Gelin v. Lehman College

254 A.D.2d 119, 679 N.Y.S.2d 12, 1998 N.Y. App. Div. LEXIS 10837

Opinion

Order (denominated order and judgment), Supreme Court, New York County (Lewis Friedman, J.), entered February 4, 1998, which, in an action by plaintiff student against senior colleges of City University for breach of contract, denied plaintiff’s motion for a default judgment and granted defendants’ motion to dismiss the complaint for lack of subject matter jurisdiction, unanimously affirmed, without costs.

The action was properly dismissed for lack of subject matter jurisdiction, Education Law § 6224 (4) conferring exclusive jurisdiction upon the Court of Claims over claims for breach of contract against City University involving its senior colleges (see, Matter of Illickal v Roman, 236 AD2d 247, lv denied 90 NY2d 802), and notwithstanding defendant’s failure to timely answer the complaint, lack of subject matter jurisdiction being a nonwaivable defense that may be raised at any stage of the action (Matter of Fry v Village of Tarry town, 89 NY2d 714, 718). We decline to review plaintiff’s claim of discrimination, which was not pleaded in his complaint and is raised for the first time on appeal.

We note that, in any event, the action would be time-barred. Concur — Milonas, J. P., Rosenberger, Ellerin and Rubin, JJ.