Petitioners, Respondents. Petitioners Strum, Beer and Balsam ( Petitioners ) individually and on behalf of all others similarly NATURE OF THE ACTION

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1 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF BROOME SARA STRUM (formerly KAGEL), LAUREN BEER and RAQUEL BALSAM, individually and on behalf of all others similarly situated, Petitioners, -against- THE STATE UNIVERSITY OF NEW YORK; THE BOARD OF TRUSTEES OF THE STATE UNIVERSITY OF NEW YORK; THE CHANCELLOR OF THE STATE UNIVERSITY OF NEW YORK, THE SENIOR VICE CHANCELLOR OF THE STATE UNIVERSITY OF NEW YORK, THE STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, THE PRESIDENT OF THE STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, THE VICE PRESIDENT OF ADMINISTRATION OF THE STATE UNIVERSITY OF NEW YORK AT BINGHAMTON, and John/Jane Does 1-10, INDEX NO.: 2011/ VERIFIED PETITION DATE INDEX NUMBER PURCHASED: 01/07/2011 Respondents. Petitioners Strum, Beer and Balsam ( Petitioners ) individually and on behalf of all others similarly situated, allege: NATURE OF THE ACTION 1. The State University of New York ( SUNY ) historically has charged tuition to New York State residents at a rate that is approximately half of the rate charged to students who are not residents of New York State. But in 2002, the New York State legislature enacted a law requiring SUNY to charge tuition to certain non-residents at a rate no greater than that charged to residents. Generally speaking, this requirement applies to any student who, although resident outside of New York State, nonetheless attended and graduated from high school within New York State. The 1

2 Petitioners (New Jersey residents at the time of the application to SUNY) all attended Binghamton University, part of the SUNY system, after having graduated from a New York State high school, but Respondents disregarded their statutory obligations and charged them tuition at rates nearly twice that charged to New York State residents. 2. Petitioners had no idea that they were entitled to pay tuition at the resident rate until after they finished attending SUNY Binghamton the reason being that Respondents have engaged in a persistent pattern of deceptive and misleading conduct designed to obfuscate the ability of applicants to discover the rule requiring SUNY to charge the resident tuition rate to this particular category of non-residents. Indeed, SUNY has affirmatively misrepresented these students rights to be charged less in tuition. 3. To remedy this blatant injustice, Petitioners bring this action on behalf of themselves individually and on behalf of the class of persons who similarly have been wrongfully overcharged by Respondents. This Petition seeks a refund of all such overcharged tuition and damages resulting from Respondents unfair and deceptive practices and unjust enrichment, along with attorneys fees and other costs and disbursements. THE PARTIES 4. Petitioner Sara Strum is an individual residing in Silver Spring, Maryland and is a former student of SUNY. 5. Petitioner Lauren Beer is an individual residing in East Brunswick, New Jersey and is a former student of SUNY. 6. Petitioner Raquel Balsam is an individual residing in East Brunswick, NJ and is a former student of SUNY. 7. Upon information and belief, Respondent SUNY is a corporation created by New York 2

3 Education Law 352. Among other things, Respondent SUNY is responsible for the planning, supervision and administration of facilities and programs approved by the Board of Regents of New York (currently as described in New York Education Law 237). 8. Upon information and belief, Respondent SUNY is statutorily charged with providing for higher education supported in whole or in part with state moneys in accordance with the provisions of New York Education Law 358. Upon information and belief, Respondent SUNY s statutorily mandated obligations include the implementation of statutorily mandated rules for charging tuition to SUNY students, including the rules prescribed for tuition charges to students who are not residents of New York State. 9. Upon information and belief, Respondent SUNY consists of the four university centers at Albany, Binghamton, Buffalo and Stony Brook, the designated colleges of arts and sciences at Brockport, Buffalo, Cortland, Fredonia, Geneseo, New Paltz, Old Westbury, Oneonta, Oswego, Plattsburgh, Potsdam and Purchase, empire state college, the agricultural and technical colleges at Alfred, Canton, Cobleskill, Delhi, Farmingdale and Morrisville, downstate medical center, upstate medical center, the college of optometry, the college of environmental science and forestry, maritime college, the college of technology at Utica/Rome, the statutory or contract colleges at Cornell university and Alfred university, and such additional universities, colleges and other institutions, facilities and research centers as have been acquired, established, operated or contracted to be operated for the state by the state. The universities, colleges and other facilities described in this paragraph shall hereafter be referred to collectively as SUNY Institutions and each individually as a SUNY Institution. 10. Upon information and belief, Respondent Board of Trustees of the State University of New York (the Board of Trustees ) is the governing body of Respondent SUNY, which exercises all of 3

4 Respondent SUNY s corporate powers. 11. Upon information and belief, Respondent Board of Trustees is responsible for the over-all central administration, supervision and coordination of state-operated institutions and the general supervision and coordination of the statutory or contract colleges in SUNY, including without limitation, the implementation of statutorily mandated rules for charging tuition to SUNY students, including the rules prescribed for tuition charges to students who are not residents of New York State. 12. Upon information and belief, Respondent Board of Trustees consists of seventeen members, currently including Carl Hayden (Chairman), Aminy Audi, Joseph Belluck, Ronald Ehrenberg, Julie Gondar, Stephen Hunt, Eunice A. Lewin, Marshall Lichtman, H. Carl McCall, John Murad, Pedro Noguera, Kenneth O'Brien, Linda Sanford, Carl Spielvogel, Cary Staller, Harvey Wachsman, Gerri Warren-Merrick. The Board of Trustees appoints the officers and staff of SUNY. 13. Upon information and belief, Respondent Chancellor of SUNY (the Chancellor ) is SUNY s chief executive officer, with ultimate oversight responsibility for all operations of SUNY, such as (without limitation) SUNY s compliance with statutorily mandated rules for charging tuition to SUNY students, including the rules prescribed for tuition charges to students who are not residents of New York State. 14. Currently, the Chancellor of SUNY is Nancy Zimpher, who holds the title of Chancellor and Chief Executive Officer and reports to the Board of Trustees. 15. Upon information and belief, Respondent Senior Vice Chancellor of SUNY (the Senior Vice Chancellor ) is the SUNY officer responsible for SUNY s $10 billion annual all-funds budget as well as strategic infrastructure management and overall operations of SUNY. 16. Upon information and belief, Respondent Senior Vice Chancellor s administrative 4

