New York State Court of Claims

New York State Court of Claims

RICHARDS v. THE CITY UNIVERSITY OF NEW YORK, #2000-014-109, Claim No. 93343


Claim seeking damages alleged to have resulted from the defendant's failure to provide a copy of claimant's diploma, is dismissed after trial.

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):

S. Michael Nadel
Claimant's attorney:
Deborah M. Ferdinand, Esq.
Defendant's attorney:
Eliot Spitzer, Attorney GeneralBy: Ellen Matowik, Esq., Assistant Attorney General
Third-party defendant's attorney:

Signature date:
July 17, 2000
New York

Official citation:

Appellate results:

See also (multicaptioned case)


The claimant attended City College, one of the senior colleges of the City University of New York (CUNY), from 1987 to 1991. He attended a graduation ceremony in the spring of 1991, but did not receive a diploma because, according to his testimony, he owed tuition.

Sometime during 1994, while he was living in the Virgin Islands, the claimant requested a copy of his transcript and diploma, which he needed in connection with a job for which he had applied, but he was unable to obtain them because he still owed tuition. By early February 1995 he paid all that he owed and again attempted to obtain his transcript and diploma, but in a telephone call to CUNY, he learned that he still could not receive the documents due to a problem which, according to his testimony, he was told could not be discussed over the phone.

He had enlisted the assistance of his friend, Trevor Payne, who resided in New York, and who also testified. As a result of inquiries made by Mr. Payne, the claimant learned that he could not receive his diploma because the records at CUNY did not indicate that he had passed an English language proficiency examination, which was required for graduation.

The claimant testified that he was aware that the examination was required for graduation, but that he had taken and passed it in 1989. During the summer of 1991, when he had applied to take a graduate architecture course at CUNY, he was told that he could not because there was no record of his having passed the proficiency examination. At the time, he obtained a letter from a Senior Secretary in the English Department at City College, which stated that he had passed the English proficiency examination on March 8, 1989. As a result, he was able to take the course. The letter, which was introduced into evidence by the claimant as Exhibit 2, is dated July 15, 1991.

As a result of several conversations with Mr. Payne, the claimant decided to return to New York in order to clear up the situation regarding the examination, so that he could obtain his transcript and diploma.

According to this testimony, he had made plans in February to take two weeks off from work, from April 17 through April 28, returning to work on May 1, 1995.[1]
His request for that time, which included one week vacation and one week leave of absence, is dated February 20, 1995, and it was approved on the same day. Exhibit 5. The claimant testified that these plans had been made before he decided to come to New York, and before he had any of the conversations with Mr. Payne.
The claimant flew to New York on April 28, 1995, a Friday. At the time he left for New York, he knew that he had no more approved leave from his employer, but he expected he could clear up the problem at CUNY in a day, and return to work when he was expected. According to his testimony, he first went to the City University on Monday, May 1, and returned on the next 2 days, when he spoke to several people at CUNY, but was unable to locate any record of the examination. It was not until Thursday that he spoke to a professor who told him to retake the exam, which he did that day. He passed the examination, and an entry was made in the computer records of CUNY. The same day, after obtaining the professor's permission to search for the exam which he had taken in 1989, he found the exam, and obtained from the professor a letter stating that he had taken and passed the exam in 1989. The letter and the 1989 exam were introduced into evidence as Exhibit 12.

In a letter dated April 30, 1995, the day before he went to CUNY, the claimant wrote his employer in the Virgin Islands, in which he stated that he needed to extend his leave from work, but since he was unable to "be definitive about the date of return" he offered his resignation. Exhibit B. The claimant testified that he mailed the letter on April 30, and that his resignation was accepted. He also offered into evidence a request for a 2 day leave of absence on May 26 and May 29, which was dated April 11, 1995, but was never approved. He testified that, during the week of May 1, he attempted, without success, to contact his employer about extending his leave of absence.

Based upon the foregoing facts, the claimant asserts that he lost his job because the negligence of CUNY in failing to record that he had passed the proficiency examination forced him to return to New York at a time when he had no leave time remaining.

The evidence does not support that conclusion. While it does appear that the defendant may have been negligent in not properly recording the claimant's passing of the examination in 1989, there is absolutely no basis for concluding that such negligence had anything to do with the claimant losing his job. In the first place, it is simply not credible that the circumstances were such that he was forced by CUNY to come to New York to clear up the situation. When he learned, sometime before his vacation commenced on April 17, 1995, of the reason he could not get his diploma, he knew that he had a letter, since 1991, from the English Department which stated he had passed the examination. Yet he never presented that letter to anyone at CUNY in 1995, either by mail before he left for New York, or in person on May 1 when he first spoke to personnel at CUNY about the problem. Nor did he present it at any time thereafter.

To the extent that he lost his job because he came to New York to resolve the problem, it was as a result of the date on which he chose to do so, a choice for which, under the circumstances, the claimant offered no credible explanation.

By the claimant's own testimony, he mailed the letter in which he offered his resignation on the day before he went to CUNY to attempt to resolve the problem, which was 2 days before he had to return to work. Thus, despite his testimony that he chose to come to New York on the last working day of his leave from his job because he expected to be able to resolve the problem in 1 day, he offered his resignation before he had even attempted to do so. The claimant's explanation that the principal purpose of the letter was to obtain clarification about the possibility of additional leave time, is also inconsistent with his expectation that he could solve the problem in a day, since he stated in the letter that he could not "be definitive about the date of return." Nothing about his ability to return to work when expected had changed from Friday, when he flew to New York, and Sunday, when he wrote and mailed the letter.

From the foregoing evidence it is clear that the claimant could have avoided having to come to New York at all by mailing a copy of the 1991 letter to CUNY, that he could have resolved the problem without losing his job by coming to New York earlier during his 2 weeks approved absence from work, and that he lost his job because he resigned. There is no basis upon which to find the defendant liable.

All proposed findings of fact inconsistent with the foregoing are rejected.

Based upon the claimant's testimony, and upon the 1991 letter confirming he had passed the English proficiency examination, it seems clear that, until sometime in the first half of 1995, he had no reason to believe that his records at CUNY did not reflect that he had passed the examination. Thus, the claim can be said to have accrued when CUNY refused to provide the diploma in 1995, after the claimant had paid the tuition he owed, so that his application for permission to file a late claim, and the filing of the claim, were timely. The defendant's motion at trial to dismiss the claim, on statute of limitations grounds, is therefore denied.

All other motions at trial not specifically ruled upon are denied.

In accordance with the foregoing, the claim is dismissed.


July 17, 2000
New York, New York

Judge of the Court of Claims

[1]Although the request for leave of absence (Exhibt 5, infra) indicates May 1 as the date he was to return to work, the claimant testified that since May 1 was a holiday in the Virgin Islands, he did not have to return to work until May 2.