Harris v. Dutchess Cnty. Bd. of Coop. Educ. Servs.
| Decision Date | 04 November 2015 |
| Citation | 25 N.Y.S.3d 527,50 Misc.3d 750 |
| Parties | In the Matter of James HARRIS, Timothy Liebrand, Jr., John Roy Schlessman and William Dorr, Plaintiffs, v. DUTCHESS COUNTY BOARD OF COOPERATIVE EDUCATIONAL SERVICES; John Pennoyer, individually and in his official capacity as BOCES District Superintendent ; Mitchell Shron, individually and in his official capacity as Principal/Supervisor of BOCES' Career & Technical Institute; and Stephen O'Connor, Defendants. |
| Court | New York Supreme Court |
Shaw, Perelson, May & Lambert, LLP, Poughkeepsie (Mark C. Rushfield of counsel), for defendants.
Sussman & Watkins, Goshen (Michael H. Sussman of counsel), for plaintiffs.
It is ORDERED that Defendants' motion1 is granted in part and denied in part for the reasons which follow.2
Plaintiffs filed this action against Defendants Dutchess County Board of Cooperative Educational Services ("BOCES"), John Pennoyer, individually and in his official capacity as BOCES District Superintendent, Mitchell Shron, individually and in his official capacity as Principal/Supervisor of BOCES' Career & Technical Institute and Stephen O'Connor, instructor, for violation of General Business Law §§ 349 and 350, fraud and negligent misrepresentation in connection with the Welding and Fabrication Program offered by BOCES in 2010 through 2012 (the "Program"). Plaintiffs Timothy Liebrand, Jr. and William Dorr were enrolled in the Program during the 2010/2011 and 2011/2012 school years. Plaintiffs James Harris and John Roy Schlessman were enrolled in the Program during the 2011/2012 school year. All four Plaintiffs successfully completed the Program in June, 2012.
Plaintiffs allege that BOCES falsely advertised and promoted the Program on its website from 2010 through 2012, by claiming that it offered students the ability to visit production facilities in the Hudson Valley area. Plaintiffs also allege that the advertisement falsely claimed that students would have the opportunity to take the National Competency Exam administered through the American Welding Society ("AWS"), a nationally recognized industry and accreditation organization which seeks to advance the science, technology and application of welding and allied joining and cutting processes throughout the world. Complaint at ¶¶ 1 and 27. They further allege that "each of them, [sic] relied on defendants' website advertisements in deciding to enroll in, remain in and complete the Welding Program." Id. at ¶ 78. In addition, Plaintiffs allege that Defendants Shron and O'Connor represented to them that upon their successfully completing the Program and passing the AWS National Competency Exam administered at BOCES, Plaintiffs would receive certification as Level 1 or Level 2 entry welders from AWS.
Plaintiffs allege that O'Connor represented to them that the final exam they took was an AWS exam; but it was not. They allege that upon graduating in June, 2012, they did not receive AWS, or any other, certification. They state that Plaintiff Liebrand's father followed up with BOCES in August 2012 regarding his son's certification, resulting in his being issued a certificate "bearing the AWS logo and indicating that Liebrand had completed the AWS SENSE [School Excelling Through National Skill Standard Education] program and attained Level 1—Entry Welder' status." Complaint at ¶ 38. Plaintiffs state further that Harris' mother also followed up with several calls to BOCES, beginning in June, 2012, and that Plaintiff Harris was finally issued a certificate in November, 2012 that bore the AWS logo and stated that he attained "Level 1—Entry Welder" status.Id. at ¶¶ 39–46. Plaintiffs further allege that Mrs. Harris subsequently contacted AWS and learned that it did not authorize BOCES to issue AWS certificates. Id. at ¶ 47.
