New York State Court of Claims

New York State Court of Claims

SHERMAN v. THE STATE OF NEW YORK, #2009-036-539, , Motion No. M-76485


Case Information

Claimant short name:
Footnote (claimant name) :

THE STATE OF NEW YORK1 1. The caption has been amended sua sponte to reflect the only proper defendant.
Footnote (defendant name) :

Third-party claimant(s):

Third-party defendant(s):

Claim number(s):

Motion number(s):
Cross-motion number(s):

Claimant’s attorney:
KOEHLER & ISAACS, LLPBy: Mathew Paulose Jr., Esq.
Defendant’s attorney:
By: Gwendolyn Hatcher, Esq. Assistant Attorney General
Third-party defendant’s attorney:

Signature date:
August 26, 2009
New York

Official citation:

Appellate results:

See also (multicaptioned case)


In this action, in which claimant, a former student at SUNY Downstate Medical Center (“Downstate”), alleges the State breached an implied contract to provide him with certain services, claimant moves for leave to file a late claim shortly before a six-year statute of limitations expires.[2] The proposed claim alleges that claimant was a medical student at Downstate until August 5, 2003, at which time he was dismissed. Claimant asserts that under the terms of the Student Handbook, defendant promised to provide to claimant the services of a professional committee which allegedly would provide him with certain benefits, including informing students of course requirements and evaluation procedures. Claimant quotes the Student Handbook as providing that “courses are urged to submit narrative comments along with letter grades and to discuss the evaluation directly with the student,” and “each course should provide students with advice about their academic standing in the course, to detect academic difficulties prior to the final grade.” Claimant alleges that defendant failed to do this in breach of its obligation to do so. He further alleges that the Student Handbook, incorporating NYS Education Law § 224-a pertaining to a student’s exercise of religious beliefs, obligates defendant to take “No adverse or prejudicial effects” because claimant “avail[ed] himself of the provisions of this section.” Claimant alleges defendant breached this provision in that “adverse action” was taken against him “because he took time off for his religious beliefs, specifically because he took days off for Sabbath and Yom Kippur.” Claimant’s proposed claim for all these counts seeks damages in the amount of $150,000. Defendant opposes claimant’s application on grounds that the claim lacks merit, that defendant did not have notice of claimant’s complaint in 2003 (although claimant alleges it did) and that claimant has no reasonable excuse for delaying in filing his claim for more than five years.
Court of Claims Act § 10(6) grants the court the discretion to allow the filing of a late claim upon consideration of certain factors, including whether claimant’s delay in proceeding against the State is excusable, whether the State had timely notice of and the opportunity to investigate the pertinent allegations, whether the State would suffer substantial prejudice from an order allowing late filing, whether the proposed claim appears meritorious and whether claimant has an alternate remedy. The most important factor under § 10 (6) of the Court of Claims Act is that the court must assess whether the proposed claim appears meritorious because “it would be futile to permit the filing of a legally deficient claim which would be subject to immediate dismissal, even if the other factors tend to favor the granting of the request [to file a late claim].” See Prusack v State of New York, 117 AD2d 729, 730 (2d Dept 1986) . The court concludes claimant has not alleged a viable cause of action that appears meritorious and, accordingly, the court denies claimant’s motion.

Undoubtedly recognizing that claimant may not assert a claim for being dismissed as a student at the medical school by the administrators at Downstate (see e.g. Matter of Susan M. v New York Law School, 76 NY2d 241, 245 [1990]) (“Strong policy considerations militate against the intervention of courts in controversies relating to an educational institution’s judgment of a student’s academic performance.”); see also Tedeschi v Wagner College, 49 NY2d 652, 658 [1980], claimant attempts to use the Student Handbook to plead breach of an implied contract. Claimant’s effort to circumvent the “strong policy considerations” militating against judicial intervention in a school’s decision to dismiss a student on academic grounds cannot succeed here.

