New York State Court of Claims

New York State Court of Claims

KELLY v. THE STATE OF NEW YORK, #2002-015-249, Claim No. 104922, Motion Nos. M-64568, CM-64724


Pro se claimant's motion for summary judgment in case seeking to recover cost of tuition paid on behalf of son who was member of Army National Guard and whose tuition would have been paid by Division of Military and Naval Affairs upon timely filing of application was denied. State's cross-motion to dismiss claim for failure to state a cause of action granted.

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):
Claimant's attorney:
Thomas P. Kelly, Sr., Pro Se
Defendant's attorney:
Honorable Eliot Spitzer, Attorney General
By: Kathleen M. Resnick Assistant Attorney General
Third-party defendant's attorney:

Signature date:
May 8, 2002
Saratoga Springs

Official citation:

Appellate results:

See also (multicaptioned case)


Claimant's motion for summary judgment seeking an award of $1,700.00 as reimbursement for tuition paid by claimant to the State University of New York (SUNY) at Oneonta on behalf of his son Thomas P. Kelly, Jr. for the spring 2001 semester is denied. The State's cross-motion for summary judgment seeking dismissal of the claim for failure to state a cause of action is granted. This claim filed on September 19, 2001 seeks to recover damages against the State for an alleged breach of contract between claimant's son, Private Thomas P. Kelly (Pvt. Kelly), and the New York State Division of Military and Naval Affairs (DMNA). Under the terms of the alleged contract, DMNA was to pay the cost of Pvt. Kelly's tuition under the Recruitment Incentive and Retention Program (see, Education Law § 669-b) in an amount up to $3,400.00 annually in exchange for his enlistment in the Army National Guard. It is further alleged that claimant's son was advised by Army [National Guard] Officer Sergeant Bunyon that in order to qualify for the program upon Pvt. Kelly's return from basic training he was to submit a letter of college acceptance and proof of denial of financial assistance to his unit Sergeant. Claimant asserts that both such items were submitted by Pvt. Kelly as instructed but his son's request for tuition assistance for the Spring 2001 semester was denied on the ground that Pvt. Kelly had not timely completed and filed a required form (DMNA Form 96-1). Because the DMNA refused to process a later submitted Form 96-1 claimant paid $1,700.00 in tuition to SUNY Oneonta for which he now seeks compensation. It is also asserted that claimant and Pvt. Kelly made numerous attempts to obtain a reversal of the DMNA's decision but were unsuccessful in obtaining reimbursement. The claim states that it accrued on August 21, 2001 at 6:00 p.m. at 330 Old Niskayuna Road, Latham, New York.

The pro se claimant moved for summary judgment by filing a notice of motion on January 14, 2002 accompanied by a "request for summary judgement" dated November 28, 2001. Although this "request" bears the signature of the claimant and an apparent signature and stamp of a New York State Notary Public qualified in Westchester County it is not in affidavit form and does not otherwise indicate that the informant swears that the information contained in the document is true. The claimant also submitted statements from his wife Denise A. Kelly and his son Thomas P. Kelly, Jr. These two statements, while not in strict affidavit form, contain sufficient qualifying language to warrant treatment as affidavits unlike claimant's November 28, 2001 request which, as noted above, contains only signatures and a notary stamp. Movant also attached to his notice of motion copies of various correspondence to and from State officials regarding his request for reimbursement of the payment of his son's tuition.

CPLR 3212 (b) requires that a motion for summary judgment shall be supported by affidavit, a copy of the pleadings and by other available proof such as depositions and written admissions. The affidavit shall be by a person having knowledge of the facts and shall show that there is no defense to the cause of action or that the defense has no merit. While a movant's failure to attach a copy of the pleadings is not fatal to a motion for summary judgment since the Court of Claims is a filing court whose rules require that the pleadings be filed with the Clerk claimant's November 28, 2001 statement does not satisfy Rule 3212 (b) affidavit requirement. Nor are the sworn statements of claimant's wife and son sufficient to warrant the court as a matter of law in directing judgment in claimant's favor (CPLR 3212 [b]). Claimant must support a motion for summary judgment by "tender of evidentiary proof in admissible form" (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067). Should the moving party fail to make a prima facie showing of his entitlement to judgment as a matter of law, the motion will be denied regardless of the sufficiency of the opposing papers (Alvarez v Prospect Hosp., 68 NY2d 320).

Clearly the evidence in admissible form offered here does not demonstrate that any contract existed between claimant and the State's Division of Military and Naval Affairs pursuant to the Division's Recruitment Incentive and Retention Program. The agreement to provide for the payment of college tuition in return for service in the National Guard does not in any way implicate the interests of a non-contracting parent and a parent's payment of a child's college tuition, not proven here, does not give rise to a contract (express or implied) between the parent and DMNA. Any such agreement was clearly not intended to benefit the parent who was under no legal obligation to pay college tuition costs (see, Bethune v Bethune, 46 NY2d 897). Any benefit to the parent arising from the agreement between the defendant and Thomas Kelly, Jr. was incidental to, and independent of, the benefits enuring to the contracting parties (Johnson City Cent. School Dist. v Fidelity & Deposit Co. of Md., 263 AD2d 580).

As to any claim of negligence "in order to set forth a prima facie case of negligence, the plaintiff must demonstrate: (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) an injury suffered by the plaintiff which was proximately caused by the breach" (Murray v New York City Hous. Auth., 269 AD2d 288, 289). The question whether a duty of care is owed by the defendant is a question of law for the Court to decide (Garcia v J.C. Duggan, Inc., 180 AD2d 579) and it is well settled that "[i]n the absence of duty, there is no breach and without a breach there is no liability" (Pulka v Edelman, 40 NY2d 781, 782). As the claimant has failed to set forth any facts upon which a duty, either express or implied, was owed him by the defendant the motion for summary judgment must be denied.

The defendant on its cross-motion alleges that the State owed no duty to the claimant/parent arising in either contract or tort. Having determined that the defendant owed no legal duty to the claimant, the defendant is entitled to summary judgment dismissing the claim for failure to state a cause of action (Conboy v Mogeloff, 172 AD2d 912).

The claim is, accordingly, dismissed.

May 8, 2002
Saratoga Springs, New York

Judge of the Court of Claims

The Court considered the following papers:
  1. Notice of motion dated December 27, 2001;
  2. "Request for Summary Judgement" of Thomas P. Kelly, Sr. dated November 28, 2001, with attachments;
  3. Statement of Denise A. Kelly sworn to December 18, [2001];
  4. Statement of Thomas P. Kelly, Jr. sworn to December 19, 2001;
  5. Notice of cross-motion dated February 13, 2002;
  6. Affirmation of Kathleen M. Resnick dated February 13, 2002, with exhibits.