5 responsibilities include oversight of the offices of Business Affairs, Human Resources and Labor Relations; Information Technology; Enrollment and Tuition Management, including the Applications Processing Center; Risk Management, including the University Auditor, Controller, Compliance Officer, and University Police; Legal Affairs; Capital Facilities, including ongoing coordination with the State University Construction Fund, among other things. Included in these responsibilities is implementation of statutorily mandated rules for charging tuition to SUNY students, including the rules prescribed for tuition charges to students who are not residents of New York State. 17. Upon information and belief, currently, the Vice-Chancellor of SUNY is Monica Rimai, who holds the titles of Vice Chancellor and Chief Operating Officer and reports to the Chancellor. 18. Upon information and belief, Respondent State University of New York at Binghamton ( SUNY Binghamton ) is a SUNY Institution consisting of a university center located in Binghamton, New York. 19. Upon information and belief, Respondent President of SUNY Binghamton is the chief executive officer of SUNY Binghamton, with ultimate oversight responsibility for all operations of SUNY Binghamton, such as (without limitation) SUNY Binghamton s compliance with statutorily mandated rules for charging tuition to SUNY students, including the rules prescribed for tuition charges to students who are not residents of New York State. 20. The office of President of SUNY Binghamton currently is held by interim President Dr. C. Peter McGrath, who reports to Respondent Board of Trustees. 21. Upon information and belief, Respondent Vice President of Administration for SUNY Binghamton is the SUNY Binghamton officer responsible for all business functions, budget, physical facilities, construction, police and emergency response/recovery, human resources/payroll, 5

6 training, conference and events support, auxiliary services, compliance and risk management, parking services, information technology, internal audit, affirmative action, campus legal counsel functions, and student accounts. The Vice-President of Administration for SUNY Binghamton also leads the creation and development of University administrative policies and procedures, such as (without limitation) those concerning SUNY Binghamton s compliance with statutorily mandated rules for charging tuition to SUNY students, including the rules prescribed for tuition charges to students who are not residents of New York State. 22. The office of Vice-President of Administration for SUNY Binghamton currently is held by James R. Van Voorst, who reports to the President of SUNY Binghamton. 23. Respondent John/Jane Does are additional SUNY Institutions and/or other entities and/or officers or employees of SUNY Institutions who have responsibility for each such SUNY Institution s implementation of and compliance with SUNY s statutorily mandated rules for charging tuition to SUNY students who are not residents of New York State. The identity of each such John/Jane Doe Respondent is unknown to Petitioners despite due diligence and each of them is united in interest with the Respondents actually named in this Petition because each SUNY Institution is part of SUNY and is subject to the same statutorily mandated rules for charging tuition to SUNY students who are not residents of New York State. JURISDICTION AND VENUE 24. This court has jurisdiction under CPLR 301 and CPLR 7801 et seq. 25. Venue is appropriate in this court under CPLR 503(a) and/or 506(b). FACTUAL ALLEGATIONS 26. Petitioners bring this action on behalf of themselves and a class ( Class ) comprised of any person who qualified for the lower tuition and fees that New York State Education Law section 6

7 355(2)(h)(8) dictates but was overcharged in direct contravention thereof. Facts Specific to Petitioner Strum 27. Petitioner Strum (then Sara Kagel) graduated from high school at the Yeshiva of Flatbush High School in Brooklyn, New York ( Yeshiva High School ) in 2004, after attending and completing four years of high school there. 28. Petitioner Strum resided in New Jersey while she attended Yeshiva High School, which is located in New York. 29. In or around the Summer/Fall of 2003, Petitioner Strum inquired with representatives of SUNY, at New York State college fairs, about how to qualify to be charged the in-state tuition rate for attendance at SUNY Binghamton. 30. In connection with each inquiry, Petitioner Strum explained that she resided in New Jersey but attended and would graduate from high school in New York. 31. In response to each inquiry, Petitioner Strum was told that she could only qualify to pay tuition at the rate charged to in-state residents if she established New York State residency by receiving mail at a home address within New York State for a period in excess of one year and/or by establishing permanent employment within New York State and by filing paperwork necessary to prove these residency factors. Never did any SUNY representatives mention New York State Education Law 355(2)(h)(8) or that SUNY is required to charge the in-state tuition rate to nonresidents who have graduated from New York high schools within five years of application. 32. In or around the Fall/Winter of 2003/2004, Petitioner Strum applied for admission to Binghamton University. 33. Petitioner Strum s application indicated that she was an out of state resident at the time of her application. 7

