Andre' v. Pace University
| Decision Date | 13 May 1994 |
| Citation | 161 Misc.2d 613,618 N.Y.S.2d 975 |
| Parties | , 96 Ed. Law Rep. 192 Marina A. ANDRE, Plaintiff, v. PACE UNIVERSITY, Defendant. Peter BROOME, Plaintiff, v. PACE UNIVERSITY, Defendant. |
| Court | New York City Court |
Robert I. Ruback, New York City, for defendant.
These two small claims cases were consolidated for trial and came before this Court on May 5, 1994.
After trial the Court makes the following findings of fact.
The plaintiffs, Broome and Andre, wanted to take a basic beginners' computer programming course for which there were no prerequisites such as advanced math or science courses. In search of a basic beginners' computer programming course, the plaintiffs obtained the Pace University 1993-1994 Graduate Catalog And Application ["Pace Catalog"] for The School of Computer Science and Information Systems ["Pace Computer School"]. At page 7 of the Pace Catalog the defendant encouraged students without a computer programming background to take courses leading to a Graduate Certificate in Programming.
The Pace Catalog described many courses that were available at the Pace Computer School. At page 21 of the Pace Catalog a basic beginners' computer programming course entitled CS 502--Fundamental Pascal Programming ["Pascal Course"] was described as a "Concentrated orientation course". In addition, at page 128 of the Pace Fall 1993 Class Schedule ["Pace Class Schedule"] it was noted that there were no prerequisites for the Pascal Course.
After reading the foregoing the plaintiffs met with their assigned advisor, Dr. Narayan Murthy, Chairman of the Department of Computer Science at the Pace Computer School. The plaintiffs made it clear that they did not have a strong or even moderate math background and were concerned that the Pascal Course might require advanced math skills. However, Dr. Murthy assured them that the Pascal Course did not require an advanced math background and that with their rudimentary high school math background they could complete the Pascal Course without difficulty.
Based upon the Pascal Course descriptions and upon the advice and reassurances of Dr. Murthy, the plaintiffs decided to apply for admission to the Pace Computer School for the Fall Term 1993 and take the Pascal Course. The cost of the 4 credit, 16 week Pascal Course was $1,655.00 which included tuition of $1,600.00, General Institutional Fee of $45.00 and Installment Plan Fee of $10.00. The plaintiffs were accepted at the Pace Computer School and admitted to the Pascal Course.
The plaintiffs chose to pay for the Pascal Course by using the Pace Installment Plan. The plaintiffs paid defendant $855.00 each for the Pascal Course.
Pace Professor Carroll Zahn was assigned to teach the Pascal Course and the first class took place on September 22, 1993. The second class took place on September 29, 1993 at which time Professor Zahn identified the course textbook as Coopers Revised Condensed Pascal (with more Math and Science) ["Pascal Textbook"] and it cost $30.00. The plaintiffs attended this class and were assigned problem 1-6. The Preface to the Pascal Textbook made it abundantly clear that it was geared for students who were computer science [CS] majors and/or scientists and engineers. The plaintiffs were neither. In fact, they were self-professed beginners. In addition, the Pascal Textbook contained numerous homework problems "intentionally drawn from math and science". These problems were incomprehensible to the plaintiffs and other class members who, unlike the textbook's target audience of computer science majors, scientists and engineers, were poorly equipped to solve them with no more than a rudimentary high school math background.
The third class of the Pascal Course took place on October 6, 1993. The plaintiffs attended this class and informed Professor Zahn that the math required to solve Problem 1-6 was way over their heads and they could not complete their homework. Professor Zahn noted that this problem was, indeed, difficult and instructed them to keep working on it as their next homework assignment. After this third class the plaintiffs contacted the office of their advisor Dr. Murthy, and noting the problems they were having with the Pascal Course and Professor Zahn, they requested a meeting. Notwithstanding the urgency of plaintiffs' request Dr. Murthy did not agree to meet until October 25, 1993, nineteen days later.
The fourth class took place on October 13, 1993. The plaintiffs and other class members still could not solve Problem 1-6 and informed Professor Zahn of their frustration. Professor Zahn spent the entire class period trying to solve Problem 1-6 and failed to do so. His homework assignment to the plaintiffs and the class was to keep working on Problem 1-6.
The fifth class took place on October 20, 1993. The plaintiffs and class members and Professor Zahn were still unable to solve Problem 1-6. At trial Professor Zahn admitted that a student would need more than high school math to complete Problem 1-6. In complete frustration the plaintiffs left the fifth class before its completion and never returned to the Pascal Course. At no time during the five weeks that plaintiffs were attending classes did Professor Zahn hand out a course syllabus.
