New York State Court of Claims

New York State Court of Claims

ONITIRI v. THE CITY UNIVERSITY OF NEW YORK , #2006-028-018, Claim No. 106959


Claimant failed to prove a prima facie case against Defendant in an action to recover monies withheld from Claimant’s tax refunds to satisfy a judgment in favor of Defencant.

Case Information

1 1.The caption has been amended sua sponte to reflect the City University of New York as the only properly named Defendant.
Claimant short name:
Footnote (claimant name) :

Footnote (defendant name) :
The caption has been amended sua sponte to reflect the City University of New York as the only properly named Defendant.
Third-party claimant(s):

Third-party defendant(s):

Claim number(s):
Motion number(s):

Cross-motion number(s):

Claimant’s attorney:
Defendant’s attorney:
BY: Gwendolyn Hatcher, Esq.Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
December 27, 2006

Official citation:

Appellate results:

See also (multicaptioned case)

This is a claim to recover monies that were withheld from Claimant’s New York State tax refunds and paid to the College of Staten Island
(hereinafter “the College”). In his Claim, Claimant alleged that the College never obtained a judgment against him and therefore was not entitled to tax offset.
At trial, Claimant Peter Onitiri, appearing pro se, testified that he began taking courses at the College in 1982 and continued as a student there until 1984 when he was academically dismissed. In 1985, he applied for readmission but was denied. At the time of his 1985 application, however, he had also applied for TAP and Pell education grants. In response, he was told that he had an outstanding balance on a loan processed through the Adelphia Bank for money owed to the Berk Trade School and that this loan would have to be repaid before he could receive any other education grants or loans.
In 1993, the College took Claimant to court. Claimant testified that the action was to obtain repayment of the Adelphia loan, although, as noted below, the defense witnesses described it differently. The matter went to arbitration and there was a finding in favor of Claimant (Defendant in that action) (Exhibit 1 [arbitrator's October 8, 1993 decision]). Despite this determination, Claimant stated, the College proceeded with its action in New York City Civil Court of New York County, seeking a trial before a Justice Dankberg. According to Claimant, the action was dismissed in 1994, after a hearing in which it was ruled that the arbitration had been binding. On cross-examination, however Claimant acknowledged that he had appeared before Judge Dankberg on August 19, 1994 for trial in the action, and he also acknowledged that he had completed a Notice of Appeal, dated March 23, 1995 (Exhibit 11), to appeal from a judgment that had been issued by Judge Dankberg on August 19, 1994.
Subsequently, in April 1995, Claimant received a communication (Exhibits 3 and C) from Charles A. Petitto, Esq., attorney for the College. The cover sheet of that communication was captioned “Notice of Settlement” and advised that the proposed judgment which was attached would be submitted to Judge Dankberg on October 17, 1994 at 9:30 a.m. The judgment, which directed Claimant to pay the College $5,175.24, with interest from February 19, 1985, had been signed by the judge on April 10, 1995, with the following handwritten notation: “This document is intended to be a duplicate of an order which was signed several months ago & is presently missing from the files of the Civil Court.” Claimant testified that he did not receive the communication from Mr. Petitto until the spring of 1995 and that prior to that time, he had not been aware that such a judgment existed.
Still later, sometime in the fall of 1995, Claimant received a judgment sheet showing that the amount of $10,325.24 was owed. This figure incorporated the $5,175.24 principal, plus interest of $4,735.00 and various fees (Exhibit 4). The judgment sheet had originally been dated October 4, 1994 but (as with the judgment signed by Judge Dankberg) it carried a later stamp, this time October 3, 1995. It was Claimant’s testimony that he received the judgment sheet for the first time sometime after that date.
Claimant also testified that subsequently the New York State tax refunds to which he was entitled had been wrongfully paid to the College. As proof, Claimant submitted Notices of Claim against his tax refunds that were issued by the New York State Department of Taxation and Finance for the years 2002, 2003, and 2004 (Exhibits 15, 13, 14). The amounts that were withheld from Claimant and paid to Defendant for those years were $1,383.00, $697.00, and $1,361.00, respectively.
Harold Birn, an attorney from the law firm of LeSchack & Grodensky, P.C., which represented Defendant in the suit against Claimant, testified for Defendant.
It was Birn’s testimony that the judgment in question had nothing to do with the Adelphia loan but, rather, was for unpaid tuition for courses taken at the College of Staten Island. The litigation had been initiated in 1987. A default judgment against Claimant was entered on May 12, 1989 but subsequently vacated. The matter was then referred to arbitration, with - as noted above - a decision in favor of Claimant on October 8, 1993. According to Birn, the College then applied for, and obtained, a trial de novo. Trial was held before Judge Dankberg on August 19, 1994, and he ruled in favor of the College. Birn stated that the order of judgment (Exhibits 3 & C) was prepared by his office at the direction of Judge Dankberg, and it was signed (apparently for the second time) in April 1995. Birn further stated that payments totaling $4,732.00
had been received as a result of the tax offset.
Also testifying for Defendant was Michael D. Baybusky, an employee of the College whose duties include collecting tuition and fees and processing student refunds. He stated that he is familiar with Claimant, and he confirmed that the sum of $5,032 had been collected against Claimant’s debt after it was assigned to the law firm for collection. Baybusky stated that as a general proposition, if a student has not paid tuition for the past semester, he is not allowed to continue taking classes.
At the conclusion of Claimant’s proof, counsel for Defendant moved for dismissal of the Claim on the ground that Claimant failed to prove a prima facie case entitling him to recover damages from Defendant. At the time the Court reserved, but now grants the motion. Despite his testimony, Claimant’s own exhibits establish that Defendant did secure a judgment against him and, thus, that the withholding of his tax refunds was lawful. Although the Court accepts that Claimant may have believed the arbitration proceeding was binding and that the arbitration and August 19, 1994 trial related to the Adelphia loan, there was no evidence that either was the case. All exhibits relating to the judgment on which the tax offset was based reference the same action: The City University of New York, College of Staten Island v Peter Onitiri, Index No. 130816, Civil Court, County of New York. Claimant has failed to prove by a preponderance of the credible evidence that he is entitled to recover any of the sums that have been paid to Defendant as a result of the judgment in that action. Accordingly, Defendant’s motion to dismiss, made at the conclusion of Claimant’s proof, is granted, and Claim No. 106959 is dismissed.
Let judgment be entered accordingly.

December 27, 2006
Albany, New York

Judge of the Court of Claims

[2]. The College of Staten Island is one of the senior colleges of the City University of New York, and the Court of Claims has jurisdiction to hear claims against it (Education Law §6224.4).
[3]. The attorney who worked on the case at that time, Charles A. Petitto, was no longer at the firm at the time of trial.
[4]. This figure includes the amounts that Claimant testified were obtained from his tax returns for the tax years 2002 to 2004, plus a payment of $1,291.00 for the tax year 2001 (paid May 23, 2002).