New York State Court of Claims

New York State Court of Claims

NDUKWE v. THE CITY UNIVERSITY OF NEW YORK, #2002-019-036, Claim No. 89322


Claim against the City University of New York for monies had and received in relation to check for foreign students educational expenses and living costs denied.

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:
ANTHONY & BERNARD, P.C.BY: Kelechi Amasike, Esq. & Wuyi Ogunyinka, Esq., of counsel
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Gail P. Pierce-Siponen, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
December 20, 2002

Official citation:

Appellate results:

See also (multicaptioned case)

Claimant, Felix Ndukwe, brings this Claim against the City University of New York, hereinafter referred to as "the University", alleging a claim for monies had and received when the University received money allegedly on behalf of Claimant and diverted the same to the credit of another student enrolled at the University.[1]
The bifurcated trial of this Claim was held in the New York City District on June 18, 2002. This Decision addresses the issue of liability only.

The facts of this Claim are relatively straightforward. University Bursar, Ms. Brigitte Zapata, testified the University, like most university centers, had a number of foreign students in attendance including students from Nigeria. In respect to many Nigerian students, the Foreign Student Office at the University would prepare annual estimates for costs associated with the attendance at the University, book fees, residential living expenses, and spending money. These annual estimates, once prepared, were given to Nigerian students who in turn would forward the estimates back home to Nigeria to sponsors who would cover their educational expenses and cost of living fees while attending the University. The general procedure was that once a sponsor in Nigeria received the annual estimate, he/she would go to the Central Bank to obtain funds for the student. The Central Bank in Nigeria would then forward those funds to Barclays Bank in New York, which in turn would then issue a check directly to the student but made payable only to the University with no other named payee associated therewith. The student would then take this check to the University Bursar's office to pay their tuition. Once the tuition was paid any excess balance from the check, which represented the cost of living in the city during the course of the school year, as well as associated expenses for books, fees, and other necessities, was returned to the student approximately thirty days later by a check payable directly to the student from the University. It became evident at trial, however, that the University Bursar's office did not receive copies of any annual estimate. Consequently, when a Nigerian student appeared with a check payable to the University, the bursar would simply verify the student was enrolled at the University, and the check would then be deposited and credited toward the University's tuition and expenses of the student presenting the check. The balance, if any, was returned to the presenting student.

Here, Claimant alleges that money was forwarded by the Nigerian Central Bank to Barclays Bank on his behalf and a check was issued to the University, allegedly for his tuition and living expenses, in the amount of approximately $10,799
.00. (Cl. Ex. 3A). Claimant stated that this check was appropriated by an individual named Victor Udensi, also a Nigerian student enrolled at the University. Claimant alleges that Mr. Udensi, after inappropriately obtaining the check meant for the benefit of Claimant, took the same to the University Bursar's office. Since Mr. Udensi was also an enrolled student at the University the check was received by the bursar's office, credited to Mr. Udensi's account and the balance of the monies returned to Mr. Udensi. The thrust of Claimant's case is that those monies, had and received by the University, should in fact be credited to his academic account covering his tuition and the balance of those funds should be returned to him.

At trial Claimant testified that he had no knowledge of Victor Udensi, either as a student at the University, or as an acquaintance at any time during the course of his education and enrollment at the University or subsequent thereto.

As part of its case, the State called Victor Udensi who provided the Court with a competing scenario as credible as the Claimant's relative to these funds allegedly had and received. Mr. Udensi testified that he has known Claimant, Felix Ndukwe, for a number of years. In fact, the two have lived together as roommates or as neighbors, on and off, during the course of their attendance as students at the University. According to Mr. Udensi, during the 1984-1985 school year — the year in issue relative to these funds — Mr. Udensi and Mr. Ndukwe lived together as roommates. Mr. Udensi testified that while living together Claimant's sponsor, Phoebe Ndukwe came to New York City for a visit. While staying at their shared residence, Phoebe Ndukwe obtained funds from Barclays Bank payable to the University and gave the same to Mr. Udensi to apply toward his tuition at the University. Mr. Udensi testified he took the funds to the bursar's office, applied them to his tuition and when the balance of the funds for associated living expenses was returned to Mr. Udensi, he claims the same was forwarded back to his sponsor Phoebe Ndukwe. As such, based on the testimony of Mr. Udensi, the Court is faced with competing scenarios, one in which the Claimant alleges that money was taken by Mr. Udensi — who Claimant would have the Court believe was an absolute stranger — who after converting those funds, presented them to the University, which applied them to the tuition of the wrong student. On the other hand, the Court must weigh the testimony of Mr. Udensi who testified that the money was given directly to him by his sponsor and applied directly to his tuition with the knowledge and consent of the sponsor, Phoebe Ndukwe.

In an action for monies had and received, particularly against a governmental entity, the Court of Appeals has clearly stated the elements necessary in order to prevail on such a cause of action:

[t]he type claimed here for money had and received is a contract implied in law. Although the action is recognized as an action in implied contract, the name is something of a misnomer because it is not an action founded on contract at all; it is an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another (Miller v Schloss, 218 NY 400, 406-407). It allows plaintiff to recover money which has come into the hands of the defendant "impressed with a species of trust" (see Chapman v Forbes, 123 NY 532, 537) because under the circumstances it is " ‘against good conscience for the defendant to keep the money' " (Federal Ins. Co. v Groveland State Bank, 37 NY2d 252, 258, quoting from Schank v Schuchman, 212 NY 352, 358). The remedy is available "if one man has obtained money from another, through the medium of oppression, imposition, extortion, or deceit, or by the commission of a trespass" (Miller v Schloss, supra, p 408). The action depends upon equitable principles in the sense that broad considerations of right, justice and morality apply to it, but it has long been considered an action at law (see Roberts v Ely, 113 NY 128; Diefenthaler v Mayor of City of N.Y., 111 NY 331, 337). An action for money had and received has been permitted against a public body in instances where plaintiff has paid money by mistake, money has been collected for an illegal tax or assessment, or property is erroneously taken or withheld by a public official (McDonald v Mayor of City of N.Y., 68 NY 23, 29, supra; see, e.g., Niagara Mohawk Power Corp. v City School Dist., 59 NY2d 262; and New York R.T. Corp. v City of New York, 275 NY 258, 264, affd 303 US 573 [recovery for taxes paid under compulsion of an unconstitutional tax levy]; County of Oneida v First Citizens Bank & Trust Co., 264 App Div 212....

