Baxter v. Columbia University

72 A.D.3d 558, 898 N.Y.S.2d 456

Opinion

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.

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.

* The applicable six-year statute of limitations (CPLR 213) has long since expired on all of plaintiffs claims, whether as to breach of contract, fraud or deceptive business practices, since plaintiff did not commence this action until more than 13 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. Concur—Tom, J.P., Mazzarelli, Acosta, DeGrasse and Richter, JJ.

Columbia has submitted a responding brief, even though plaintiff has failed to pursue a purported appeal from the judgment (same court and Justice), entered December 5, 2008, dismissing the complaint against that party defendant.