The claim asserts causes of action for breach of contract and breaches of the covenant of good faith and fair dealing relating to claimant's dismissal from a SUNY masters degree program. The Court ruled that an implied contract existed between claimant and SUNY upon which to base the claim, however, a claim based upon an academic dismissal is not a judicially cognizable claim. Breach of contract actions brought against an educational institution contesting purely academic determinations are not recognized in New York. As a result, the State's motion for summary judgment pursuant to CPLR 3212 was granted.
|Claimant(s):||VICKI C. ROBIE|
|Claimant short name:||ROBIE|
|Footnote (claimant name) :|
|Defendant(s):||STATE OF NEW YORK|
|Footnote (defendant name) :|
|Judge:||J. DAVID SAMPSON|
|Claimant's attorney:||HOGAN WILLIG
BY: William A. Lorenz, Jr., Esq.
|Defendant's attorney:||HON. ERIC T. SCHNEIDERMAN
New York State Attorney General
BY: Timothy J. Flynn, Esq.
Assistant Attorney General
|Third-party defendant's attorney:|
|Signature date:||February 8, 2018|
|See also (multicaptioned case)|
The claimant, Vicki C. Robie, served a Notice of Intention to File a Claim on the Office of the Attorney General of the State of New York on June 13, 2011. A claim was served on June 22, 2012 and an amended claim was served on July 25, 2012. The defendant State of New York (State) answered the amended claim on August 29, 2012. After being granted permission by the Court, a second amended claim was served on May 14, 2014 and an answer was served on June 20, 2014. The original claim and amended claim assert causes of action for breach of contract and breach of the covenant of good faith and fair dealing with respect to claimant's dismissal from a masters of science degree program in the Certified Nurse Anesthetist Program (CNAP) at the State University of New York at Buffalo School of Nursing (SUNY Nursing) in January 2010. The second amended claim added an additional cause of action for breach of contract. The State now brings a motion for summary judgment pursuant to CPLR Rule 3212. The claimant opposes the motion.FACTUAL BACKGROUND
The claimant was admitted into the master's degree program of CNAP at SUNY Nursing in February 2007. During the spring semester of 2009, claimant failed a course entitled Principles of Anesthesia IV, receiving a grade of 79 with the minimum required grade being 80. As a result of her failure, claimant was placed on academic probation. On May 26, 2009, claimant received a letter from David J. Lang, Ph.D., Director of Student Affairs advising claimant that she had received an unacceptable grade and in accordance with the policies of progression for graduate students at SUNY Nursing, she was placed on probation and would be required to obtain grades of "B" or better for the remaining courses and meet the conditions of the program contract. Claimant signed the program contract, which included the terms applicable to her academic probation. In addition to obtaining grades of "B" or better in her remaining courses, claimant was also required to repeat the course she had failed during the spring 2010 semester and obtain a grade of "B" or better.
On or about December 18, 2009, claimant was advised that she received a failing grade in a course known as FUR605, a course requiring three clinical rotations at three different facilities. During the first of the three rotations at Millard Fillmore Hospital (MFH), claimant alleges that upon completion of the rotation she did not receive a final summary evaluation, which is alleged to be a violation of SUNY Nursing's policies and procedures. However, claimant was later advised that she failed the MFH rotation. Claimant completed a second rotation at Erie County Medical Center (ECMC) and was advised on October 29, 2009 that she had also failed this rotation. Claimant alleges that she advised Michael R. Lamparelli, MS, CRNA, the Clinical Assistant Professor and Clinical Residency Coordinator of CNAP that she had observed rampant cheating among the students in CNAP. The following day, claimant began her third and final rotation at Community General Hospital in Syracuse, New York (CGH). In early January 2010, claimant received a failing grade for NUR605 and was dismissed from CNAP.