The essential elements in pleading a breach of contract cause of action under New York law are that: (1) the parties made a contract; (2) consideration existed; (3) the plaintiff performed; (4) defendant breached the contract; and (5) the plaintiff suffered damages as a consequence. Robert L. Haig, Commercial Litigation in New York State Courts, § 59:12 (2d ed 2005). In addition, an implied contract claim requires pleading the elements of a breach of contract claim. See Maas v Cornell University, 94 NY2d 87, 94-95 (1999). Claimant’s proposed claim does not plead these elements with sufficient clarity to establish that he has an “apparently meritorious” claim, as he must in order to be allowed to proceed with a late claim. See Matter of Santana v New York State Thruway Authority, 92 Misc 2d 1 (Ct Cl 1977). In particular, it is far from certain that the provisions of the Student Handbook cited by claimant satisfy the element that the parties made an implied contract in this case, as claimant contends, especially given claimant’s failure to attach the Student Handbook as an exhibit in support of his motion. See e.g. Baldridge v State of New York, 293 AD2d 941, 943 (3d Dept 2002) (defendant State University Doctoral Program Manual did not promise to provide a specific service to claimant which would establish a claim for breach of contract).

Even assuming an implied contract between claimant and defendant did exist in August 2003 at the time claimant was dismissed as a student at Downstate, claimant’s proposed claim does not plead facts to demonstrate that claimant himself performed under the contract. He does not allege, for example, that he did what was expected of him as a student at Downstate so that he would not have been dismissed but for Downstate’s failure to provide the services claimant alleges he was promised. Indeed, the evidence provided by claimant in support of this application suggests otherwise. See e.g., letter from Michael Augenbraun, M. D., dated March 20, 2003 and letter from Edmund Bourke, M. D., dated April 2, 2003, both referring to claimant’s alleged forging of a signature on a patient’s records, and claimant’s regretting doing so. Nor does the proposed claim plead that defendant’s alleged breaches of the various provisions of the Student Handbook to which he cites proximately caused the $150,000 in damages to which he claims he is entitled. See Gordon v Dino De Laurentiis Corporation, 141 AD2d 435, 436 (1st Dept 1988) (“In the absence of any allegations of fact showing damage, mere allegations of breach of contract are not sufficient to sustain a complaint, and the pleadings must set forth facts showing the damage upon which the action is based.”); see also Noise In The Attic Productions, Inc. v London Records, 10 AD3d 303, 307 (1st Dept 2004) (stating that it “is consistent with judicial precedent . . . that damage was an essential element of [claimant’s] claim for breach of contract.”). Instead, the proposed claim alleges four claims for breach of implied contract (see infra) and concludes with an allegation in the nature of a “wherefore clause,” (paragraph 6) as follows:
Claimant seeks all contractual claims for relief, including claims of expectation, reliance, and restitution, to be determined at trial, including reimbursement of the fees claimant paid to the school; claimant did not receive what he bargained and paid for. To the extent a sum certain is required, claimant requests, without prejudice, the amount paid to defendants, roughly $150,000.

The fatal weakness of claimant’s proposed claim is best appreciated by analyzing each of the four alleged breaches. As noted, claimant first alleges that “according to the Student Handbook, [defendant] promised to provide to claimant a Professionalism Committee,” which, according to claimant, would consist of nine members who would have various positions and that the “Committee’s mandate, among other responsibilities more fully described in the Handbook, was to report ‘Both positive and negative student actions and behaviors.’” The proposed claim further alleges “When behavior is observed that is not considered to be professional a ‘Professionalism Deficiency Form’ will be submitted.” The proposed claim then alleges that defendant “failed to provide him with such a Committee or such reports or the other mandates required by the Committee.” The proposed claim, however, does not plead that the alleged failure to do these things resulted in claimant’s being dismissed from Downstate or in any other way caused him to be injured.

Claimant’s second proposed breach of an implied contract claim is that “the Handbook states ‘Courses are obligated to inform students of course requirements and evaluation procedures at the beginning of each course,’” which claimant alleges was not done. Once again, however, the proposed claim does not plead that defendant’s failure to do this caused claimant to be dismissed or otherwise injured.

Claimant’s proposed third breach of an implied contract claim alleges “the Handbook states that ‘Courses are urged to submit narrative comments along with letter grades and to discuss the evaluation directly with the student.’” The proposed claim further pleads that the Handbook states that “Each course should provide students with advice about their academic standing in the course, to detect academic difficulties prior to the final grade.” Claimant then alleges defendant “failed to provide such review. Indeed defendants prohibited their own employees from discussing evaluations ‘directly with the student.’ Claimant did not receive what was promised by defendants.” This proposed breach of an implied contract allegation does not plead that if all of this had been done, claimant would not have been dismissed from the school. In other words, the proposed claim does not plead that the alleged breach was the cause of the specific injury which befell claimant.

