Defendant's motion for summary judgment dismissing the claim pursuant to CPLR
3212 is granted. Claimant was a student enrolled in a Master of Arts Degree
Program at Empire State College, a non-traditional institution of higher
learning established and operated under section 352 of the Education Law.
Claimant alleges that she successfully completed all required course work for
the Master's Degree in Business and Policy Studies except for her final project,
the requirements of which are not specified in the motion papers submitted by
either party but appear to include a detailed paper or thesis upon an approved
topic. Claimant alleges that her final project was a position paper on welfare
reform and submitted evidence (Exhibit A) demonstrating that the final project
had received the necessary initial approvals of her mentor, the chair
(presumably of the Business Department) and the Director of Graduate Studies.
These approvals occurred on July 28, 1997 and August 5, 1997.
According to the claim (defendant's Exhibit A), claimant was assigned a mentor
named Dr. Joe Angiello sometime in 1996. She alleges in the document attached
to the claim that he "never contacted me or advised me about completion of
work." According to that same document, on January 26, 1999 claimant was
assigned a different mentor (Dr. Evelyn Wells) who claimant asserts failed to
contact or communicate with her for almost three months after being assigned and
prior to the filing of this claim on April 22, 1999. The claim alleges an
accrual date of January 26, 1999 which, perhaps coincidentally, is the date of
Evelyn Wells' assignment as claimant's replacement mentor. The claim contains
references to emotional pain, mental anguish, fraud, discrimination and breach
of contract in laundry list fashion but fails to provide specific allegations as
to how claimant was injured by the named employees of the college. She does not
allege that she ever completed the requirements for her degree or that any
action was taken by the college to prevent her from completing the degree
The grounds for the motion are not specified but defendant's attorney alleges
that the affidavits of the claimant's assigned mentors submitted on the motion
demonstrate that "the State University of New York neither committed any
tortious act or breached any implied or expressed contract with the claimant."
In support of the motion the defendant offered the affidavit of an Assistant
Attorney General, the pleadings and the affidavits of Professors Joseph Angiello
and Evelyn Wells who were assigned as first readers or mentors on the claimant's
final project. The professors detailed in their affidavits their contacts with
the claimant and the assistance and advice which they provided her regarding the
In opposition to the motion the claimant submitted a document which, while not
in proper affidavit form, will be treated as such by the Court. In that
affidavit claimant outlines the interaction between herself and representatives
of Empire State College relative to her final project.
The Court's role on a motion for summary judgment is issue finding rather than
issue determination (Sillman v Twentieth Century-Fox Film Corp., 3 NY2d
395). In order to deny summary judgment a court need only determine that a
factual issue arguably exists (S.J. Capelin Assoc. v Globe Mfg. Corp., 34
NY2d 338). The standards related to summary judgment are fundamental and
familiar. The moving party bears the initial burden of making a prima
facie showing of its entitlement to judgment as a matter of law (Holtz v
Niagara Mohawk Power Corp., 147 AD2d 857). Once such a showing has been
made the "burden is shifted to the opposing party to come forward with proof in
evidentiary form to show the existence of genuine triable issues of fact"
(Mahar v Mahar, 111 AD2d 501, 502; Ferber v Sterndent Corp., 51
The Court finds that the defendant's submissions were sufficient to shift to
the claimant the burden of showing that the defendant breached a promise,
express or implied, to provide mentors who would provide her reasonable and
timely assistance in completing her final project. Claimant's opposition to the
motion not only failed to raise a triable issue of fact in this regard but, in
fact, by the admissions contained therein allows this Court to determine this
motion as a matter of law.
New York does not recognize a tort based cause of action for educational
malpractice upon sound principles of public policy (Torres v Little Flower
Children's Servs., 64 NY2d 119). While damages may not be recoverable for
negligence based educational malpractice (Village Community School v
Adler, 124 Misc 2d 817), this does not mean that conduct which occurs within
an educational setting will not be actionable upon a breach of contract theory.
In fact, such a cause of action will be countenanced where it does not involve
the Court in determining the wisdom or propriety of educational services
rendered by educational professionals (Ansari v New York Univ., 1997 WL
The relationship between a student and his or her university is primarily
contractual in nature (Prusack v State of New York, 117 AD2d 729). The
rights and responsibilities of the parties are established and governed through
the catalogs, bulletins and other documentation issued by the college or
university (Andre v Pace Univ., 170 Misc 2d 893) and the failure to
provide the specific services promised therein may give rise to a cognizable
breach of contract action (Paladino v Adelphi Univ., 89 AD2d 85).
The instant claim, read liberally, states but a single cause of action sounding
in breach of contract and based upon the alleged failure of the assigned mentors
to contact claimant or to communicate with her about completing work on the
claimant's final project. These allegations are belied, however, by the
claimant's recitation of events contained in her affidavit in opposition to the
defendant's motion. While the claimant obviously mistakes applicable dates in
describing the pattern of interaction with her assigned mentors, it is clear
that the defendant provided the services alleged by the claimant to be due and
that the claimant has failed to establish a triable issue of fact upon her
breach of contract claim. In her affidavit the claimant clearly contradicts the
premise of the breach of contract claim; the failure to provide timely and
reasonable assistance in completing her final project. Although she became
dissatisfied with the assistance she received, including the extensive revisions
to her draft final project required or suggested by her mentors, the claimant
has failed to raise any triable issue of fact sufficient to preclude this Court
from dismissing her claim for breach of contract as a matter of law.
Finally, even if a viable breach of contract action was presented, the
claimant would be unable to recover damages for mental anguish or emotional pain
since "[a]s a general rule, there is no right to recover damages for emotional
distress in a breach of contract action in this State" (Hess v Nationwide
Mut. Ins. Co., 273 AD2d 689, 690; Wehringer v Standard Security. Life
Ins. Co. of N.Y., 57 NY2d 757). Likewise, the recovery of punitive damages
against the State is barred by public policy (Sharapata v Town of Islip,
56 NY2d 332).
The instant claim is dismissed.