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Baxter v. Columbia University

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


April 22, 2010

BRIAN W. BAXTER, ETC., PLAINTIFF-APPELLANT,
v.
COLUMBIA UNIVERSITY, ET AL., DEFENDANTS-RESPONDENTS.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered October 17, 2008, which granted the motion by defendants Harsh and Citibank to dismiss the complaint as against them, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Mazzarelli, Acosta, DeGrasse, Richter, JJ.

303121/07

This is an action alleging that Columbia University had a policy of steering its students to a certain bank as the preferred lender for student loans*fn1. The applicable six-year statute of limitations (CPLR 213) has long since expired on all of plaintiff's claims, whether as to breach of contract, fraud or deceptive business practices, since plaintiff did not commence this action until more than thirteen years after he last attended Columbia. Although a party may bring a claim for fraud two years after discovery of the fraud (CPLR 213[8]), not only does plaintiff concede that the complaint failed to specify the date of discovery, but such an extension does not apply to constructive fraud (Monaco v New York Univ. Med. Ctr., 213 AD2d 167, 168 [1995], lv denied 86 NY2d 882 [1995]). At best, plaintiff has stated a defectively pleaded claim for constructive, rather than actual, fraud.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.


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