Dubrow v. Briansky Saratoga Ballet Center, Inc.

Decision Date27 December 1971
Citation68 Misc.2d 530,327 N.Y.S.2d 501
PartiesMarcia DUBROW, Plaintiff, v. BRIANSKY SARATOGA BALLET CENTER, INC., Defendant.
CourtNew York City Court

Gruber & Gruber, New York City, for plaintiff.

Surowitz & Ruskin, New York City, for defendant.


Plaintiff is suing for a refund of tuition in the amount of $885. Before the Court is a motion by defendant, Briansky Saratoga Ballet Center, Inc. to dismiss the complaint and grant summary judgment in its favor.

The facts as presented on the motion papers are as follows: On January 3, 1971, the plaintiff signed an agreement enrolling her daughter, Lisa in defendant's ballet school for a six-week summer session to commence July 4th and end August 15, 1971. The school is located during the summer months on the Skidmore College campus in Saratoga Springs, New York. Prior to the commencement of the term, plaintiff paid the tuition fee of $885 which by the terms of the agreement covered instruction in ballet as well as room and board for her daughter. The agreement provided: 'Tuition will be refunded if the student withdraws a week before the opening of the school. In any case of withdrawal or dismissal after the term has begun, the school reserves the right to retain the tuition fee. No deductions will be made for absences.'

The plaintiff's 15 year old daughter arrived at the ballet center in Saratoga Springs on July 4th. She was able to participate in the program for approximately three days. Thereafter, due to illness, specifically, infectious mononucleosis complicated by hepatitis, it was necessary for her to return home for medical treatment and rest. The affidavit of the child's doctor indicates that she was confined to bed from July 10 to August 20th. The Plaintiff contends that the parties are discharged from the obligations under the contract by virtue of 'impossibility of performance' by her daughter. Predicated upon this alleged discharge, plaintiff claims she is entitled to recover the prepaid tuition.

On the other hand, defendant urges on the motion for summary judgment that the clause in the contract quoted above reserving the right of the school to retain the tuition in any case of withdrawal precludes plaintiff's claim of impossibility of performance as a matter of law. Specifically, defendant argues that since the parties have expressly agreed in their contract concerning the manner and character of the refund, that such provision is binding. (citing Baer v. United States Lines Co., 180 Misc. 456, 43 N.Y.S.2d 212).

The Court does not agree that the clause in the agreement is so unequivocal as to preclude a construction which may excuse performance by reason of illness. This agreement under which plaintiff's child was to receive training in a social skill, was inherent with the condition that such infant could partake of the instruction. The unfortunate intervention of illness, beyond plaintiff and her infant daughter's control, is in this Court's opinion not within the contractual language that, 'in any case of withdrawal. . . .' Such language contemplates an affirmative act on plaintiff's part to withdraw her daughter from the school, as a voluntary act. Here, for reasons beyond plaintiff's control, by an act of God, illness, the infant was prevented, although willing to partake in the instruction.

The Defendant, as the author of the contract, chose words of limited application. 'Withdrawal' is not 'disability' by reason of an illness. Withdrawal implies self-inducement. In this respect, Drucker v. New York University, 59 Misc.2d 789, 300 N.Y.S.2d 749, demonstrates the point. There, plaintiff, after enrollment, resigned (withdrew) and re-enrolled in another school. A clear case of breach of contract without cause by plaintiff was spelled out. That is not the case at bar.

Furthermore, it appears to this Court that where the primary purpose of a contract is to permit a specified person to perform in a certain manner, there is implied at law an intent by the parties to hold each other liable only if the health and life of that party is such as to permit continued performance, unless a contrary intent appears in the contract. (Stewart v. Loring, 5 Allen 306 (Mass.1850); wherein the Court held that A's promise to employ B for a year as a tutor for A's son was discharged by death of son.) See also: Lacy...

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3 cases
  • In Re The Estate Of James F. Sheppard. Thomas S. Ryan v. Estate Of James F. Sheppard, 2009AP1307.
    • United States
    • Wisconsin Court of Appeals
    • July 14, 2010
    ...condition “that sickness or death shall be an excuse for nonperformance” by either party. Dubrow v. Briansky Saratoga Ballet Ctr., Inc., 68 Misc.2d 530, 327 N.Y.S.2d 501, 503 (N.Y.Civ.Ct.1971). 3 in such a situation, “[N]EITHER PARTY CONTEMPLATES substitution by another; their relation is p......
  • Perez v. Aerospace Academy, Inc.
    • United States
    • Florida District Court of Appeals
    • July 25, 1989
    ...occurrence of a serious illness or disability has prevented the student from attending. E.g., Dubrow v. Briansky Saratoga Ballet Center, Inc., 68 Misc.2d 530, 327 N.Y.S.2d 501 (N.Y.Civ.Ct.1971); see generally Annot., 20 A.L.R.4th 303 §§ 3[b], 5. The latter circumstances are not present We a......
  • Johnson v. Milford Acad.
    • United States
    • New York City Court
    • October 12, 2018
    ...the school was entitled to the full tuition for the year as liquidated damages. See, 51 Misc 3d at 48. In Dubrow v. Briansky Saratoga Ballet Ctr., Inc., 68 Misc 2d 530 (Civ. Ct. 1971), the court found in favor of a plaintiff seeking refund of a tuition payment made for his daughter to atten......

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