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
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,
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.
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
All proposed findings of fact inconsistent with the foregoing are
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
All other motions at trial not specifically ruled upon are denied.
In accordance with the foregoing, the claim is dismissed.
LET JUDGMENT BE ENTERED ACCORDINGLY.