The next day on October 21, 1993 the plaintiffs filed a formal complaint with Dr. Susan M. Merritt, Dean of the Pace Computer School, wherein they stated that "We are withdrawing from the [Pascal Course] and [Pace Computer School] and demand a full refund for our tuition and books".
On October 25, 1993 the plaintiffs had a meeting with their advisor Dr. Murthy. Dr. Murthy agreed that Professor Zahn had chosen an inappropriate textbook and was not teaching the Pascal Course properly. Dr. Murthy stated, however, that Professor Zahn was a tenured professor and, hence, he would do nothing to interfere with how Professor Zahn was teaching the Pascal Course.
On October 27, 1993 the plaintiffs served on Dr. Merritt and Dr. Murthy a Petition signed by themselves and 23 other members of the Pascal Course raising the same complaints set forth in the plaintiffs' formal complaint filed with Dr. Merritt earlier.
On October 27, 1993 the plaintiffs signed a Pace Change of Schedule form formally withdrawing from the Pascal Course.
On November 1, 1993 the plaintiffs met with Dr. Merritt and Dr. Murthy. At that time Dr. Merritt found the plaintiffs' complaints to be without merit and stated that Professor Zahn was a "good professor". Nonetheless Dr. Merritt did offer a tuition credit and admission to a future session of the Pascal Course taught by someone other than Professor Zahn. The plaintiffs rejected this offer and demanded a full refund of $885 which included the cost of the Pascal Textbook. At this point Dr. Merritt accused the plaintiffs of being "consumers and not students".
On November 2, 1993 Dr. Merritt sent plaintiffs a letter denying their request for a full refund and offering a tuition credit for a "subsequent semester in which another instructor will be teaching CS 502".
Pace asserts that it owes plaintiffs no money because of its Tuition Cancellation Policy ["Pace Cancellation Policy"] which requires students who wish to withdraw from a course to file written notice at the Registrar's Office. If the notice is received prior to the first scheduled class meeting then a complete refund will be available, if after the fifth week of classes 0% refund.
The plaintiffs withdrew after the fifth scheduled class of the Pascal Course. The plaintiffs admitted that they were aware of the Pace Cancellation Policy but believed it to be unfair under the circumstances. They did not receive the Pascal Textbook until after the second class. During the third and fourth classes they were encouraged by Professor Zahn to keep trying to solve the unsolvable Problem 1-6. It was only after the equally unproductive fifth class that they concluded they should withdraw.
The plaintiffs brought their claims to this Small Claims Court for adjudication. In Small Claims Court plaintiffs may sue for money damages up to $2,000 (U.C.C.A. § 1801). [For a history of New York Small Claims Court see Celona v. Celona, N.Y.L.J., March 25, 1994, p. 36, col. 2 (Yonkers Cty. Ct.); Levins v. Bucholtz, 208 Misc. 597, 145 N.Y.S.2d 79, 81-83 (N.Y.A.D.1955); Weiner v. Tel Aviv Car and Limousine Service, Ltd., 141 Misc.2d 339, 533 N.Y.S.2d 372, 373-374 (1988) ].
In the instant action the Court finds that plaintiffs have asserted the following cognizable causes of action against the defendant: (1) breach of contract; (2) rescission based upon (a) want of consideration, (b) failure of consideration, (c) unconscionability and (d) misrepresentations; (3) breach of fiduciary duty; (4) educational malpractice; and (5) violation of N.Y.S. General Business Law § 349 (). The defendant has asserted the defense of its Cancellation Policy and asserted a breach of contract against the plaintiffs.
Dr. Merritt accused plaintiffs of being "consumers and not students". In fact, the plaintiffs are both. Students are consumers of educational services. There is nothing holy or sacred about educational institutions. Colleges and Universities are in the business of marketing and delivering educational services and Degrees to the general public. In New York State caveat venditor has replaced caveat emptor as the guiding principle of consumer transactions including those involving educational services. [See, e.g., James v. SCS Bus. & Tech. Inst., NYLJ, Jan. 15, 1993, at 28, col. 4 (N.Y.Civ., Kings County 1992) (unconscionable education contracts); see generally Note, New York Creates a Private Right of Action to Combat Consumer Fraud: Caveat Venditor, 48 Brooklyn Law Review 509 (1982).]
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