Croce v. St. Joseph's Coll. N.Y.

• Decision Date: 01 October 2021
• Docket Number: Index No. 610886/2020
• Citation: 73 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.
• Court: New York Supreme Court

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

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.

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 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 to discover whether there is any precedent arising from similar circumstances 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]; 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]; 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 on the specific allegations pled in the complaint (see Beck v. Manhattan College , 537 F.Supp.3d 584, 2021 [S.D.N.Y. May 7, 2021] [student plausibly pled unjust enrichment cause of action for tuition refund where student alleged college saved money by closing facilities and received Coronavirus Aid, Relief, and Economic Security Act funding to move to online classes]).

By and large, claims alleging conversion have been dismissed, mostly as duplicative of a breach of contract claim, and/or because the claim is not predicated on a specifically identifiable and segregated fund ( Fedele v. Marist College , 2021 WL 3540432 [S.D.N.Y.August 10,2021] ; Flatscher , supra ; Hewitt , supra ; Beck , supra ; Romankow v. New York University , 2021 WL 1565616 [S.D.N.Y. April 21, 2021] ; Espejo , supra ; In Re Columbia Tuition Refund Action , supra ; Ford , supra ).

Standard of Review

When deciding a motion to dismiss pursuant to CPLR § 3211(a)(7), the court must afford the complaint a liberal construction, accepting all facts as alleged in the complaint to be true, and according the plaintiffs the benefit of every favorable inference (see Marcantonio v. Picozzi III , 70 A.D.3d 655, 893 N.Y.S.2d 623 [2d Dept. 2010] ). The sole criterion on a motion to dismiss is "whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cognizable action at law a motion for dismissal will fail" ( Guggenheimer v. Ginzburg , 43 N.Y.2d 268, 275, 401 N.Y.S.2d 182, 372 N.E.2d 17 [1977] ); see also Miglino v. Bally Total Fitness of Greater New York, Inc., 92 A.D.3d 148, 159-160, 937 N.Y.S.2d 63 ], aff'd , 20 N.Y.3.d 342, 961 N.Y.S.2d 364, 985 N.E.2d 128 [2013] ); Leon v. Martinez , 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; Sokol v. Leader , 74 A.D.3d 1180, 1180-1181, 904 N.Y.S.2d 153 [2d Dept. 2010] ; Gershon v. Goldberg , 30 A.D.3d 372, 373, 817 N.Y.S.2d 322 [2d Dept. 2006] ). "Whether a plaintiff can ultimately establish its allegations is not part of the calculus in determining a motion to dismiss" ( EBC I, Inc. v. Goldman, Sachs & Co. , 5 N.Y.3d 11, 19, 799 N.Y.S.2d 170, 832 N.E.2d 26 [2005] ).

The FAC

The Breach of Contract Claim Concerning Tuition

Here, the FAC alleges that average yearly tuition was "around $14,295.00 ...