8 34. Petitioner Strum s application indicated that she graduated from, and attended four years of high school at, Yeshiva High School, located in New York State. 35. Upon information and belief, Yeshiva High School is, and at all relevant times was, an approved high school for purposes of section 355(2)(h)(8). 36. SUNY accepted Petitioner Strum s application and admitted her to Binghamton University, beginning with the 2005 Fall Semester. 37. Petitioner Strum attended Binghamton University for four years and graduated in the Class of Throughout her attendance at Binghamton University, SUNY charged Petitioner Strum the tuition generally applicable to out of state residents. 39. Over the course of her four years attending Binghamton University, Petitioner Strum paid approximately $42,000 in tuition. 40. On information and belief, during the course of Petitioner Strum s four years attending Binghamton University, the tuition charges that SUNY imposed for students who were residents of the State of New York was less than half of the $42,000 that Petitioner Strum paid. Facts Specific to Petitioner Beer 41. Petitioner Beer graduated from high school at the Yeshiva High School in 2005, after attending and completing four years of high school there. 42. Petitioner Beer resided in New Jersey while she attended Yeshiva High School, which is located in New York. 43. In or around the Summer/Fall of 2004, Petitioner Beer applied for admission to Binghamton University. 44. Petitioner Beer s application indicated that she was an out of state resident at the time of her 8

9 application. 45. Petitioner Beer s application indicated that she graduated from, and attended four years of high school at, Yeshiva High School, located in New York State. 46. SUNY accepted Petitioner Beer s application and admitted her to Binghamton University, beginning with the 2005 Fall Semester. 47. Petitioner Beer requested, and was granted, a deferral from SUNY for the school year to study abroad. 48. Petitioner Beer thereafter attended Binghamton University for three years and graduated with the Class of Throughout her attendance at Binghamton University, SUNY charged Petitioner Beer the tuition generally applicable to out of state residents. 50. Over the course of her three years attending Binghamton University, Petitioner Beer paid approximately $38,000 in tuition. 51. On information and belief, during the course of Petitioner Beer s three years attending Binghamton University, the tuition charges that SUNY imposed for students who were residents of the State of New York was less than half of the $38,000 that Petitioner Beer paid. Facts Specific to Petitioner Balsam 52. Petitioner Balsam graduated from high school at the Yeshiva High School in 2003, after attending and completing four years of high school there. 53. Petitioner Balsam resided in New Jersey while she attended Yeshiva High School, which is located in New York. 54. In or around the Summer/Fall of 2002, Petitioner Balsam applied for admission to Binghamton University. 9

10 55. Petitioner Balsam s application indicated that she was an out of state resident at the time of her application. 56. Petitioner Balsam s application indicated that she graduated from, and attended four years of high school at, Yeshiva High School, located in New York State. 57. SUNY accepted Petitioner Balsam s application and admitted her to Binghamton University, beginning with the 2003 Fall Semester. 58. Petitioner Balsam attended Binghamton University for four years and graduated in the Class of Throughout her attendance at Binghamton University, SUNY charged Petitioner Balsam the tuition generally applicable to out of state residents. 60. Over the course of her four years attending Binghamton University, Petitioner Balsam paid approximately $36,000 in tuition. 61. On information and belief, during the course of Petitioner Balsam s four years attending Binghamton University, the tuition charges that SUNY imposed for students who were residents of the State of New York was less than half of the $36,000 that Petitioner Balsam paid. * * * 62. Each of the Petitioners applied to SUNY within five years of receiving their New York State high school diploma. 63. Each of the Petitioners was charged and paid tuition while at Binghamton in excess of the tuition charged to students who were residents of New York State. 64. As such, Respondents illegally charged and collected tuition and fees from Petitioners in direct contradiction to the mandate of New York State Education Law 355(2)(h)(8). 10

11 Applicable Law 65. According to New York State Education Law 355, Respondents were prohibited from charging Petitioners and the Class members more for tuition and fees than it charged to students who were residents of the State of New York. Section 355(2)(h)(8) provides, in pertinent part, as follows: [T]he payment of tuition and fees by any student who is not a resident of New York state... shall be paid at a rate or charge no greater than that imposed for students who are residents of the state if such student... attended an approved New York high school for two or more years, graduated from an approved New York high school and applied for attendance at an institution or educational unit of the state university within five years or receiving a New York state high school diploma. N.Y. Educ. L. 355(2)(h)(8)(i) (emphasis added). 66. SUNY Policy Document Number 7301, entitled, Billing, Refunds, Collection and Writeoffs Policy for Tuition, Fees, and Other Charges, states that Tuition and fees collected in error or in amounts in excess of the required amounts should be refunded. (the Refund Policy ). 67. Section 355(2)(h)(8)(i) imposes a duty upon Respondents, stated in mandatory language, that any student who is an out-of-state resident but attended and graduated from an approved instate high school shall pay tuition and fees at a rate or charge no greater than that imposed for students who are residents of [New York]. 68. Respondents violated this mandate by charging Petitioners and each Class member more than double the amount it imposed upon in-state residents during the relevant periods. As a result, Petitioners and the Class members were and are due refunds in an amounts to be determined but believed to be in excess of half of any tuition amounts that Petitioners and each Class member paid to Respondents. 11

