LOMBARDI v. THE STATE OF NEW YORK, #2004-019-557, Claim No. 98863, Motion No.
State's motion for summary judgment dismissing educational malpractice claim is
granted; claim dismissed.
Footnote (claimant name)
THE STATE OF NEW YORK
Footnote (defendant name)
FERRIS D. LEBOUS
ROBERT W. MAYER, ESQ.
HON. ELIOT SPITZER, ATTORNEY GENERALBY: Alan B. Berkowitz, Assistant Attorney General, of counsel
June 30, 2004
See also (multicaptioned
The defendant State of New York (hereinafter "State") moves for an order
granting summary judgment pursuant to CPLR 3211 and 3212. Claimant opposes the
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
(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
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
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.
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."
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
for a Pharm.D. degree
(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
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
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
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
June 30, 2004
HON. FERRIS D. LEBOUS
Judge of the Court of Claims
The Court has considered the following papers in connection with this
Claim, filed August 26, 1998.
Notice of Motion No. M-68088, filed February 17, 2004.
Affirmation of Alan B. Berkowitz, AAG, in support of motion, dated February 11,
2004, with attached exhibits.
Affirmation of Robert W. Mayer, Esq., in opposition to motion, dated May 28,
2004, and filed June 7, 2004, with attached exhibits.
Affidavit of Theresa Lombardi, in opposition to motion, sworn to May 25,
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.
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).