Bicjan v. Hunter College of City University of New York

• Decision Date: 08 December 1982
• Docket Number: No. 66551,66551
• Citation: 116 Misc.2d 978,457 N.Y.S.2d 387
• Parties: , 8 Ed. Law Rep. 403 Suzanne BICJAN, Claimant, v. HUNTER COLLEGE OF the CITY UNIVERSITY OF NEW YORK, Defendant. Claim
• Court: New York Court of Claims

Page 387

457 N.Y.S.2d 387

116 Misc.2d 978, 8 Ed. Law Rep. 403

Suzanne BICJAN, Claimant, v. HUNTER COLLEGE OF the CITY UNIVERSITY OF NEW YORK, Defendant.

Claim No. 66551.

Court of Claims of New York.

Dec. 8, 1982.

Suzanne Bicjan, pro se claimant.

Robert Abrams, Atty. Gen. by Walter Rivera, Deputy Atty. Gen., for defendant.

MEMORANDUM--OPINION and ORDER

FRANK S. ROSSETTI, Judge.

The subject claim has two causes of action, the first for compensatory damages of $69 based on breach of contract and the second for punitive damages of $10,000 based on fraud. ¹ Defendant City University of New York ("CUNY") attacks the claim on two grounds: (1) the claim as a whole is deficient because allegedly the proper party defendant was not named; and (2) the second cause of action of the claim is improper because punitive damages are not recoverable against a public government corporation such as CUNY.

We find the first ground without merit (the fact the caption reads Hunter College of CUNY instead of just CUNY is certainly a minor, nonjurisdictional irregularity importing no prejudice to CUNY--see CPLR 2001), but we must agree that punitive damages are not recoverable against CUNY (see Sharapata v. Town of Islip, 82 A.D.2d 350, 441 N.Y.S.2d 275, affd. 56 N.Y.2d 332, 452 N.Y.S.2d 347, 437 N.E.2d 1104). This would technically permit dismissal of the second cause of action, although it would appear reassertion of a fraud cause of action for compensatory damages would not be barred thereby. ² However, we find a more basic jurisdictional omission in the circumstances here which requires us to dismiss the claim in toto. (See, e.g., Kurtz v. State, 40 A.D.2d 917, 918, 338 N.Y.S.2d 345, affd. 33 N.Y.2d 828, 351 N.Y.S.2d 973, 307 N.E.2d 46; Muscat v. State, 103 Misc.2d 589, 593, 426 N.Y.S.2d 711.) A brief recital of the facts is necessary to delineate the nature of the failure here.

On September 3, 1981, claimant registered for two graduate courses at Hunter College, a senior college of CUNY. She alleges that upon attending one of these classes on September 14, 1981 she found it different from the course description in the Hunter catalog. Ms. Bicjan then attempted to obtain a refund for both courses and a $31 student activity fee. However, she was informed by the Hunter College counsel to the president and the Hunter College registrar that Hunter would refund 100% for one course, but only 75% for the other and nothing for the student activity fee. Claimant withdrew from the courses on September 17, 1981 and made further demand for a full refund of all course and student fees paid. She then filed a "notice of claim" (i.e., a Blumberg form under General Municipal Law section 50-e) for $406.50 (the full amount of said fees) with the CUNY Office of Legal Counsel on September 23, 1981.

Hunter sent claimant a check dated October 15, 1981 for the aforesaid 100% and 75% course refund (i.e., $337.50), but, apparently before she received it, Ms. Bicjan wrote the said CUNY legal office on October 27, 1981, again demanding a full refund of $406.50. She then filed another notice of claim with the New York City Comptroller on November 2, 1981. Later, on December 21, 1981, she filed a notice of intention with this court and allegedly served a copy thereof on the State Attorney General. Finally, the subject claim was filed with the court on April 16, 1982.

In 1979, the Court of Claims was given jurisdiction over claims against the then newly-created CUNY, the successor to the Board of Higher Education in the City of N.Y. (See L.1979, ch. 305, § 1, Educ. Law, §§ 6203, 6224, subd. 3.) It was specifically provided in said legislation that such claims were to be "determine[d] ... in the same manner and to the extent provided by and subject to the provisions of the court of claims act with respect to claims against the state ...." (See Educ. Law, § 6224, former subd. 3, supra, now subd. 4; see, also, Jones v. C.U.N.Y., 57 N.Y.2d 984, --- N.Y.S.2d ----, --- N.E.2d ---- [11/9/82].) This act requires filing of a notice of intention or claim with the court and service of a copy on the Attorney General within specified time limitations, to wit, 90 days after accrual for tort claims and six months after accrual for contract claims. (See Court of Claims Act, § 10, subds. 3, 4; § 11.) However, where the court has jurisdiction over claims against a government entity deemed separate from the State, service of said copy must be upon that entity, not the Attorney General. (See, e.g., Cantor v. State, 43 A.D.2d 872, 873, 351 N.Y.S.2d 197.) Prior to its continuance as CUNY, the City Board of Higher Education was considered separate from its funding government body, the City of New York. (See Nelson v. Bd. of Higher Educ. of the City of N.Y., 263 App.Div. 144, 149, 31 N.Y.S.2d 825, affd. 288 N.Y. 649, 42 N.E.2d 744; see, also, Gold v. City of N.Y., 80 A.D.2d 138, 140, 437 N.Y.S.2d 973, & cases cited; Matter of Potter v. Bd. of Educ. of the City of N.Y., 43 A.D.2d 248, 249, 350 N.Y.S.2d 671.) Our examination of the statutes governing the former said Board and those governing CUNY discloses no substantial depreciation in separateness. (See, e.g., Educ. L., §§ 6201, 6203; see, also, John Grace & Co. v. State Univ. Constr. Fund, 44 N.Y.2d 84, 88-89, 404 N.Y.S.2d 316, 375 N.E.2d 377; Brinkley v. C.U.N.Y., 113 Misc.2d 732, 734- 735, 449 N.Y.S.2d 897; Jones v. C.U.N.Y., 105 Misc.2d 1087, 1089, 430 N.Y.S.2d 543, affd. 85 A.D.2d 936, 448 N.Y.S.2d 342, revd. other gds. 57 N.Y.2d 984, --- N.Y.S.2d ----, --- N.E.2d ---- [11/9/82], supra.) ³ Hence, we believe proper compliance with the Court of Claims Act required not only filing of the subject notice of intention and claim with the court, but also service of copies thereof on CUNY. Claimant failed to show any such service of the said notice and claim which purportedly gave this court jurisdiction over claimant's would-be action. Such failure to prove said jurisdictional prerequisite requires dismissal of the entire claim. (See Cantor v. State, supra.)

We observe parenthetically that the further requirement that a demand be made on CUNY at least 30 days prior to service of a notice of intention or claim (see Educ. Law, § 6224, subd. 2, as amd. by L. 1980, ch 317, § 14, prior to amdt. by L. 1982, ch. 711, § 1) has apparently been retroactively abolished. (See Jones v. C.U.N.Y., supra.) That requirement was extant at the times claimant attempted to commence her action at bar and seemingly she complied therewith orally on September 15, 1981 or in writing on September 23, 1981 or October 27, 1981. Were said requirement still applicable, however, claimant would still not have met the noted Court of Claims Act requirement since, even if the October 27th letter could be deemed a notice of intention or claim timely served 30 days after the oral September 15th...