12 Respondents Misleading and Deceptive Practices 69. Upon information and belief, Respondents have engaged in a campaign of misleading and deceptive conduct intended and designed to, and/or having the effect of, misleading the consuming public about Respondents obligations to charge out-of-state students who graduated from New York State high schools (and who otherwise meet the criteria set forth in New York State Education Law 355(2)(h)(8)) tuition at rates no higher than those charged to residents of New York State. 70. As stated above, upon Petitioner Strum s inquiries, representatives of SUNY told Petitioner Strum that she could only qualify to pay tuition at the rate charged to in-state residents if she established New York State residency by receiving mail at a home address within New York State for a period in excess of one year and/or by establishing permanent employment within New York State and by filing paperwork necessary to prove these residency factors. None of the SUNY representatives ever mentioned New York State Education Law 355(2)(h)(8) or that SUNY is required to charge the in-state tuition rate to non-residents who have graduated from New York high schools within five years of application. 71. Recently, in response to an inquiry to SUNY regarding non-resident tuition under New York Education Law 355(2)(h)(8), via to an address provided on SUNY s website for tuition inquiries (AskSUNY@SUNY.edu), SUNY s Recruitment Response Center in Albany, stated as follows: Thank you for your inquiry. SUNY campuses make decisions about residency. Typically, you are only considered a NY State resident if you will have lived in New York for at least 12 months prior to the beginning of your program at SUNY. I have never heard of this information. If any exception to this is granted, it would be granted by the campus to which you are applying, so you may contact them for more information. I hope this information has been helpful to you. John 12

13 Recruitment Response Center State University of New York State University Plaza Albany, NY Phone: (A true and correct copy of the foregoing is annexed hereto as Exhibit A (emphasis added).) 72. Upon information and belief, SUNY s published policies and procedures, including as posted on the internet, fail to advise that non-resident applicants are entitled to be charged no more than the rate charged to residents of New York State if such non-resident applicants satisfy the requirements of New York State Education Law 355(2)(h)(8). 73. The main page of SUNY s website dedicated to explaining tuition and fees ( ) distinguishes between tuition rates charged to New York State Residents and tuition rates charged to Out-of-State Residents. (A true and correct copy of this webpage as it existed on January 3, 2011 is annexed hereto as Exhibit B.) That page does not mention Education Law 355(2)(h)(8) or SUNY s statutory obligation to charge Out-of-State Residents no more for tuition than that charged to New York State Residents pursuant to Education Law 355(2)(h)(8). A footnote next to the heading for Out-of-State Residents refers to a link to more information about residency status ; that footnote fails to note that Education Law 355(2)(h)(8) expressly applies only to non-residents and not to New York State Residents. 74. Further, following the residency status footnote link leads to a webpage entitled Residency. ( (A copy of this webpage as it existed on January 3, 2011 is annexed hereto as Exhibit C.) While the page acknowledges the significant difference between resident and non-resident tuition rates, and admits that the requirements can be complex, the page also fails to mention New York State Education Law 355(2)(h)(8) or SUNY s statutory obligation to charge Out-of-State Residents no more for tuition 13

14 than that charged to New York State Residents pursuant to Education Law 355(2)(h)(8). Instead, the page describes residency as the equivalent of domicile in New York State for no less than twelve months. The page mentions exceptions to the domicile rule, for Military Personnel and Immigrant, Non-Immigrant, and Undocumented Students. Under the latter exception, the page does say that Undocumented Students who attend for at least two years and graduate from a New York high school may be eligible for resident tuition ; however, the Glossary of Terms immediately below that exception defines Undocumented Students as [s]tudents unable to document their lawful immigration status in the United States. In other words, the exception, as defined, applies exclusively to immigrants from other countries. 75. Similarly, SUNY's current application for admission explains that the tuition exception for New York high school graduates applies to non-us citizens. (A true and correct copy of SUNY s current application for admission is annexed hereto as Exhibit D (see page 3, regarding Questions 10a and 10b).) 76. SUNY's Application for Residency for Tuition Billing Purposes (a true and correct copy of which is attached hereto as Exhibit E and also can be found at makes no reference to New York Education Law 355(2)(h)(8) explicitly or implicitly. In fact, it requires applicants to affirm under oath that they are a bona fide legal Resident domiciled in the State of New York and that I understand that providing false information knowingly will disqualify me from consideration for New York State residency status in order to complete the form. In other words, if Section 355(2)(h)(8) were governed by the Residency Policy, as Respondents have said in response to Petitioners refund requests, it would be impossible to qualify for reduced tuition under Section 355(2)(h)(8), because that section expressly applies only to any student who is not a resident of 14

15 New York State. (Emphasis added.) 77. All of the foregoing (e.g., I have never heard of this information (see 71 above)) are illustrative of an ongoing pattern and practice by Respondents of attempting to deceive and mislead the consuming public, or at best to obfuscate or conceal the existence of Respondents obligations and the public's rights under New York Education Law 355(2)(h)(8) in a systematic effort to overcharge students who meet the criteria set forth in Education Law 355(2)(h)(8)), including Petitioners and the members of the Class. 78. As a result of this pattern and practice, Petitioners and the members of the Class have been overcharged for tuition in amounts to be proven. 79. As a result of this pattern and practice, Respondents have been unjustly enriched by virtue of their overcharging of tuition to Petitioners and the members of the Class in amounts to be proven at trial. Exhaustion of Administrative Remedies 80. Petitioners have requested upon several occasions the refund of the amounts of tuition that Respondents over-charged Petitioners, but Respondents have failed and refused to issue the refunds. 81. Upon learning that Respondents had overcharged her for tuition throughout her attendance at SUNY Binghamton, Petitioner Strum began inquiring of Binghamton University about obtaining a refund. Her requests began in October 2009 and continued for several months, both in s, telephone discussions, letters to the Office of University Counsel from Petitioner s counsel, and several phone discussions between Petitioner s counsel and University Counsel. Initially, University Counsel sought to re-cast Petitioner Strum s request as an appeal of a residency determination under SUNY s residency policies. Petitioner s counsel pointed out that that Education Law 355(2)(h)(8) applies only to non-residents (such that any determination of 15

