New York State Court of Claims

New York State Court of Claims

LOMBARDI v. THE STATE OF NEW YORK, #2004-019-557, Claim No. 98863, Motion No. M-68088


State's motion for summary judgment dismissing educational malpractice claim is granted; claim dismissed.

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:
Defendant's attorney:
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Alan B. Berkowitz, Assistant Attorney General, of counsel
Third-party defendant's attorney:

Signature date:
June 30, 2004

Official citation:

Appellate results:

See also (multicaptioned case)


The defendant State of New York (hereinafter "State") moves for an order granting summary judgment pursuant to CPLR 3211 and 3212. Claimant opposes the motion.

Claimant graduated from high school in the spring of 1993. In the fall of that year, she entered the University of New York at Stony Brook ("Stony Brook"). Upon her admission to Stony Brook, claimant had an undeclared major since she did not know what career path she was going to pursue. (State's Exhibit A, p 20). Ultimately claimant selected biochemistry as a major. However, at some point thereafter claimant became interested in pursuing a career as a pharmacist. On October 21, 1995, claimant decided to change majors and submitted an application for admission into the pharmacology program at Stony Brook. Prior to changing her major, claimant received a booklet from Stony Brook called "Pharmacology" which states, in pertinent part, that "[a] BS pharmacology degree is an excellent preparation for the following programs...Pharmacy School..Pharm.D." (State's Exhibit B; emphasis added). Additionally, claimant testified during her deposition that her advisor Jean Devlin, Director of the Undergraduate Pharmacology Program at Stony Brook, assured her that upon graduating with a Bachelor of Science degree in pharmacology from Stony Brook she would be eligible for admission into a two-year Doctor of Pharmacy program also known as a "Pharm.D." program. (State's Exhibit A, pp 42-47).

In June 1997, claimant began filling out applications for graduate school and became concerned when each application inquired when and where the applicant obtained a "Bachelor of Pharmacy Degree." (State's Exhibit A, p 66). Upon further investigation, claimant soon discovered that her "Bachelor of Science in Pharmacology" was not the equivalent of a "Bachelor of Pharmacy Degree" and that the former was insufficient, in and of itself, for admission into a graduate program leading to a Pharm.D. degree. Claimant averred that she confronted Ms. Devlin about this information to no avail. (State's Exhibit A, pp 73-77).

On September 3, 1997, claimant received a letter from Ms. Devlin which states, in part, as follows:
[i]n reviewing your current transcripts, I see that the classes for which you have registered this semester (Fall 1997) will not enable you to graduate with a B.S. in pharmacology in May 1998. The only pharmacology course you have completed to date is BCP 406, Pharmacology Colloquium. To graduate as a pharmacology major you would have to complete the pre-requisite course BIO 365 or BIO 311, Biochemistry Laboratory and the following pharmacology courses....

(State's Exhibit E, emphases added).

Thereafter, claimant left the pharmacology program at Stony Brook without graduating and transferred to the bachelors' program at Rutgers, The State University of New Jersey. (State's Exhibit A, p 26). Claimant entered Rutgers as a third year student since she was able to transfer approximately 70 out of 120 credits from her first two years at Stony Brook. (State's Exhibit A, pp 27, & 81-82). Claimant also applied to the graduate Pharm.D. program at Rutgers in the Fall of 1999 to which she was accepted. (State's Exhibit A, pp 82-83).

This claim alleges causes of action based on fraud, breach of contract and negligence. By way of this motion, the State seeks summary judgment dismissing this claim on the ground that this claim should be deemed one based on educational malpractice which is barred in the State of New York due to public policy considerations.


On a motion for summary judgment, the moving party must present evidentiary facts that establish the party's right to judgment as a matter of law, while the opposing party must present evidentiary proof in admissible form that demonstrates the existence of a factual issue. (Friends of Animals v Associated Fur Mfrs., 46 NY2d 1065, 1067-1068). For the purposes of a summary judgment motion, the factual allegations of the opposing party must be deemed true and granted every favorable inference. (Bershaw v Altman, 100 AD2d 642, 643). The court finds that the State's submissions are sufficient to shift to claimant the burden of raising a triable issue of fact on whether Stony Brook breached an implied contract and/or fraudulently represented that its pharmacology program was an excellent preparation for a Pharm.D. program.

It is well-settled that New York does not recognize an educational malpractice cause of action based upon sound principles of public policy of judicial noninterference into the process of learning. (Torres v Little Flower Children's Servs., 64 NY2d 119, 885, cert denied 474 US 864). This principle holds true even when a litigant attempts to circumvent this rule by describing the cause of action in other terms such as contract or fraud. (Id.). In other words, it is up to the court, as here, to determine the true nature of the cause of action pled.

