Opinion
February 16, 1978
Appeal from the County Court of Westchester County, VINCENT GURAHIAN, J.
William D. Sporborg, Jr., for appellant.
Murray Steyer and Marvin S. Fink for respondent.
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 Educ. 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 N.Y.2d 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 N.Y.2d 283; Matter of Brown v Union Free School Dist. No. 8, 59 A.D.2d 761).
Concur: FARLEY, P.J., PITTONI and SILBERMAN, JJ.