On January 5, 2010, claimant began an appeal process by filing a petition for reinstatement to the SUNY Nursing school's MS/DNP Committee. On January 6, 2010, claimant's petition was denied. As a result, on January 8, 2010, claimant received correspondence from SUNY Nursing advising that she was dismissed from CNAP. On April 22, 2010, claimant submitted six grievances to the SUNY Nursing school at the departmental level. A departmental grievance committee was convened on September 14, 2010, which continued until September 21, 2010 and recommended that claimant be reinstated into the program. On October 5, 2010, this recommendation was submitted to Nancy Campbell-Heider, Ph.D., the Chair of the Graduate Department and Director of the MS/DNP program. Dr. Campbell upheld the dismissal. On December 3, 2016, claimant submitted a decanal appeal to Jean K. Brown, Ph.D., the Dean of SUNY Nursing, which included three new grievances. She also submitted a further appeal at the graduate school level on February 21, 2011, both of which were unsuccessful. On March 15, 2011, claimant received correspondence from John T. Ho, Ph.D., interim Vice Provost for Graduate Education and Dean of the Graduate School advising that her appeal for readmission had been denied and that this determination was the final step in SUNY's process and there was no further appeal.LAW
Summary judgment is a drastic remedy which should only be granted when the moving party establishes that there are no triable issues of fact (Vega v Restani Constr. Corp., 18 NY3d 499 ). The proponent of such a motion must present facts in evidentiary form sufficient to establish its right to judgment as a matter of law (Alvarez v Prospect Hosp., 68 NY2d 320 ; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 ). If the proponent of the motion fails to make a prima facie showing of entitlement to summary judgment, the motion must be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., supra at 324). In deciding a summary judgment motion, the court must view the evidence in a light most favorable to the non-moving party (Black v Kohl's Dept. Stores, Inc., 80 AD3d 958 [3d Dept 2011]).
The defendant first alleges that claimant failed to satisfactorily meet the academic requirements of CNAP and that if a contract exists, there is no breach of contract or breach of the covenant of good faith and fair dealing. The claimant has asserted two causes of action, breach of contract and breach of the covenant of good faith and fair dealing, contending that the defendant breached its contract with claimant by dismissing her from a masters of science degree program at SUNY. Claimant does not rely upon a written agreement but rather that her acceptance into the masters program created an implied agreement between claimant and SUNY. It has been held that when a student is admitted into an academic institution, an implied contract arises between the institution and the student "such that if (the student) complies with the terms prescribed by the (institution), he [or she] will obtain the degree which he [or she] sought" (Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408 ). As such, the Court finds that an implied contract exists between claimant and SUNY. However, whether claimant failed to satisfactorily meet the academic requirements of CNAP sufficient to justify her dismissal from that program and whether defendant breached that implied contract by dismissing her raise questions of fact that may not be determined in a motion for summary judgment. As such, defendant's first argument fails.
The defendant's second argument alleges that the claim based upon an academic dismissal from CNAP does not raise a judicially cognizable claim. The Court of Appeals has consistently held that "administrative decisions of educational institutions involve the exercise of highly specialized professional judgment and these institutions are, for the most part, better suited to make relatively final decisions concerning wholly internal matters" (Maas v Cornell Univ., 94 NY2d 87 , citing to Matter of Olsson, supra at 413). The courts of this state have long recognized a strong policy consideration militating against the intervention of courts in controversies involving educational institutions which relate to that institution's judgment of a particular student's academic performance, holding that to do otherwise would inappropriately involve the courts in the very core of academic and educational decision making (Susan M. v New York Law School, 76 NY2d 241, 245-246 ). In such controversies, review is to be restricted to a special proceeding under CPLR Article 78 and the scope of judicial review is only to determine whether the decision was arbitrary, capricious, irrational or in bad faith.
The courts have previously dismissed breach of contract actions against educational institutions similar to the contractual claim at issue in the present motion. In Keles v Trustees of Columbia Univ. in City of N.Y., 74 AD3d 435 (2010), the First Department affirmed the decision of the lower court dismissing a complaint alleging a cause of action for breach of contract. The appellate court ruled that whether the plaintiff's GPA was sufficient for him to continue as a teaching assistant, which subjects were properly included in his qualifying exam, whether an exam question reflected the course work, whether he was correctly determined to have failed a particular test, and whether the university improperly delayed in awarding him a degree did not form a basis for a cognizable breach of contract action. While recognizing that academic institutions are not immune from judicial scrutiny, they ruled that courts are to restrict their review to a special proceeding under CPLR Article 78 (Id. at 435).
Similarly, in Keles v Hultin, 144 AD3d 987 (2d Dept 2016), the Second Department affirmed the dismissal by a lower court of a complaint that asserted a breach of contract action alleging that the Polytechnic Institute of New York University had awarded the plaintiff a "lower-status" master's degree than the one he attained, improperly refused to permit him to register to complete his course work toward a doctorate degree, and failed to compensate him for the work he performed in designing and printing a poster and other recruitment materials for the university. Once again, the appellate court ruled that any review should be restricted to a special proceeding under CPLR Article 78 (Id. at 988).
