DECISION ORDER
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).
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; Green Acres Assocd. v. Pergament Distribs., 143 A.D.2d 974) . Having charted its course, the appellant cannot seek to change it at this late date.
FLORIO, J.P., S. MILLER, McGINITY and ADAMS, JJ., concur.