Turning first to claimant's purported breach of contract cause of action, there is no doubt that the relationship between a student and a university is primarily contractual in nature arising from the catalogs, bulletins and other materials issued by the university and that the failure to provide "certain specified services" promised therein may give rise to a cognizable breach of contract action. (Paladino v Adelphi Univ., 89 AD2d 85, 92; Prusack v State of New York, 117 AD2d 729; André v Pace Univ., 170 Misc 2d 893). That having been said, however, when the alleged cause of action would require the court to determine the wisdom or propriety of educational services rendered by a university, courts must refuse such involvement based upon the aforementioned public policy grounds. (Sirohi v Lee, 222 AD2d 222, lv dismissed, lv denied 88 NY2d 897; Ansari v New York Univ., 1997 WL 257473). Generally, "[c]ourts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community [citations omitted]." (Matter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408, 413).

Claimant argues that an implied contract was created between her and Stony Brook based upon the bulletins representing that a Bachelors of Science degree in pharmacology "[w]as an excellent preparation for a Pharm.D. program, [Stony Brook] and its staff made a clear statement and promise to that effect, and by accepting Claimant's tuition created a contract that they breached by failing to provide specific services."[1] (Affirmation of Robert W. Mayer, Esq., ¶ 12). Moreover, claimant alleges that "[e]ven if the entire program were completed and the B.S. degree contemplated by the program was conferred it was still insufficient to even be considered a preparation for a Pharm.D. degree program."[2] (Affirmation of Robert W. Mayer, Esq., ¶ 6; emphasis added; upper case in original deleted).

The court has carefully reviewed the Stony Brook bulletins and finds the language therein

to promise that the pharmacology degree is an "excellent preparation" for certain careers or higher education. In order to determine whether this is accurate, claimant is asking this court to determine the quality of the pharmacology program at Stony Brook as a stepping stone to other careers or higher education. Any attempt to answer this query would necessarily include a determination by this court of the quality of the educational program offered by Stony Brook which is impermissible pursuant to the aforementioned public policy. (Olsson, 49 NY2d at 408). As such, the State's motion for summary judgment dismissing the contract cause of action as one based upon educational malpractice must be granted. For the same reasons, the court finds that claimant's cause of action stated in terms of negligence is also based upon educational malpractice and, as such, must also be dismissed. (Livolsi v Hicksville Union-Free School Dist., 263 AD2d 447; Vought v Teachers Coll., Columbia Univ., 127 AD2d 654).

With respect to claimant's cause of action based on fraud, claimant's counsel avers that Ms. Devlin "[s]hould have known or indeed did know that the Program was insufficient for its stated purpose. Advertising the Program and continuing to encourage Claimant to continue in the Program constitute nothing less than the perpetration of a fraud against the Claimant. The inadequacy of the Program to meet its advertised, specific purpose is not Claimant's opinion but is a fact capable of proof." (Affirmation of Robert W. Mayer, Esq., ¶ 15; emphasis omitted).

The elements of fraud include misrepresentation of a material fact, scienter, justifiable reliance, and injury. (CPLR 3016 [b]; Lanzi v Brooks, 54 AD2d 1057, 1058, affd 43 NY2d 778). The Second Department has stated that "[w]hile negligent misrepresentations and judgmental errors ought not be actionable [citation omitted], misrepresentations coupled with the element of scienter should result in the imposition of liability." (Paladino, 89 AD2d at 94 [emphasis in original]). Here, claimant has not submitted proof establishing even a question of fact regarding any intentional misrepresentations of a material fact by anyone at Stony Brook such as by affidavit or deposition testimony from Ms. Devlin. Stated another way, while the Stony Brook bulletins and/or Ms. Devlin may well have stated an opinion relative to the extent to which a pharmacology degree is helpful in pursuing certain careers or a higher education, there is no proof in this record that Stony Brook intentionally misrepresented that a pharmacology degree would automatically permit a student entry into a Pharm.D. program. (Green v Leibowitz, 118 AD2d 756). As such, the State's motion for summary judgment dismissing the fraud cause of action must be granted. (Sirohi, 222 AD2d 222).

Accordingly, in light of the foregoing, it is ORDERED that the State's motion for summary judgment, Motion No. M-68088, is GRANTED and Claim No. 98863 is DISMISSED.

June 30, 2004
Binghamton, New York

Judge of the Court of Claims

The Court has considered the following papers in connection with this motion:

  1. Claim, filed August 26, 1998.
  2. Notice of Motion No. M-68088, filed February 17, 2004.
  3. Affirmation of Alan B. Berkowitz, AAG, in support of motion, dated February 11, 2004, with attached exhibits.
  4. Affirmation of Robert W. Mayer, Esq., in opposition to motion, dated May 28, 2004, and filed June 7, 2004, with attached exhibits.
  5. Affidavit of Theresa Lombardi, in opposition to motion, sworn to May 25, 2004.

[1]Claimant's references to the ability to produce an expert at trial regarding the insufficiency of the Stony Brook program (Affirmation of Robert W. Mayer, Esq., ¶ 6), do not equate to the actual production of expert testimony in defense of a summary judgment motion.
[2]Claimant concedes that she did not complete the requirements for the pharmacology program at Stony Brook and did not graduate therefrom. Moreover, no proof is submitted to support counsel's allegation that claimant had adequate time to complete the pharmacology program prior to graduation despite Ms. Devlin's letter dated September 3, 1997. (Affirmation of Robert W. Mayer, Esq., ¶ 8).