Defendant moves for summary judgment pursuant to CPLR 3212 and Court of Claims
Act § § 9, 10, and 11. Claimant seeks to recover damages for improper
deductions from his paycheck made by or at the behest of the New York State
Higher Education Services Corp. (NYSHESC) to recoup the remaining balance of a
student loan. Defendant argues that this Court lacks subject matter
jurisdiction to hear the claim on several bases asserting that NYSHESC assigned
the loan to the United States Department of Education (DOE) on December 21,
2000, the claim is untimely and that the claim fails to comply with the
pleading requirements of Court of Claims Act § 11. For the reasons which
follow, the motion is granted.
The claimant alleges the following acts or omissions as the basis for his
"I James Belgrave had a Loan of $4000.00 from New York State Higher Education
Services Corporation in 1988. After completing the course at Berk Trade School,
I worked and paid back the Loan $6,742.39 in full (interest included), and by
mistake over-payed it by 4 payments totalling [sic] $224.76. N.Y.S.H.E
S, Corp. claimed that I did not paid back the loan, and start taking money from
my Pay-check wrongfully in the amount of $384.90. Although I sent copies of the
Returned Cancelled checks to them as proof of payment, and 2 letters requesting
the refund of $553.06. N.Y.S.H.E.S. Corp., refused, and continued taking money
from me through U.S. Department of Education until May 2008, while the Case was
still going on in Federal Court at 225 Cadman Plaza, Brooklyn, New York, at
which time on July 17, 2008 His Honorable Judge Jack Weinstein ordered U.S.
Department of Education to refund me all the money which they took from me, and
ordered U.S.D.O.E. to stop taking any money from me any source.
I am bringing this Case against N.Y.S.H.E.S.Corp./N.Y. State, and am asking Your
Honor to order N.Y.S. Higher Education Services Corp./N.Y.State to refund me
$553.06 which N.Y.S.H.E.S. Corp. owe me. Thanking your Honor."
In support of its motion for summary judgment the defendant submits the
affidavit of Joseph M. Catalano who is employed by NYSHESC as its Assistant Vice
President in Collection Default Management. Mr. Catalano states in his
affidavit that the claimant applied for and received two student loans - a
Federal Stafford loan in the amount of $2,625.00 and a Federal Supplemental loan
in the amount of $4,000.00. The loans were made by Chemical Bank and guaranteed
by the defendant NYSHESC. Claimant failed to pay the loans as agreed and
Chemical Bank sought reimbursement from NYSHESC which paid the claim on July
25, 1990 in the amount of $6,721.44. After paying Chemical Bank, NYSHESC
established on its books and records an account due in the sum of $6,721.44. Of
this amount, claimant made payments of $6,237.46. However, only $929.27 of the
amount paid was applied to principal, the remainder being applied to interest
($5,032.01), collection costs ($176.18) and the "SPCA" fee
According to Mr. Catalano's
affidavit and the recalculated ledger card attached thereto, the last payment
credited to the claimant's account with the NYSHESC occurred in 1999 and the
account was thereafter assigned to the DOE on December 21, 2000 (see
defendant's Exhibits C, ¶ 7 and C ). According to Mr. Catalano
claimant owed a balance of $6,479.89, at the time the loan was assigned to the
DOE on December 21, 2000, leaving a zero balance on the books and records of
NYSHESC as of that date.
It is well established that " 'summary judgment is a drastic remedy and
should not be granted where there is any doubt as to the existence of a triable
issue' " (Rotuba Extruders, Inc.v Ceppos
, 46 NY2d 223, 231
"The proponent of a summary judgment motion must make a prima facie showing of
entitlement to judgment as a matter of law, tendering sufficient evidence to
eliminate any material issues of fact from the case" (Winegrad v New York
Univ. Med. Center
, 64 NY2d 851, 853 )
. Once the movant has
made this showing, the burden shifts to the party opposing the motion "to
produce evidentiary proof in admissible form sufficient to establish the
existence of material issues of fact which require a trial of the action"
(Alvarez v Prospect Hospital
, 68 NY2d 320, 324  citing
Zuckerman v City of New York
, 49 NY2d 557, 562 ).
Defendant's first argument in support of dismissal is premised on the contention
that since the jurisdiction of the Court of Claims is limited to actions against
the State, and the claimant's debt was assigned to the DOE in the year 2000,
this Court lacks jurisdiction to hear the matter. However, the claimant is not
suing the DOE in the Court of Claims, he is suing theState of New York, a fact
which brings this matter within the Court's jurisdiction to decide (Court of
Claims Act § 9 ). The defendant did sufficiently establish, however,
that NYSHESC took no money from the claimant's paycheck in 2008 as alleged.
According to Mr. Catalano's affidavit and the recalculated ledger card attached
thereto, the last payment credited to the claimant's account with the NYSHESC
was in 1999 (see defendant's Exhibit C ). Inasmuch as the loan was
assigned to the DOE in the year 2000, the defendant has sufficiently refuted the
claimant's allegations that NYSHESC "continued taking money from me through U.S.
Department of Education until May 2008." Thus, defendant established that it
is not responsible for the deductions from the claimant's paycheck which form
the basis of the claim.
Moreover, to the extent the claim may be construed to state a cause of action
for conversion, the allegation in the claim that money was taken from claimant's
paycheck until May 2008 renders the claim served on September 15, 2008 and filed
on September 17, 2008 untimely (Court of Claims Act § 10 [3-b]).
In opposition to the defendant's motion, the claimant submitted only an unsworn
letter which is insufficient to establish the existence of material issues of
fact requiring a trial (see Alvarez v Prospect Hospital,
supra). Moreover, while the claimant states in this letter that the
defendant did not stop taking money from him until July 17, 2008, the unsworn
allegation is contradicted by the allegations in the claim itself which state
that the last date money was taken from his paycheck was in May 2008.
Based on the foregoing, the defendant's motion for summary judgment is granted
and the claim is dismissed.