16 residency was irrelevant), and University Counsel thereafter refused to respond to or otherwise rule on Petitioner Strum s request. 82. Eventually, due to University Counsel s failure to respond to Petitioner Strum s request, Petitioner Strum instituted legal proceedings before this court, styled Kagel v. DeFleur, Index No (Hon. Ferris D. Lebous, Justice Presiding) (Sara Strum was then Sara Kagel). As University Counsel had never ruled on Petitioner Strum s request, by decision dated August 18, 2010, the Court dismissed the petition on the grounds that it was premature because the request had not been subject to a final determination. 83. Although the Kagel petition was dismissed as premature, the substance of the case was the subject of oral argument. (A true and correct copy of the transcript of oral argument is annexed hereto as Exhibit F). The Court questioned the legal authority for SUNY s position that its residency policy could somehow alter the statutory mandate of Education Law 355(2)(h)(8). The transcript includes the follows commentary by the Court: That s a direction from the State of New York that says tuition shall be charged at this rate.... [I]f the University charges at a rate contrary to law, they can t say, well, that s our policy, unless you can show me that their policy can supersede the law. (Exhibit F at 11:15-18.) But you ve got to show where the policies, where the SUNY Binghamton or any other State University campus gets the authority to amend State law when it directs this is how tuition shall be charged. It doesn t say except when the University has a contrary policy. (Id. at 11:25-12:4.) And that s where I have my problem because the statute, to me, says that unless we ve got some authority it says the payment of tuition and fees by any student shall be paid at a rate of. It says this is the rate that it will be paid at. It doesn t say except if the University policy is contrary to this. I think it s a little condescending, quite frankly, that the University things that, well, we ll set our own rules for tuition and be damn what the State law says. The law says this is the rate, period. 16

17 Now, I haven t seen any authority from anybody that says to me that by policy, by fiat, by the Divine Right of Kings or the grace of God the State University can decide here is how we re going to charge tuition and I don t care what State law says because this is our policy. That s where I m stuck. (Id. at 14:23-15:16.) 84. Petitioners submit that there is not authority for the proposition that the Court questioned; i.e., Respondents do not have the authority to promulgate policies contrary to Section 355(2)(h)(8). To the contrary, Section 355(2)(h), in its preamble says Respondents are authorized to regulate tuition charges for SUNY Institutions; subdivision (8) expressly requires that [s]uch regulations shall further provide for reduced tuition for members of the Class described herein. 85. On September 13, 2010, University Counsel Barbara Scarlett Westbrook finally issued a final determination to Petitioner, in a letter that said simply, Please be advised that Binghamton University denies your request for tuition reimbursement. (A true and correct copy of this final determination is annexed hereto as Exhibit G.) 86. By to University Counsel Barbara Scarlett Westbrook dated September 7, 2010, Petitioner Balsam requested a refund of the tuition overcharged to her under Education Law 355(2)(h)(8). Ms. Westbrook initially denied the request by also dated September 7, 2010, stating that Your request for refund is not timely under the SUNY and BU residency policy. (A true and correct copy of Petitioner Balsam s request and Ms. Westbrook s response is annexed hereto as Exhibit H.) 87. By letter to University Counsel Barbara Scarlett Westbrook dated September 9, 2010, Petitioner Beer requested a refund of the tuition overcharged to her under New York Education Law 355(2)(h)(8). (A true and correct copy of Petitioner Beer s request is annexed hereto as Exhibit I.) Neither Ms. Westbrook nor any other SUNY representative ever ruled on Petitioner Beer s request. 17

18 88. By letter dated September , Petitioners counsel wrote to Ms. Westbrook to request a ruling on Petitioner Beer s request and to clarify that Ms. Balsam s request was for a refund under SUNY s refund policy, not a request for a residency determination. (A true and correct copy of counsel s September 21, 2010 letter is annexed hereto as Exhibit J.) 89. By letter dated October 7, 2010, Ms. Westbrook responded, saying merely that Petitioners Beer and Balsam should proceed under SUNY s residency policy. (A true and correct copy of Ms. Westbrook s October 7 letter is annexed hereto as Exhibit K.) Even though Petitioners Beer and Balsam were not requesting or appealing residency determinations, and even though Ms. Westbrook herself had ruled on Petitioner Strum s request, Ms. Westbrook referred Petitioners Beer and Balsam to the Residency Appeals Committee referred to in the Residency Policy. 90. In light of Ms. Westbrook s refusal to respond substantively, Petitioners Balsam and Beer (through their counsel) wrote to the Residency Appeals Committee (cc: Barbara Westbrook) on November 1, 2010 to request a final determination on their requests. (A true and correct copy of counsel s November 1 letter to the Residency Appeals Committee is annexed hereto as Exhibit L.) 91. Respondents and the Residency Appeals Committee have failed and refused to rule on Petitioner Beer s refund request. Other than Ms. Westbrook s September 7, , Petitioner Balsam has not received any ruling on her refund request. 92. By letter to the Residency Appeals Committee (cc: Barbara Westbrook) dated December 7, 2010 (a true and correct copy of which is annexed hereto as Exhibit M), Petitioner s counsel advised that, unless some response was issued by December 17, 2010, Petitioners Beer and Balsam would take the Committee s refusal to respond as a denial of their refund requests for purposes of instituting legal proceedings. Neither the Residency Appeals Committee nor any other SUNY representative ever responded to this letter or the refund requests. 18

