Opinion
No. 128.
Argued June 1, 2010,
decided June 24, 2010.
APPEAL, by permission of the Court of Appeals, from an order of the Appellate Division of the Supreme Court in the First Judicial Department, entered April 14, 2009. The Appellate Division (1) reversed, on the law, an order of the Supreme Court, New York County (Michael D. Stallman, J.; op 20 Misc 3d 113[A], 2008 NY Slip Op 51690[U]), which had denied a motion by plaintiff for summary judgment and granted a cross motion by defendants for summary judgment dismissing the complaint, (2) denied defendants' cross motion, (3) granted plaintiffs motion, and (4) directed defendants to award plaintiff a degree and diploma and any authorizations he may need to take the dental boards.
Plaintiff, who began his studies with defendant dental school in 1993, was granted readmission to the school as a part-time student for the academic year 2002-2003. Plaintiff was initially overcharged tuition due to an admitted billing error by the school. Because of the error, the school mailed delinquency notices to plaintiff, and, in January 2003, mailed him a letter "de-enrolling" him. Plaintiff asserted that he never received any of those letters. In any event, notwithstanding the de-enrollment, plaintiff continued to attend courses and take final exams, which he passed. Eventually, after paying a corrected bill, plaintiff met with the school's academic advisor and learned of his de-enrollment for nonpayment of tuition. The school's associate dean subsequently rejected plaintiffs request for re-enrollment, and plaintiff instituted the instant action for breach of contract 11 months later.
Eidlisz v New York Univ., 61 AD3d 473, modified.
Office of General Counsel, New York University, New York City ( Nancy Kilson of counsel), for appellants.
Orans Elsen Lupert Brown LLP, New York City ( Robert L. Plotz and Leslie A. Lupert of counsel), for respondent.
Hogan Hartson, LLP, New York City ( R. Brian Black and Martin Michaelson of counsel), Ada Meloy, Washington, DC, and Jessie Brown for American Council on Education and others, amici curiae.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
MEMORANDUM.
The order of the Appellate Division should be modified, without costs, by denying plaintiffs motion for summary judgment and, as so modified, affirmed.
In this breach of contract action, plaintiff seeks an order compelling defendants to award him a degree. Defendants maintain that this action should have been brought as a CPLR article 78 proceeding and is therefore time-barred. Plaintiff moved for summary judgment granting him specific performance, and defendants cross-moved for summary judgment dismissing the complaint. Supreme Court denied plaintiffs motion, granted defendants' cross motion, and dismissed the complaint. The court concluded that the case should have been brought as an article 78 proceeding and was untimely. The Appellate Division reversed, denied defendants' cross motion, granted plaintiffs motion, and directed defendants to award plaintiff a degree, diploma and any authorizations necessary to allow him to take the dental boards. This Court granted defendants leave to appeal.
The lower courts erred in reaching their respective conclusions. On this record, defendants have not established that they are entitled to the benefit of the statute of limitations defense applicable to an article 78 proceeding. Further, contrary to the determination of the Appellate Division, there are issues of fact as to whether defendants' decision to deny plaintiff a degree was based on purely financial considerations, or whether academic considerations were involved. More information is necessary in order to ascertain whether there was an implied contract between the parties and, if so, whether the parties satisfied their respective obligations under such implied agreement. If, however, defendants' decision was in fact based upon plaintiffs academic performance, the action should have been brought as a proceeding under article 78, subject to review solely for arbitrariness or irrationality (see Matter of Olsson v Board of Higher Educ. of City of N.Y, 49 NY2d 408, 413-414), and would be untimely.
Order modified, etc.