of action accrued when she later discovered the certificate had no value, for reasons set forth below her allegations in this regard are to argue to establish a different accrual date. --------
In this case, the July 26 filing is 182 days, or six months and one day from accrual, making it untimely under section 10 (4). In her papers, claimant states the claim was filed on July 25, which would satisfy that provision. A review the Court's file, however, indicates that the 26th is the correct filing date, and claimant does not come forward with any proof otherwise (see Cynski v State of New York, UID No. 2007-040-020 [Ct Cl, McCarthy, J., April 24, 2017] [notice of intention served six months and one day after accrual untimely under section 10(4)]).
A second alternative would be to read the claim as one for fraudulent misrepresentation. Such a claim must be brought within 90 days of the day it was discovered or could have been with reasonable diligence (see Lancaster Development, Inc. v State, 148 AD2d 892, 894 [3d Dept 1989]; Waters of Saratoga Springs v State of New York, 116 AD2d 875, 877-878 [3d Dept 1986], affd 68 NY2d 777 [1986]; see also Court of Claims Act § 10[3-b] [intentional tort subject to 90-day limitations period]). Specifically, the 90-day period begins to run when claimant "possessed knowledge of facts sufficient to suggest to a person of ordinary intelligence the probability that he has been defrauded [whereupon] a duty of inquiry arises and may thus start the running of the statute" (Waters of Saratoga Springs, 116 AD2d at 878).
Assuming that I could read such a cause of action into the complaint, I find that it would be untimely. While claimant makes a conclusory assertion that she learned about the fraud on June 25, 2017, she acknowledges that this was based on her "subjective conclusion that after 5 months of a job search my damages became readily ascertainable" (Cl. Opp. at 5). But the test for when fraud could have been discovered is "an objective one," i.e., the claimant has a "duty of inquiry" when an ordinary person would be placed on notice of the fraud (see Gutkin v Siegal, 85 AD3d 687, 688 [1st Dept 2011] [citation and internal quotation marks omitted]). Claimant cannot establish the proper date of accrual based solely on her subjective belief.
Here, the action was brought after more than 90 days had passed from the time Vitale completed her program, and a much longer time since any representation which induced her to participate in that program was made. For her to demonstrate that, nevertheless, the 90-day period for filing and service should not begin to run until June 25, she must make a more specific showing than the mere conclusory assertion that this was the case (see Squitieri v Trapanic, 107 AD3d 688 [2d Dept 2013] [dismissing fraud complaint as untimely; "plaintiff's contention that she was unable to discover fraud with reasonable diligence until certain date "was not supported by any allegations in the complaint, and plaintiff did not make such a showing in opposition to defendant's motion to dismiss the complaint"]).
In light of the foregoing, even applying a liberal construction to her causes of action, and the "discovery" standard which governs accrual in cases where fraud is alleged, I cannot find her action timely under the Court of Claims Act.
Accordingly, it is ORDERED that
Defendant's motion no. M-90942 be granted, and that claim no. 130031 be dismissed.
December 18, 2017
Albany, New York
DAVID A. WEINSTEIN
Judge of the Court of Claims Papers Considered: 1. Defendant's Notice of Motion, dated August 9, 2017, Affirmation in Support with Exhibit A annexed thereto; and 2. Claimant's Opposition, filed September 12, 2017.