19 93. In light of Respondents consistent refusal to respond to Petitioners Beer s and Balsam s request, Ms. Westbrook s initial denial of Petitioner Balsam s request, and Ms. Westbrook s denial of Petitioner Strum s refund request on substantially identical facts, any further administrative review would be futile, such that Petitioners Beer and Balsam, along with the members of the Class, are entitled to institute these proceedings at this time. CLASS ACTION ALLEGATIONS 94. Petitioners brings this action as a class action, pursuant to Article 9 of the CPLR, on behalf of the Class consisting of all similarly situated persons. 95. Specifically, the Class consists of any person who: (a) attended an approved New York high school for two or more years or attended an approved New York state program for general equivalency exam preparation; (b) graduated from an approved New York high school or received a general equivalency diploma issued within New York State; (c) applied for attendance at a SUNY Institution within five years of receiving a New York State high school diploma or general equivalency diploma issued within New York State; (d) was not a resident of New York State at the time of his or her payment of tuition and fees, other than a non-immigrant alien within the meaning of paragraph (15) of subsection (a) of section 1101 of title 8 of the United States Code; and (e) while a student of any SUNY Institution, paid fees and tuition at a rate which was greater than that imposed for students who were residents of the state of New York. 96. The Class satisfies the numerosity, commonality, typicality, adequacy, predominance, and superiority requirements of CPLR

20 97. The members of the Class are so numerous that joinder of all members is impracticable. 98. Upon information and belief, SUNY's enrollment is one of the largest in the nation. These enrollment figures do not take into account all of the students who were overcharged but are no longer enrolled as students. 99. A report published by SUNY ( Fast Facts 2010) notes the size of its enrollment and alumni: (a) SUNY estimates that as of December 2010 its alumni total more than two and a half million. (2,589,335). (b) SUNY estimates that as of December 2010, there were approximately 18,000 Out-of- State students enrolled in SUNY Institutions (approximately 4% of SUNY s published enrollment for ). (c) SUNY estimates that in the academic year it awarded 81,789 degrees Without the analysis of further data which is exclusively under the control of the Respondents, the precise number of unique students who make up the Class cannot be ascertained by Petitioners at this point Without the analysis of further data which is exclusively under the control of the Respondents, the amount overcharged for each individual member of the class cannot be ascertained by Petitioners at this point. Tuition and fees vary by SUNY institution, the type of student (full or part-time), the years attended, the duration of attendance, and classification as instate or out-of-state residency. As of August 2009, the difference between tuition charged to New York State residents and the tuition generally charged to non-new York State residents ranges from approximately $200 to $600 per credit-hour (per semester) for part-time students and from approximately $3,000 to $8,000 per year for full-time students Because Petitioners were improperly charged, and paid, tuition and fees in excess of the 20

21 amount charged to students who were residents of the New York State even though they satisfied all of the requirements of New York Educ. Law 355(2)(h)(8), Petitioners' claims are typical of the claims of the members of the Class. The harm suffered by Petitioners and all other Class members was and is caused by the same conduct by Respondents, namely Respondents' wrongful imposition and collection of tuition and fees in excess of the required amounts Petitioners will fairly and adequately represent and protect the interests of the Class, in that Petitioners have no interests antagonistic to, nor in conflict with, the Class. Petitioners have retained competent counsel to further ensure such protection and who intend to prosecute this action vigorously A class action is superior to other available methods for the fair and efficient adjudication of this controversy. The expense and burden of individual litigation, relative to the potential individual damages (see 101 above), make it cost-prohibitive for individual Class members to seek redress for the wrongful conduct alleged in this complaint. If Class treatment of these claims were not available, Respondents would likely continue its wrongful conduct, and would unfairly retain and receive many hundreds of thousands or millions of dollars in unlawfully charged and collected tuition and fees. Further, due to Respondents efforts to hide Section 355(2)(h)(8) (as discussed above), without class action certification and adjudication, most if not all potential class members probably will never even know they were overcharged for tuition (just as they did not know they were entitled to be charged reduced tuition in the first place) Common questions of law and fact exist as to all members of the Class which predominate over any questions that may affect individual Class members. Among the questions of law and fact common to the Class are the following: (a) whether Respondents violated 355(2)(h)(8) of New York Education Law by 21

22 improperly charging and collecting tuition and fees in excess of the required amounts; (b) whether Respondents violated 349 of New York General Business Law by improperly charging and collecting tuition and fees in excess of the required amounts; (c) whether Respondents have been unjustly enriched by improperly charging and collecting tuition and fees in excess of the required amounts The Class is readily definable, and prosecution of this action as a Class action will reduce the possibility of repetitious litigation. Information regarding which students were overcharged, and by how much, is easily ascertained by Respondents. Petitioners knows of no difficulty that will be encountered in the management of this litigation that would preclude its maintenance as a Class action. FIRST CAUSE OF ACTION (Violation of NY Educ. Law 355(2)(h)(8)) 107. Petitioners repeat a reallege the allegations of paragraphs 1 through 106 as though fully set forth herein Petitioners and the Class were entitled to pay tuition and fees in amounts no greater than that imposed for students who were residents of the state as New York Educ. Law 355(2)(h)(8) dictates Respondents had a duty to charge and collect tuition and fees from the Petitioners and the Class in amounts no greater than that imposed for students who were residents of the state as New York Educ. Law 355(2)(h)(8) dictates Petitioners and the Class have been damaged by Respondents' failure to perform this duty, namely, the wrongful imposition, collection and retention of tuition and fees in excess of the required amounts. 22