Finally, claimant’s proposed claim pleads “the Handbook, incorporating Section 224-a of the NY State Education Law [pertaining to religious observance] states that defendants promise to take ‘No adverse or prejudicial effects’ because claimant ‘avail[ed] himself of the provisions of this section.’” Claimant’s proposed claim then alleges “Nevertheless, defendants took adverse action against claimant because he took time off for his religious beliefs, specifically he took days off for Sabbath and Yom Kippur.” This proposed claim does not state what “adverse action” was taken against claimant as a result of his religious observances, nor does it plead that defendant’s alleged breach of this provision was what caused his dismissal or any other injury.

In short, the proposed claim simply fails to plead a causative link between what claimant “seeks” as set forth in paragraph 6 of his proposed claim quoted above and the alleged breaches he specifies.[3] Accordingly, claimant has failed to plead a cognizable breach of contract action. Maas v Cornell University, 94 NY2d at 94-95.

With respect to the issue whether defendant had sufficient timely notice of claimant’s proposed claim, claimant submits an undated letter from claimant addressed to Dean Feigelson; a letter from Michael Augenbraun, M.D., Course Director, Third-Year Clerkship in Medicine, dated March 20, 2003; a letter from Edmund Bourke, M.D., Professor and Interim Chair, dated April 2, 2003; an e-mail from Lorraine Terracina, Ph.D., dated April 9, 2003; an e-mail from claimant to Amal Farag, dated June 12, 2003 and a response thereto, dated June 13, 2003; and a letter from Eugene B. Feigelson, M.D., Senior Vice President for Biomedical Education and Research and Dean, College of Medicine, dated August 5, 2003. Claimant asserts that these documents show that the people involved in claimant’s dismissal by Downstate had “notice of the essential facts on which this claim is based ... and, indeed, conducted a thorough and detailed investigation of the matter.” See Reply Affirmation, ¶ 12. While these documents do relate to claimant’s being dismissed and the investigation conducted by defendant of claimant’s conduct and academic performance, as well as claimant’s request for reconsideration of the administration’s decision to dismiss him, they do not constitute notice by claimant of his claim for an alleged breach of an implied contract, that is, they do not provide notice that defendant’s conduct was being questioned by claimant as a matter of law in a lawsuit. They are insufficient to have put defendant on notice of a legal claim so as to allow defendant to conduct a reasonable investigation of whether claimant might have a viable cause of action against defendant. Given the lengthy time gap between the alleged wrongdoing from March 2003 – August 2003 and claimant’s initiation of this proceeding on March 18, 2009, only a few months shy of the six-year statute of limitations for a breach of contract action, the court concludes that defendant would be substantially prejudiced by the lack of sufficient notice to now conduct an investigation of the myriad questions of fact with potential legal significance raised by claimant in his proposed claim as they might pertain to defendant’s potential legal exposure if this claim were permitted to proceed.[4] See Nicometti v State of New York, 144 AD2d 1036 (4th Dept 1988) (abuse of discretion to permit a claim to proceed after a 33-month delay in serving claim).

Accordingly, the court denies claimant’s motion for leave to file a late claim.

August 26, 2009
New York, New York

Judge of the Court of Claims

[2]. In connection with this motion, the court read and considered the Notice of Motion to File Late Claim, dated March 18, 2009; Affirmation of Mathew Paulose, Jr., dated March 18, 2009, together with exhibits annexed thereto; Affirmation in Opposition, dated May 18, 2009; and Reply to Defendant’s Opposition to Claimant’s Motion to File Late Claim, dated June 10, 2009.
[3]. To the extent paragraph 6 seeks a remedy other than monetary damages, this court has no jurisdiction to grant such relief. Amberge v State of New York, 186 AD2d 962, 963 (3d Dept 1992); see also Psaty v Duryea, 306 NY 413, 417 (1954) (Court of Claims lacks jurisdiction over suit for reimbursement on the basis that it is a suit for traditional equitable relief with the return of money to follow as a consequence).
[4]. Claimant also has offered no explanation, much less a reasonable excuse, for waiting over five years to bring his claim. Rather, claimant simply argues that tendering an excuse for the delay is not a precondition to a court granting permission to file a late claim. See Reply Affirmation, ¶ 13. While an excuse may not be a condition for granting late claim relief, it is one of the factors the court is authorized by statute to take into consideration in deciding whether to exercise its discretion in permitting such a filing. In the court’s view, claimant’s failure to explain his five-year delay further mitigates against granting the relief he requests here, especially where there is substantial prejudice to the defendant because of the delay.