Plaintiffs attached and incorporated by reference into their Complaint an Assurance of Discontinuance entered into between BOCES, through Defendant Pennoyer, and the New York State Attorney General. Notice of Motion to Dismiss, Exhibit A, Assurance of Discontinuance (attached to Complaint). The Assurance of Discontinuance resolved an Attorney General's investigation into claims against BOCES of deceptive business practices and false advertising under General Business Law ("GBL") §§ 349 and 350. BOCES eventually settled with the Attorney General without admitting the Attorney General's findings that it violated GBL §§ 349 and 350 or committed any other wrongdoing, in lieu of legal action being commenced against it.
The Assurance of Discontinuance recites that the Program was registered with the AWS and that BOCES was designated as an AWS SENSE school in 2006. The Attorney General found that BOCES' affiliation with AWS enhanced the appeal of, and attracted prospective students to, the Program. The students who enrolled in the Program were referred primarily by their school districts in Dutchess County, which paid their tuition. The Program was also open to high school graduates seeking additional vocational education, who were required to pay tuition. In 2011–2012, Plaintiff Schlessman paid BOCES $4,505.00 to participate in the Program.
The Assurance of Discontinuance states that AWS provides a Level 1 Welding certificate to graduates of SENSE schools that follow the AWS curriculum and regulations and who pass the National Competency Exam. The AWS curriculum consists of nine modules, each of which requires a written test at the end of that module and a workmanship sample for certain modules. The participating SENSE school must report the students' grades on the tests and workmanship samples to AWS at the completion of each module. Defendants did not adhere to the AWS curriculum or regulations for several years and administered an outdated National Competency Exam to Plaintiffs. Defendants never reported student progress on the curriculum to AWS or their results on the National Competency Exam. Nonetheless, when pressed by the students' parents, Defendants issued certificates to two of the Plaintiffs, which included the AWS logo, although Defendants were not authorized to issue such certification.
On January 9, 2013, Defendant Pennoyer executed the Assurance of Discontinuance on behalf of BOCES. The terms of the settlement required BOCES to pay restitution to the State for the amount of Plaintiff Schlessman's tuition, which was then reimbursed to Schlessman's family, penalties in the amount of $5,000 and the costs of the Attorney General's investigation.
On July 11, 2013, Plaintiffs commenced a special proceeding requesting permission to serve a late Notice of Claim against Defendants. Defendants moved to dismiss the special proceeding, claiming that the GBL §§ 349 and 350 and negligent misrepresentation causes of action were barred by the applicable statutes of limitations and that the fraud claim was patently meritless. The Court denied Defendants' motion to dismiss by Decision and Order of Hon. Peter M. Forman, AJSC, dated April 4, 2014, which also granted leave to serve the Notice of Claim. Judge Forman determined that the Plaintiffs' GBL §§ 349 and 350 and negligent misrepresentation causes of action were timely and that their fraud allegations made out a viable claim.
Plaintiffs subsequently filed this action, alleging in their Complaint the same claims contained in their Notice of Claim.
Defendants now move to dismiss the Complaint, contending that Plaintiffs fail to state causes of action for violation GBL §§ 349 and 350, negligent misrepresentation and fraud and failed to plead fraud with particularity.
In determining a motion to dismiss for failure to state a cause of action pursuant to CPLR § 3211(a)(7), "the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law...." Morris v. Morris, 306 A.D.2d 449, 451, 763 N.Y.S.2d 622 [2nd Dept.2003] (citation omitted). The Court must construe the pleadings liberally, accepting every factual allegation as true and affording plaintiff the benefit of every favorable inference possible. Introna v. Huntington Learning Centers, Inc., 78 A.D.3d 896, 897, 911 N.Y.S.2d 442 [2nd Dept.2010]. On such a motion, the Court seeks to ascertain whether the plaintiff has a viable cause of action rather than whether the cause of action is properly pleaded. Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] ; Elmore v. City of New York, 15 A.D.3d 334, 335, 790 N.Y.S.2d 462 [2nd Dept.2005].
Defendants contend that Plaintiff's claims of negligent misrepresentation and alleged violations of GBL §§ 349 and 350 are, in essence, reformulated claims of educational negligence or malpractice, which are not actionable in the State of New York as a matter of public policy. Defendants rely primarily on the seminal case of ...
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