23 111. Respondents are liable to Petitioners and the Class for damages as a result of its violation of New York Educ. Law 355(2)(h)(8), in amounts to be determined at trial. SECOND CAUSE OF ACTION (Violation of NY General Business Law 349) 112. Petitioners repeat a reallege the allegations of paragraphs 1 through 111 as though fully set forth herein Respondents' conduct in imposing and collecting tuition and fees in excess of the required amounts constitute materially deceptive acts or practices in the conduct of business, trade, or commerce or in the furnishing of services in this State that affect the public interest under 349 of New York General Business Law Respondents misleading and deceptive acts and practices (detailed above) were consumeroriented and misleading in a material way because those acts and practices hid from the consuming public Respondents obligations, and the consuming public s corresponding rights, under Section 355(2)(h)(8) Petitioners and the Class have been injured by and as a result of Respondents misleading and deceptive conduct Respondents is liable for actual damages sustained by plaintiff and the Class as allowable under 349 of New York General Business Law, in amounts to be determined at trial. To the extent Respondents conduct is found to be willful or knowing, Petitioners are entitled to enhanced damages under Section 349(h) Additionally, Respondents should be enjoined from continuing to engage in their wrongful violation of 349 of New York General Business Law. 23

24 THIRD CAUSE OF ACTION (Unjust enrichment) 118. Petitioners repeat a reallege the allegations of paragraphs 1 through 115 as though fully set forth herein Respondents have been unjustly enriched at the expense of and to the detriment of Petitioners and the Class by wrongfully imposing, collecting and retaining tuition and fees in excess of the required amounts under the facts and circumstances alleged in this complaint. Respondents' retention of the monies wrongfully collected from Petitioners and the Class violates fundamental principles of justice, equity, and good conscience Petitioners and the Class are entitled to recover from Respondents all amounts as unjust enrichment that have been wrongfully and improperly collected and retained by Respondents, and Respondents should be required to disgorge the monies that it has unjustly obtained. WHEREFORE, Petitioners, on behalf of themselves and the Class, prays for an order and judgment against Respondents, as follows: (a) Certifying this case as a class action pursuant to the provisions of Article 9 of the CPLR, with Petitioners certified as representatives of the Class; (b) Directing Respondents, and their appropriate officials, to refund and disgorge tuition and fees illegally charged to, and retained from, each of the Petitioners and members of the Class in amounts to be determined at trial, together with interest from the time of payment; (c) Ordering Respondents to pay to each of the Petitioners and members of the Class their actual or statutory damages pursuant to General Business Law 349 in amounts to be proven at trial; (d) Ordering Respondents to pay to each of the Petitioners and members of the Class their 24

25 actual damages resulting from Respondents unjust enrichment; (e) Directing Respondents, and their appropriate officials, to cease imposing and collecting tuition and fees in excess of the required amounts; (f) Awarding to Petitioners and the Class the costs and disbursements incurred in connection with this action, including attorneys' fees and expenses; and (g) Granting such other relief as the court deems proper. Dated: January 7, 2011, New York, NY ALL COUNSEL P.C. By: Andrew L. Lee Attorneys for Petitioners Andrew L. Lee Peter Mustalish ALL COUNSEL P.C. 405 Park Avenue Suite 1700 New York, NY (212)

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30 T h e S t a t e U n i v e r s i t y o f N e w Y o r k SUNY APPLICATION 2011 Adirondack Albany Alfred State NYS Ceramics at Alfred Binghamton Brockport Broome Buffalo State Buffalo Canton Cayuga Clinton Cobleskill Columbia - Greene NYS Colleges at Cornell Corning Cortland Delhi Downstate Medical Dutchess Empire State ESF Erie Farmingdale FIT Finger Lakes Fredonia Fulton - Montgomery Genesee Geneseo Herkimer Hudson Valley Jamestown Jefferson Maritime Mohawk Valley Monroe Morrisville Nassau New Paltz Niagara North Country Old Westbury Oneonta Onondaga Optometry Orange Oswego Plattsburgh Potsdam Purchase Rockland Schenectady Stony Brook Suffolk Sullivan Apply to your SUNY. SUNYIT Tompkins Cortland Ulster Upstate Medical Westchester

31 SUNY The State University of New York Application2011 The SUNY Application Services Center (ASC) prefers the online version of SUNY s application...and so do our applicants! For 2010, 96% of our applicants chose to apply online. The online application can be found at and allows you to apply to SUNY campuses quickly and efficiently. The paper application can be found on pages A1-A8 of this book.!!!! Why Apply Online? It's Fast! Your application will reach the admissions office(s) faster. The online application is loaded directly into our database. No waiting for mail delivery! It's Easy! Our application receives high marks from our students. It s easy to complete, easy to navigate and guides you the whole way. It s Secure! Your privacy is protected (of course). Your application is password protected to ensure your privacy and the security of your information. Your password also allows you to return again and again to review your data or submit your application to another campus. It's Efficient! You can use our School Counselor form (also available at to communicate with your school counselor about your SUNY application and to request your transcripts all at the same time. If you have any questions about the application process, representatives from SUNY's Recruitment Response Center in Albany are available to assist you Monday through Friday 8:30 a.m. - 4:30 p.m. (EST). They can be reached by phone at or by at asksuny@suny.edu. Callers from outside the U.S. may contact us at apply online Online Application Notes! REMINDER The application is here... student TO DO Complete one application to apply to almost any SUNY school CHECK YOUR MAIL Confirmations will be sent by and regular mail DON T FORGET YOUR FEE It s $50 per school. (Payment is required for processing) TALK TO COUNSELOR Let your Counselor know you applied to SUNY. Request transcript. FOLLOW-UP Check your processing status at: appstatus 2 apply onlinewww.suny.edu/student