(Parsa v State of New York, 64 NY2d 143, 148, rearg denied 64 NY2d 885).

In the present case, the Court is inclined to agree with the Assistant Attorney General that the Claimant's proof is not sufficient to meet the required elements of this cause of action for monies had and received and therefore should be dismissed.

First and foremost, there is no proof in this record that established an implied contract or any type of special trust between the University and the Claimant relative to this financial transaction. Claimant offered no proof at trial of any type of an agreement, expressed or implied, or any type of trust existing between the Claimant and the University concerning these educational funds. On this record it appears that the check issued (Exhibit 3A), was transmitted directly from Barclays to either the Claimant or Victor Udensi through Phoebe Ndukwe, and not to the University. Furthermore, the check was made payable simply to the University and was not earmarked or designated for either the Claimant or Mr. Udensi. Additionally, the Assistant Attorney General correctly noted that the Claimant, by his own testimony, had never received funds from Nigeria in this fashion prior to the check in question. He therefore cannot claim or assert that there was any type of prior expected course of conduct or policy with regard to him that was not followed by the University. Rather, the only agreement between the University and the Claimant is that which the University enters into with every enrolled and admitted student — namely to provide educational services in return for payment of a tuition or fee — no more and no less.

Furthermore, there is no proof on this record that the University acted in a false, misleading, deceitful, or oppressive manner in coming into possession of the check in question. From the evidence presented at trial, it is clear that the University obtained this check, made payable only to it, when presented by a bona fide registered Nigerian student to pay for his educational expenses then due and owing. In fact, Victor Udensi testified to the manner in which he came into possession of the check which, under his scenario, appears lawful and proper. Furthermore, Ms. Zapata, testified to the steps and procedures taken by the bursar's office of the University when presented with a check. Since no contrary policy or procedure was proven by the Claimant, there is no evidence that the University failed to follow the same or acted inappropriately in this case. The Court is inclined to agree with the Assistant Attorney General that if there was any fraud or egregious conduct in any form, the same occurred only between the Claimant and Mr. Udensi. On these facts, the University appears to be simply a holder in due course pursuant to the Uniform Commercial Code. (
Hartford Acc. & Ind. Co. v Walston & Co., 21 NY2d 219, rearg granted 21 NY2d 1041, on rearg 22 NY2d 672; Uniform Commercial Code § 3-302).

Additionally, the record is also devoid of proof that the University has continued to retain or withhold monies owed to the Claimant. While Barclays Bank acknowledged some time around 1990 that the check in question should have been issued for the studies of Felix Ndukwe, the Court was also presented with the credible testimony of Victor Udensi who stated that he obtained the check from his sponsor, Phoebe Ndukwe, and that the same was given directly to him by her for his studies. According to Mr. Udensi, Phoebe Ndukwe was sponsoring three Nigerian students, namely the Claimant, Mr. Udensi himself, and a third student Kingsley Ndukwe. In fact, the Court, as stated previously, is inclined to grant greater credibility to the testimony of Mr. Udensi than that of Claimant himself. While the Claimant denies even knowing Mr. Udensi during the course of their educational sojourn at the University, the proof established otherwise. The documents and testimony presented by the Assistant Attorney General show that both the Claimant and Mr. Udensi either roomed together or lived next to one another throughout their entire educational journey. Furthermore, the Court finds incredible Mr. Ndukwe's statement at trial that to date he still does not recognize Mr. Udensi since they both currently work for the New York State Department of Transportation at the same State Office facility located in Long Island City, New York, and have done so for the past 11 years.

Finally, since the University upon obtaining this check from Mr. Udensi simply withheld the portion of that check due the University for Mr. Udensi's tuition and returned the balance directly to Mr. Udensi, the University is not currently and has not, since 1985, been holding any money owed to the Claimant under any color of title or right. Rather, from this record it is abundantly clear that serious issues exist between the Claimant and Victor Udensi. If the funds presented to the University in fact belonged to Claimant and not to Mr. Udensi then the Court believes the Claimant's recourse would be to pursue an action, either criminal or civil, against Victor Udensi. This is something that Claimant has not done and apparently is reluctant to do for reasons beyond the purview of this Court. However, in this Court's view because the Court finds the testimony of Mr. Udensi as credible if not more credible than Claimant's, these issues, if they are to be resolved, need to be pursued in another, more appropriate, forum.

Based upon the foregoing, the Defendant's motion to dismiss, made at the close of proof and upon which the Court reserved at trial, is hereby granted and Claim No. 89322 is hereby DISMISSED.

Any motions upon which the Court had previously reserved or which remain undecided are hereby denied.


December 20, 2002
Binghamton, New York

Judge of the Court of Claims

[1] See, Ndukwe v. The City Univ. Of New York, Ct Cl, Blinder, J., Claim No. None, Motion No. M-45965, filed April 6, 1994.