Croce v. St. Joseph's Coll. N.Y., Index No. 610886/2020

CourtUnited States State Supreme Court (New York)
Writing for the CourtCarmen Victoria St. George, J.
Citation73 Misc.3d 632,155 N.Y.S.3d 51
Parties Jennifer CROCE, on behalf of herself and all others similarly situated, Plaintiff, v. ST. JOSEPH'S COLLEGE New York, Defendant.
Decision Date01 October 2021
Docket NumberIndex No. 610886/2020

73 Misc.3d 632
155 N.Y.S.3d 51

Jennifer CROCE, on behalf of herself and all others similarly situated, Plaintiff,
v.
ST. JOSEPH'S COLLEGE New York, Defendant.

Index No. 610886/2020

Supreme Court, Suffolk County, New York.

Decided on October 1, 2021


155 N.Y.S.3d 53

Michael Alexander Tompkins, Esq., Leeds Brown Law, P.C., 1 Old Country Road Suite 347, Carle Place, NY 11514, For the Plaintiff

Dianna D. McCarthy, Esq., Kaufman Borgeest & Ryan LLP, 120 Broadway, 14th Floor, New York, NY 10271, For the Defendant

Carmen Victoria St. George, J.

73 Misc.3d 634

This action arises from the global coronavirus (COVID-19) pandemic of 2020 that caused our way of life to be radically altered. Aside from the terrible toll that the virus has taken on humanity, the virus simultaneously led to the sweeping and sudden closure of businesses and institutions, including higher education institutions such as colleges and universities, and

73 Misc.3d 635

even our courts, in order to stem the tide of person-to-person transmission. Rapid adjustments were made to online platforms so that the business and activities of the world could continue to function to some degree. Generally speaking, colleges and universities ceased providing in-person instruction and advised students to leave campuses in mid-March 2020. The defendant in this action was no exception to that required pivot, in light of the pandemic.

Plaintiff commenced this putative class action suit on August 18, 2020.1 The First Amended Complaint (FAC) alleges three causes of action sounding in breach of contract, unjust enrichment, and conversion. At its core, the plaintiff's first amended complaint seeks to recover compensatory damages, and to disgorge "the ill-gotten gains derived by defendant from its misconduct" allegedly resulting from defendant's implementation of its online only learning program that started on or about March 11, 2020, which is also the date that the defendant confirmed its first case of COVID-19. There is no dispute that the defendant properly implemented its online learning platform in accord with the Governor's Executive Order declaring a state of emergency on March 7, 2020, in response to the pandemic.2 The gravamen of plaintiff's complaint is that she seeks a pro rata refund of tuition and certain fees proportionate to the amount of time that the college was closed to in-person learning and transitioned to online learning on or about March 11, 2020, because "defendant failed to provide the in-person and on-campus services that were bargained for, promised and agreed to" (FAC, 12).

The spring 2020 semester commenced on or about January 21, 2020 and ended on or around May 5, 2020. Accordingly, the last seven to eight weeks of the semester were conducted online. The Court notes that the plaintiff was a senior in the spring 2020 semester, and that she graduated and was awarded a degree in or about May 2020, having satisfactorily completed her studies at defendant's institution of higher learning.

Presently, the defendant seeks dismissal of the entire complaint pursuant to CPLR § 3211 (a)(7). Having been charged with determining this motion, the Court set out

155 N.Y.S.3d 54

to discover whether there is any precedent arising from similar circumstances

73 Misc.3d 636

resulting from the pandemic, and discovered that that there has been no shortage of litigation commenced by college and university students seeking refunds of tuition and fees since the onset of the pandemic that, understandably, led to online learning.

Review of Similarly-Brought Actions Against Colleges and Universities

The opinions reviewed by this Court have been issued by various federal district courts, where it seems that these actions have overwhelmingly been brought.3 The federal district court opinions have generally been issued in connection with motions made pursuant to Federal Rules of Civil Procedure (FRCP) § 12 (b)(6), which is the procedural equivalent of CPLR § 3211 (a)(7) ( DuBois v. Brookdale University Hospital , 6 Misc. 3d 1023[A], 2004 WL 3196952 [Sup. Ct. Kings County 2004] ; see also Hirsch v. Arthur Andersen & Co. , 72 F. 3d 1085, 1092 [2d Cir. 1995] ). Accordingly, this Court is guided by our federal brethren and sistren, who, individually, have painstakingly examined the various complaints filed in the contexts of determining whether the plaintiffs in these many actions have failed to state claims for, inter alia , breach of contract, unjust enrichment, and conversion.

It appears that the outcome as to whether a breach of contract claim as to tuition and/or fees is dismissed is entirely dependent on the specific language used by the various colleges and universities in their catalogs, publications, mission statements, et cetera , as pled in the complaints (see Flatscher v. Manhattan School of Music , ––– F.Supp.3d ––––, 2021 WL 3077500 [S.D.N.Y. July 20, 2021] [plaintiff adequately pled breach of implied contract claim because defendant's own catalogue stating that tuition provides access to the school's facilities, an entire floor of 24-hour practice rooms, and a state-of-the-art facility where students can record a portfolio, access to which was denied due to the pandemic];

73 Misc.3d 637

Hewitt v. Pratt Institute , 2021 WL 2779286 [E.D.N.Y. July 2, 2021] [claim for breach of contract as to tuition dismissed because plaintiffs pointed to promises that are either too general or too caveated to sustain claim; however, plaintiffs sufficiently pled breach of contract claim for fees paid for in-person services such as participation in ceramics, sculpture, and printmaking courses and use of campus facilities, health services and student activities]; Espejo v. Cornell University , 523 F.Supp.3d 228 [N.D.N.Y. 2021] [students stated claim for breach of contract for tuition refund based on specific language in mission statement reading that "a Cornell education comprises formal and informal learning experiences in the classroom, on campus, and beyond]"; In Re Columbia Tuition Refund Action , 523 F.Supp.3d 414 [S.D.N.Y. 2021] [plaintiff's breach of contract claim concerning instructional format survives because the school's website stated that on-campus courses would be "taught with only traditional in-person, on-campus class meetings" and the same claim as to fees for campus facilities and activities were described by the school as a fee for access to specific locations on campus];

155 N.Y.S.3d 55

Bergeron v. Rochester Institute of Technology , 2020 WL 7486682 [W.D.N.Y. December 18, 2020] [contractual promises adequately pled by plaintiffs who identified multitude of promises made by school concerning benefits of in-person, on-campus program, opportunities to work with faculty in their labs, and robust on-campus support, and as to student activity fee that school states supports programs/events that enhance quality of student life and the health fee that covers office visits that students may need]; Ford v. Rensselaer Polytechnic Institute , 507 F.Supp.3d 406 [N.D.N.Y. 2020] [students sufficiently alleged a specific promise by pointing to declaratory language in college's circular stating "we will" when describing the virtues of an on-campus learning experience, and by pleading statements in the catalog describing a "time-based clustering and residential commons program;" as to activity fees, plaintiffs plausibly stated a claim because school's catalogue stated that the fee included access to a vast array of service, media, recreation, club sports, performing and visual arts and other student organizations but plaintiffs had no access to the facilities, activities and services after date of shutdown]).

As to unjust enrichment claims, these generally have been dismissed, with some exceptions depending...

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