32 Applying to SUNY using this Paper Application Step 1: Choose Your Campuses Before beginning your application, decide where you want to apply. You can use this application to apply to 50 of the 64 SUNY campuses. See page A5 for a list. Step 2: Choose Your Majors Before beginning your application, decide which major you wish to pursue at each campus. You can choose only one major at each campus (except Purchase). Most campuses (except FIT, Upstate Medical and many community colleges) will allow you to select undeclared code 0000 as your major, if you are undecided. To see a list of majors available at each campus, see pages 9-15 or visit Step 3: Complete Your Application All Applicants: Complete Questions 1-31 Choosing Campuses Page A5 Payment and Signature Page A6. Non-U.S. Citizens: Complete Questions 1-39 Choosing Campuses Page A5 Payment and Signature Page A6 Transfer Applicants: Complete Questions 1-31 and Choosing Campuses Page A5 Payment and Signature Page A6 Help for specific questions is provided on pages 3 and 4. Step 4: Pay Your Application Fee The fee to process your application is $50 per campus choice. The fee is non-refundable and is independent of an admission decision or decision to withdraw or decline an offer of acceptance. Your application will not be processed until full payment or authorized fee waiver request is received. Payment options are as follows: Credit or Debit Card: To pay by MasterCard or VISA, complete the bottom of page A6. Check (or Money Order): To pay by check, send a single check for the total amount due to the Application Services Center (ASC). Checks must be made payable to SUNY ASC and must be drawn on a U.S. bank. Returned checks will be subject to an additional processing fee of $20. All appeals for refunds of overpayments must be put in writing to the Director of the Application Services Center. Financial Hardship Fee Waivers: If you are a resident of New York State and/or a U.S. citizen, and wish to be considered for an application fee waiver due to financial hardship, you must submit a SUNY Fee Waiver Request Form (available from your school counselor), or an SAT or ACT fee waiver, with this application. You may also be asked to submit supporting documentation. Any form submitted must be signed by your school counselor. Upon review and approval, the ASC will grant a waiver for your first four (4) college choices. Appropriate processing fees for additional SUNY college choices must be submitted with your application. Transfer Student Fee Waivers: Fees for four (4) campus choices will automatically be waived for transfer students graduating with an AA or AS degree from a SUNY or CUNY two-year college and who apply directly to State University four-year campuses for baccalaureate programs. To be eligible you must complete questions Failure to answer those questions will delay processing. EOP Fee Waivers: If you are applying to the Educational Opportunity Program (EOP), the fees for your first four (4) campus choices will be waived, initially. If, upon review of your application, you are found ineligible for EOP, or if your campus choice does not offer EOP, you will be billed for the fee. Appropriate processing fees for additional SUNY campus choices must be submitted with your application. Step 5: Request Your Academic Records Freshman Applicants: Please request one high school transcript per campus choice. If you are a high school student, you must also request that your counselor complete the School Counselor Section of the application on page A6. If you are applying to Binghamton University or the University at Buffalo, you must also contact your testing agency and request that your SAT or ACT scores be sent directly to those campuses. Transfer Applicants: Academic transcripts are required for all colleges you attended, whether or not you received credit. Please contact each college s registrar s office and request that your transcripts be sent directly to each campus choice to which you applied. If you are transferring from another SUNY school, please request a General Education Transcript Addendum be sent with your official transcript. Transfer applicants earning less than the equivalent of one year of study (generally credit hours), should arrange for their former high school to send transcripts directly to the colleges to which they are applying. Step 6: Mail Your Application Package Please mail the completed paper application (six pages), application fee and your high school transcripts (if applicable) to: Application Services Center The State University of New York State University Plaza P.O. Box Albany, NY (If your high school transcripts are not available at the time you mail your application, please have your transcripts forwarded directly to each campus to which you apply.) Step 7: Check Your Application Status Visit to confirm SUNY s receipt of your application. Step 8: Complete Your Supplemental Applications In addition to this application, some campuses may require or recommend a supplemental application, which may include an essay question. Visit to complete those supplemental applications. HELP FOR SPECIFIC QUESTIONS Q. 2 Applicant Social Security Number Your Social Security Number is used to coordinate the collection of information for all your student records. Authority to collect the Social Security Number is granted under Section 355 of the New York Education Law. Your response, however, is voluntary. Q. 10a - 10b Residency Residency affects eligibility for in-state tuition and EOP. Typically, students are considered state residents if their primary domicile (or, if dependent, that of their parents) is in NY for at least 12 months prior to enrollment. Otherwise, students are presumed to be out-of-state residents. Generally, only U.S. citizens (question 9a) and permanent residents are eligible for the NY State tuition rate. However, certain non-u.s. citizens who graduate from a New York high school and meet other requirements may qualify for the resident tuition rate. Please direct your questions concerning NY State residency to the Student Accounts Office at SUNY campuses. Q. 13 Family Income Range Indicate the letter corresponding to your family s gross income, as reported on the federal income tax form. If your parents are separated or divorced, you should report the income of the household in which you reside for most of the year. Your answers here are used for assessing EOP and fee waiver eligibility and will not impact financial aid decisions. A $0-14,999 B 15,000-29,999 C 30,000-44,999 D 45,000-64,999 E 65,000-84,999 F 85, ,999 G 105, ,999 H 125, ,999 J 145, ,999 K 165, ,999 L 185,000+ S T W Your family receives payments from a NY county department of social services (i.e., ADC, AFDC, or public assistance). You live with foster parents who do not provide money for college, nor do your natural parents provide support. You are a ward of the state or a county. Instructions continued on page 4. apply onlinewww.suny.edu/student 3