Valhalla Union Free School District v. Somers Central School District , 98 Misc. 2d 365 ( 1978 )

OPINION OF THE COURT

Memorandum.

Order unanimously reversed, without costs, plaintiff’s motion to dismiss defendant’s affirmative defenses granted and defendant’s cross motion to dismiss the complaint is denied.

It is our opinion that a suit to recover the cost of tuition based on subdivision 5 of section 3202 of the Education Law is one to "vindicate a public interest” and is, therefore, not subject to the requirements of subdivision 1 of section 3813 of said law (see Union Free School Dist. No. 6 v New York State Human Rights Appeal Bd., 35 NY2d 371, 380; Amityville Union Free School Dist. v Freeport Union Free School Dist., NYLJ, Dec. 9, 1976, p 14, col 2 [Supreme Ct, Nassau County]; Matter of Bd. of Educ., 17 Ed Dept Rep 2). We are also of the opinion that the complaint, as pleaded states a sufficient cause of action (Matter of Jeter v Ellenville Cent. School Dist., 41 NY2d 283; Matter of Brown v Union Free School Dist. No. 8, 59 AD2d 761).

Concur: Farley, P. J., Pittoni and Silberman, JJ.