This is defendants’ pre-answer motion to dismiss the claim for lack of
jurisdiction. Although claimant, proceeding pro se, has not submitted
opposition papers, the court finds that defendant CUNY has not met its burden of
demonstrating lack of jurisdiction and the motion is denied as to that
defendant. The court grants the motion to dismiss the claim against the State
of New York as the claim does not state a cause of action against the State.
All references herein to “defendant” are to CUNY.
The claim, filed June 16, 2006 and served June 23 and 26, 2006, alleges
claimant’s tuition was miscalculated for the Fall 2004 and Spring 2005
semesters at Baruch College; specifically, that she was charged the non-State
resident rate despite having been a resident of New York State. Although the
claim alleges an accrual date of May 18, 2006, defendant submits a letter to
claimant from CUNY’s Office of the General Counsel and Vice Chancellor for
Legal Affairs, dated January 24, 2006, advising that claimant’s appeal had
been denied and that the letter constituted a “final determination”
(Exhibit “B” to Notice of Motion). Defendant uses that letter to
support its argument that the “claim was served on the Attorney
General’s Office on June 26, 2006, and on the City University on June 23,
2006 approximately 6 months 
from the final
determination letter dated January 24, 2006 and not within the statutory 90
days” (Affirmation in Support, ¶ 6).
What defendant’s submission overlooks is that this is not a claim for
personal injury or property damage, to which a 90-day limit applies (Court of
Claims Act § 10), but rather a claim for “money had and received .
. . [that] states a legal cause of action for money damages founded upon an
implied in law contract” (Parsa v State of New York, 64 NY2d 143,
149 ) for which the applicable limitation period is six months, not 90
days, from accrual (Court of Claims Act § 10; see also First National
City Bank v City of New York Finance Administration, 36 NY2d 87, 93 ).
Thus, defendant’s argument that the court lacks jurisdiction because the
claim was not served and filed within 90 days of accrual is simply wrong.
Next, after arguing that the claim was untimely interposed because it was
served and filed more than 90 days from January 24, 2006, defendant contends
that “in actuality the claim’s date of accrual is the first day of
classes in September, 2004 for Fall, 2004 and the first day of classes for
Spring, 2005” (Affirmation in Support, ¶ 10). The assertion that the
proper accrual date may be some date other than when claimant received the
letter in January 2006 may well be correct, but the facts necessary to make such
a finding are not before the court. Based on the letter from CUNY counsel, it
appears that there is some sort of procedure to review such tuition
determinations, including appeals, and that the determination that claimant
disputes was not considered “final” until January 2006. Whether
claimant was required to exhaust whatever administrative remedy applied in order
for it to be determined that her claim “accrued” within the meaning
of the Court of Claims Act (which, as defendant notes, requires a finding that
damages were ascertainable) cannot be determined based on the limited
submissions on this motion.
Accordingly, defendant has not met its burden on this pre-answer motion to
demonstrate that the court lacks jurisdiction and the motion must be, and hereby
is, denied with respect to CUNY. The motion is granted, as noted, with respect
to the State of New York and also with respect to “Baruch College –
Zicklin School of Business,” which is not a distinct legal entity but
rather part of CUNY. Defendant shall serve its answer within 40 days of the
filing date hereof.