State Higher Educ. Services Corp. v. Baker

• Decision Date: 07 November 1984
• Citation: 482 N.Y.S.2d 212,126 Misc.2d 244
• Parties: , 21 Ed. Law Rep. 976 The STATE of New York HIGHER EDUCATION SERVICES CORPORATION, Plaintiff, v. Lynda A. BAKER, Defendant.
• Court: New York City Court

Page 212

482 N.Y.S.2d 212

126 Misc.2d 244, 21 Ed. Law Rep. 976

The STATE of New York HIGHER EDUCATION SERVICES CORPORATION, Plaintiff, v. Lynda A. BAKER, Defendant.

Civil Court of the City of New York,

Special Term, Kings County,

Part 1.

Nov. 7, 1984.

Sennet & Krumholz, New York City, for plaintiff; John P. Bradley, New York City, of counsel.

Gerald Mann, New York City, for defendant; and Jay D. Silverstein, New York City.

RICHARD A. GOLDBERG, Judge.

In this action, the plaintiff, a corporation created by the State of New York for the purposes of granting and processing student loans has brought suit against the defendant for default in repayment.

Defendant now moves to strike the case from the trial calendar for plaintiff's failure to respond to defendant's interrogatories. Plaintiff claims that it is a State agency, exempt from responding to interrogatories by virtue of the provisions of CPLR § 3102(f). The relevant portion of that statute reads as follows:

"In an action in which the state is properly a party ... disclosure by the state shall be available as if the state were a private person, except further that it may be obtained only by order of the court ... and except that it may not include interrogatories or requests for admissions."

The basic issue to be resolved by this court is whether plaintiff herein, the State of New York Higher Education Services Corporation, is to be regarded as equivalent to "The State" for the purposes and protection of this section. Neither side has afforded the court with any precedents on this issue and this decision appears to be a determination of first impression.

There is no dispute that the State of New York, by virtue of sovereign immunity, is immune from suit except to the extent it has expressly waived that privilege or is engaged in non-governmental functions.

Professor Siegel, in his practice commentary to CPLR § 3102(f) on the question as to whether or not a State corporation should be granted protection against interrogatories states (Siegel, Practice Commentaries, McKinney's Cons.Laws of N.Y., Book 7B, CPLR C3102:10, p. 271):

"It is submitted ... that when the disclosure is being sought from an officer or agency of the state who (or which) could be sued ... in a court other than the court of claims, there is no warrant for holding such officer or agency to be the alter ego of the state for disclosure purposes. If the agency is not so identified with the state as to require that suit against it be brought in the court of claims, it should be deprived of 'state' status for the much lesser purpose of disclosure.... The key question should be: If an action were to be brought against this agency ... would it have to be brought in the court of claims? The answer will most often be No, and if it is, the agency ... should be overruled on any contention that it is immunized from disclosure as the equivalent of the state."

An examination of the enabling legislation, Education Law § 651 et seq. fails to...