Most recently in Sarwar v. New York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 150 AD3d 913 (2d Dept 2017), the Second Department affirmed the decision of the lower court dismissing a complaint alleging breach of contract and unjust enrichment where a plaintiff enrolled as a medical student at the defendant New York College of Osteopathic Medicine of New York Institute of Technology alleged that he was improperly dismissed from the medical program after the plaintiff failed two of three courses during the first semester. The appellate court ruled that since the plaintiff is, in essence, challenging the academic decisions of the medical school, the lower court correctly determined that he should have sought review in a special proceeding pursuant to CPLR Article 78.
The Court of Claims is a court of limited jurisdiction with the authority to hear claims against the state and certain public authorities for money damages only (Court of Claims Act § 9). Court of Claims Act § 9  provides that the subject matter jurisdiction of the Court of Claims "is limited to actions seeking money damages against the State in appropriation, contract or tort cases." Although claimant frames her claim as one for breach of contract and breach of the covenant of good faith and fair dealing and seeks only money damages, the courts have consistently ruled that breach of contract actions brought against an educational institution contesting purely academic determinations are not recognized in New York and that the claimant is limited to a review by special proceeding in Supreme Court in accordance with CPLR Article 78. This Court may not convert this action into a special proceeding as CPLR Article 78 provides that such a proceeding may only be brought in Supreme Court [CPLR § 7804 (b)]. As a result, the claim fails to assert a cognizable cause of action and must be dismissed.
Although the Court finds that no cognizable cause of action exists warranting dismissal, the defendant has also raised a third argument in support of its summary judgment motion that the court lacks subject matter jurisdiction in that claimant's notice of intention was served late and the claim is therefore untimely. Court of Claims Act § 10 (4) provides that a claim alleging breach of contract, express or implied shall be filed and served upon the attorney general within six months after the accrual of the claim, unless the claimant shall serve upon the attorney general a notice of intention to file a claim, in which event the claimant's time to file the claim is extended to two years. The filing and service requirements of the Court of Claims Act are jurisdictional and must be strictly construed (Finnerty v New York State Thruway Auth., 75 NY2d 721 ). For purposes of the Court of Claims Act, a claim accrues when damages are reasonably ascertainable (Richard A. Hutchens CC, L.L.C. v State of New York, 59 AD3d 766 [3d Dept 2009], lv denied 12 NY3d 712 ). The failure to timely serve a notice of intention or a claim within the requisite time period divests the Court of subject matter jurisdiction requiring dismissal of the claim (Alston v State of New York, 97 NY2d 159 ); Ivy v State of New York, 27 AD3d 1190 [4th Dept 2006]).
Claimant alleges that her claim for breach of contract accrued on March 15, 2011, the date that claimant received correspondence from the defendant advising that her appeal for readmission had been denied and that there was no further appeal. The defendant alleges that the claim for breach of contract accrued in early January 2010 when claimant was notified that she was dismissed from CNAP. The record indicates that claimant received correspondence from defendant on January 8, 2010 advising that she was dismissed from CNAP. There is nothing contained in the record indicating that the administrative appeals process at SUNY mandates that claimant first exhaust her administrative remedies before she may assert a legal claim by filing a notice of intention to file a claim or a claim. Claimant's contention that her damages were not "wholly ascertainable" until she exhausted the appeal process is unavailing since, "a delay in filing a claim will not be excused if a claimant's damages are reasonably ascertainable, 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] As such, the claim accrued on January 8, 2010 when claimant was notified that she was dismissed from CNAP, not on March 15, 2011 when she was advised that her appeal for readmission was denied (see Syrkin v State of New York, UID No. 2006-030-524 [Ct Cl, Scuccimarra, J., April 5, 2006]). Since the notice of intention to file a claim was not served until June 13, 2011, the notice of intention is not timely and this Court lacks subject matter jurisdiction over the claim. As a result, and as an alternative ground, the claim must be dismissed.
Based on the foregoing, defendant's motion no. M-91332 for summary judgment pursuant to CPLR § 3212 is granted and claim no. 121454 is dismissed.
February 8, 2018
Buffalo, New York
J. DAVID SAMPSON
Judge of the Court of Claims
The following were read and considered by the Court.
1. Notice of motion of Assistant Attorney General, Timothy J. Flynn, Esq., dated November 3, 2017 with annexed Exhibits A-L;
2. Memorandum of Law in opposition to motion for summary judgment of William A. Lorenz, Jr., Esq., dated November 30, 2017 with annexed Exhibits A-I; and
3. Reply affidavit of Assistant Attorney General Timothy J. Flynn, Esq., dated December 5, 2017.