Jeffers v. Am. Univ. of Antigua

• Decision Date: 05 February 2015
• Citation: 2015 N.Y. Slip Op. 00963,125 A.D.3d 440,3 N.Y.S.3d 335
• Parties: Rahman Ishmael JEFFERS, et al., Plaintiffs–Respondents, v. AMERICAN UNIVERSITY OF ANTIGUA, et al., Defendants–Appellants.
• Court: New York Supreme Court — Appellate Division

125 A.D.3d 440

3 N.Y.S.3d 335

2015 N.Y. Slip Op. 00963

Rahman Ishmael JEFFERS, et al., Plaintiffs–Respondents

v.AMERICAN UNIVERSITY OF ANTIGUA, et al., Defendants–Appellants.

Supreme Court, Appellate Division, First Department, New York.

Feb. 5, 2015.

Cowan, Liebowitz & Latman, P.C., New York (J. Christopher Jensen of counsel), for appellants.

Jamie Andrew Schreck, P.C., New York (Matthew Torrie of counsel), for respondents.

MAZZARELLI, J.P., SWEENY, ANDRIAS, MOSKOWITZ, RICHTER, JJ.

Opinion

Order, Supreme Court, New York County (Joan A. Madden, J.), entered March 17, 2014, which, to the extent appealed from, denied as premature defendants' motion for summary judgment dismissing the complaint, unanimously modified, on the law, to grant so much of the motion as sought summary judgment on the fraud, negligent misrepresentation, unjust enrichment, and conversion causes of action, and otherwise affirmed, without costs.

Plaintiffs are former nursing students seeking to recover their tuition, costs, and damages from defendant the American University of Antigua (AUA), a nursing school which is located in the nation of Antigua and Barbuda, and related entities. Plaintiffs assert causes of action for fraud, breach of contract, negligent misrepresentation, unjust enrichment, and conversion, based on defendants' alleged misrepresentation that AUA graduates would be qualified to take the National Council License Examination for Registered Nurses (NCLEX), and upon passing that examination, enroll directly into Lehman College's “one-year R.N. to B.S. in Nursing program” and graduate with a Bachelors of Science Degree in Nursing. However, plaintiffs allege AUA was not, at the time of their enrollment, a properly accredited school under § 64.1(a)(3) of the Regulations of the Commissioner of Education of New York State (8 NYCRR 64.1 [a] [3] ). Under that regulation, graduates from a nursing program located in a foreign country may take the NCLEX only if they graduated from a program that “the licensing authority or appropriate governmental agency of said country certifies to the department as being preparation for practice as a registered professional nurse.”

AUA's first class of nursing students graduated in late 2009.¹ However, AUA graduates were not permitted to take the NCLEX in New York until December 2011 because, in 2010, the New York State Education Department (NYSED) found that AUA was not approved by the General Nursing Council of Antigua and Barbuda, and thus was not a certified nursing program in that country. Without passing the NCLEX, AUA graduates were not qualified to enroll in Lehman College's one-year BSN program. In January 2011, Lehman College allowed AUA graduates to enroll in its Generic Nursing Program, which did not require completion of the NCLEX. In December 2011 (approximately two years after the first AUA class graduated), NYSED altered its earlier decision and determined, based on “the representations set forth in letters submitted by the Prime Minister, Minister of Health, the Attorney General, and other government officials of Antigua and Barbuda,” that the school was properly accredited in Antigua and Barbuda. Graduates were then qualified to take the NCLEX in New York and enroll in Lehman College's one-year BSN program, as promised by AUA at the time of their enrollment several years earlier.

Summary judgment is inappropriate as to plaintiffs' breach of contract claims. “ ‘[P]romises set forth in a school's bulletins, circulars, and handbooks, which are material to the student's relationship with the school, can establish the existence of an implied contract’ ” (Cheves v. Trustees of Columbia Univ., 89 A.D.3d 463, 464, 931 N.Y.S.2d 877 [1st Dept. 2011], lv. denied 18 N.Y.3d 807, 2012 WL 489934 [2012], quoting Keefe v. New York Law School, 71 A.D.3d 569, 570, 897 N.Y.S.2d 94 [2010]] ). AUA's “fact book” aimed at prospective students promised, inter alia, that AUA graduates would be eligible to take the NCLEX, and, upon passing that exam, “automatically matriculate” into Lehman College's “one-year RN to BSN program.” While generally denying plaintiffs' allegation that they breached the contract, defendants also argue that plaintiffs failed to establish damages. Defendants note that, during the two-year period in which graduates were not qualified to take the NCLEX in New York, some plaintiffs entered Lehman College's Generic Nursing Program, and some withdrew from AUA and/or transferred to another nursing school. Defendants further note that AUA offered refunds to any graduates unable to take the NCLEX examination because of the NYSED accreditation issue. Defendants' arguments raise issues of fact, but do not entitle them to judgment in their favor as a matter of law.

At the time of defendants' summary judgment motion, no discovery had occurred, and the motion court properly found that summary judgment on this claim was premature. Defendants contend that plaintiffs have not shown that facts essential to oppose the motion were in defendants' exclusive knowledge, or that discovery might lead to facts relevant to the material issues (see Woods v. 126 Riverside Dr. Corp., 64 A.D.3d 422, 424, 882 N.Y.S.2d 106 [1st Dept.2009], lv. denied 14 N.Y.3d 704, 2010 WL 606286 [2010] ). Plaintiffs have not yet deposed defendants, and the record is not fully developed on damages, though plaintiffs do contend that they suffered financial harm. Defendants' motion for summary judgment stayed discovery (CPLR 3214[b] ; see McGlynn v. Palace Co., 262 A.D.2d 116,...