New York State Court of Claims

New York State Court of Claims

RAGUSA v. THE STATE OF NEW YORK, #2000-011-515, Claim No. 99181, Motion No. M-61141


Defendant has moved for dismissal of claim on the basis that it was not timely filed and for summary judgment

Case Information

Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):
Cross-motion number(s):

Thomas J. McNamara
Claimant's attorney:
Jack Weiner, Esq.
Defendant's attorney:
Hon. Eliot Spitzer, Attorney General(By: Eileen E. Bryant, Esq., of counsel)
Third-party defendant's attorney:

Signature date:
April 10, 2000
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Defendant has moved for dismissal of the claim on the basis that it was not timely filed and for summary judgment. The claim is based upon allegations of defamation, as well as breach of contract and fraud, involving a graduate level course Claimant took with Empire State College.

As alleged in the claim, the parties entered into a learning contract for a course entitled African-American Religious History that was offered in the 1997 fall semester. According to Claimant, the contract "falsely and fraudulently misrepresented the contents of the program and the independence a student would have to pursue academic interests in areas covered by the course and to express them." He also alleges that he did not receive a passing grade for the course because he failed to "tow (sic) the political line demanded by the instructor". Finally, he complains that he was subjected to ridicule and characterized as a poor student.

The motion to dismiss the claim as untimely raises the issue of whether the claim was served within the time limits set forth in Court of Claims Act §10. Section 10(4) of the Act provides that a claim for breach of contract or fraud shall be served within six months of accrual of such claim. A claim for damages caused by an intentional tort, such as defamation, by one acting on behalf of the State must be served within ninety days of accrual (Court of Claims Act §10[3-b]). The claim was served on October 22, 1998. The causes of action for breach of contract and fraud are timely if each accrued on or after April 22, 1998 and the claim for defamation must have accrued on or after July 24, 1998.

According to Defendant, the causes of action sounding in breach of contract and fraud would have accrued at the latest on February 19, 1998 when Claimant was notified of his grade in the course. Claimant maintains that the claim did not accrue until September 19, 1998 when, following an appeal to the Vice President for Academic Affairs, he was advised that the grade would not be changed.

The expression "claim accrued" is not identical with the expression "cause of action accrued". (Waterman v State of New York, 19 AD2d 264, 266) and a claim is said to accrue when damages become ascertainable (Waters of Saratoga Springs v State of New York, 116 AD2d 875, affd 68 NY2d 777). Although it has been held that the pendency of an appeal does not delay accrual of a claim (Relyea v State of New York, 59 AD2d 364; Ferrer v State of New York, 172 Misc 2d 1), there is no hard and fast rule as to when damages in a given case become ascertainable (Otis Elevator Co. v State of New York, 52 AD2d 380). Here, though both parties connect accrual of the claim to an event related to the grade, the causes of action for breach of contract and fraud are not founded upon the grade Claimant received. The complaint is based on allegations that the course failed to fulfill the promises made by Defendant in the learning contract. As pleaded in the claim, the grade is a consequence of the breach and fraud rather than a basis for either. Consequently, even if the appeal had succeeded, that result would not have altered the fundamental objections raised in the claim and therefore, did not delay accrual of the claim (see, Ton-Da-Lay, Ltd., v State of New York, 70 AD2d 742). Insofar as notification to Claimant of the grade marked the end of the course, it represents the latest possible date of accrual and because the claim was not served until more than eight months after that date, the causes of action for breach of contract and fraud are untimely.

Even if the claim were to read so as to allege a claim based on the grade Claimant received, the claim would be subject to dismissal on the motion for summary judgment. The circumstances under which a student's challenge to a particular grade is subject to judicial review are extremely limited (Matter of Susan M. v New York Law School, 76 NY2d 241, 247) and have not been shown to exist here.

The claim for defamation is based entirely upon an allegation in the claim that "Claimant's instructors subjected Claimant to ridicule and aspersion and characterized him to other (sic) as a poor student, when in fact he was an excellent student." The pleading does not state when the claim arose as is required by Court of Claims Act §11 and because the claim does not plead the specific words complained of (CPLR 3016[a]) the date cannot be derived from other material before the court. The pleading requirements of section 11 are jurisdictional in nature and must be strictly construed (Park v State of New York, 226 AD2d 153) and therefore, any possible claim for defamation is not properly before the court.

The motion is granted and the claim is dismissed.

April 10, 2000
Saratoga Springs, New York

Judge of the Court of Claims

Papers Considered:
1. Notice of Motion for Summary Judgment dated February 1, 2000.
2. Affirmation of Eileen E. Bryant, Esq., dated February 1, 2000 with exhibits attached.
3. Claimant's Affidavit in Opposition sworn to the 22nd day of February, 2000 with exhibits attached.
4. Reply Affirmation of Eileen E. Bryant, Esq., dated March 1, 2000.