HEBREW INSTITUTE FOR DEAF AND EXCEPTIONAL CHILDREN v. BOARD OF EDUCATION OF CITY OF NEW YORK

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Supreme Court, Appellate Division, Second Department, New York.

HEBREW INSTITUTE FOR DEAF AND EXCEPTIONAL CHILDREN, et al., Respondents, v. BOARD OF EDUCATION OF CITY OF NEW YORK, Appellant, et al., Defendant.

Decided: October 14, 2003

ANITA R. FLORIO, J.P., SONDRA MILLER, LEO F. McGINITY and THOMAS A. ADAMS, JJ. Michael A. Cardozo, Corporation Counsel, New York, N.Y. (Leonard Koerner, Ronald E. Sternberg, and Chlarens Orsland of counsel), for appellant. Leon Brickman, Brooklyn, NY, for respondents.

In an action, inter alia, for a judgment declaring that the defendant Board of Education of the City of New York is not entitled to recoup payments for special education programs provided by the plaintiffs for the years 1991 through 1995, and to recover any amounts unlawfully recouped, the defendant Board of Education of the City of New York appeals from a judgment of the Supreme Court, Kings County (M. Garson, J.), entered June 11, 2002, which, upon an order of the same court dated May 23, 2002, granting the plaintiffs' motion for summary judgment and denying its cross motion for partial summary judgment on the issue of damages, is in favor of the plaintiff Hebrew Institute for the Deaf and Exceptional Children and against it in the principal sum of $162,847, is in favor of the plaintiff Ocean Parkway Developmental Center, Inc., and against it in the principal sum of $180,000, is in favor of the plaintiff East River Child Development Center and against it in the principal sum of $246,109.95, is in favor of the plaintiff Special Sprouts, Inc., and against it in the principal sum of $67,573, and is in favor of the plaintiff Sunshine Developmental School, Inc., and against it in the principal sum of $93,074.

ORDERED that the judgment is affirmed, with costs.

In a prior decision and order, this court granted that branch of the plaintiffs' motion which was for summary judgment on the issue of the appellant's liability, determined that the appellant improperly recouped tuition payments from the plaintiffs in the years 1991 through 1995 based upon an illegal enrollment and attendance audit, remitted the matter to the Supreme Court, Kings County, for an assessment of the amounts unlawfully recouped, and determined that the plaintiffs were entitled to recover all sums unlawfully recouped (see Hebrew Inst. for Deaf & Exceptional Children v. Bd. of Educ., 290 A.D.2d 414, 736 N.Y.S.2d 75).

Upon remittitur, the appellant claimed it was entitled to recoupment from each of the plaintiffs, except Hebrew Institute for the Deaf and Exceptional Children, in different amounts, based upon a new theory.   It claimed those recoupments as a setoff against amounts demanded by the plaintiffs.

The appellant concedes that those setoffs were not raised in its answer.   Moreover, this theory was not raised in opposition to the plaintiffs' motion for summary judgment previously ruled upon by this court.   The appellant did not move for leave to amend its answer to assert those setoffs.   Accordingly, the question of whether those setoffs should be applied is not properly before this court (see Haller v. Lopane, 305 A.D.2d 370, 759 N.Y.S.2d 504;   Green Acres Assoc's. v. Pergament Distribs., 143 A.D.2d 974, 533 N.Y.S.2d 583).   Having charted its course, the appellant cannot seek to change it at this late date.

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