Supreme Court, Suffolk County, October 1, 2021

Kaufman Borgeest & Ryan LLP, New York City (Dianna D. McCarthy of counsel), for defendant.

Leeds Brown Law, P.C., Carle Place (Michael Alexander Tompkins of counsel), for plaintiff.

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 at 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-[*2]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.^[FN1] 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.^[FN2] 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 "[d]efendant 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{**73 Misc 3d at 636} resulting from the pandemic, and discovered 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.^[FN3] The federal district court opinions have generally been issued in connection with motions made pursuant to Federal Rules of Civil Procedure rule 12 (b) (6), which is the procedural equivalent of CPLR 3211 (a) (7) (DuBois v Brookdale Univ. Hosp. & Med. Ctr., 6 Misc 3d 1023[A], 2004 NY Slip Op 51819[U] [Sup Ct, Kings County 2004]; see [*3]also Hirsch v Arthur Andersen & Co., 72 F3d 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 pleaded in the complaints (see Flatscher v Manhattan Sch. of Music, — F Supp 3d —, 2021 WL 3077500 [SD NY, July 20, 2021] [plaintiff adequately pleaded breach of implied contract claim because of 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 Inst., 2021 WL 2779286, 2021 US Dist LEXIS 124465 [ED NY, July 2,{**73 Misc 3d at 637} 2021, 20-cv-2007 (ERK) (SJB)] [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 pleaded 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 Univ., 523 F Supp 3d 228, 239 [ND NY, Mar. 3, 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, 424 [SD NY, Feb. 26, 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" (emphasis omitted) 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 Inst. of Tech., 2020 WL 7486682, 2020 US Dist LEXIS 241125 [WD NY, Dec. 18, 2020, 20-CV-6283 (CJS)] [contractual promises adequately pleaded 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 Inst., 507 F Supp 3d 406, 411 [ND NY, Dec. 16, 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 catalog 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 pleaded in the complaint (see Beck v Manhattan Coll.,{**73 Misc 3d at 638} 537 F Supp 3d 584 [SD NY, May 7, 2021] [student plausibly pleaded 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 Coll., 2021 WL 3540432, 2021 US Dist LEXIS 150094 [SD NY, Aug. 10, 2021, 20 CV 3559 (VB), 20 CV 3584 (VB)]; Flatscher; Hewitt; Beck; Romankow v New York Univ., 2021 WL 1565616, 2021 US Dist LEXIS 76760 [SD NY, Apr. 21, 2021, 20 Civ. 4616 (GBD)]; Espejo; In re Columbia Tuition Refund Action; Ford).

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, 70 AD3d 655 [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 cause of action cognizable at law a motion for dismissal will fail" (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]; see also Miglino v Bally Total Fitness of Greater N.Y., Inc., 92 AD3d 148, 159-160 [2011], affd 20 NY3d 342 [2013]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]; Sokol v Leader, 74 AD3d 1180, 1180-1181 [2d Dept 2010]; Gershon v Goldberg, 30 AD3d 372, 373 [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 NY3d 11, 19 [2005]).

The FAC

The Breach of Contract Claim Concerning Tuition

Here, the FAC alleges that average yearly tuition was "around $14,295.00 for undergraduate students, and mandatory fees for each semester of approximately $305 including a college fee of $125, a parking permit fee of $5.00, a student activities fee of $75, and a technology fee of $100 ('Mandatory Fees')," and that the tuition was paid to receive a "first-rate education and on-campus, in-person, educational experiences," while the mandatory fees were paid for services and facilities that were simply not provided.{**73 Misc 3d at 639}

Paragraph 73 of the FAC alleges that the plaintiff and class members "entered into binding contracts with Defendant by accepting Defendant's offer to register for on-campus classes in accordance with the terms of the Catalogs, Defendant's publications, and Defendant's usual and customary practice of providing on-campus courses." Paragraphs 31 and 32 also refer to publications, marketing materials, acceptance letters, registration materials, the course catalog, advertisements "and other documents that in-person educational opportunities, experiences and services were material parts of the educational experience." Although the plaintiff provides hyperlinks in footnotes, plaintiff does not quote/cite anything from any of the broad categories of materials recited in the FAC, aside from a few quotes, including from the mission statement, that are availing in terms of stating a claim for breach of contract.

The footnoting of hyperlinks is especially unhelpful since it apparently invites this court to search through the entirety of the information appearing through the link and discern what portion thereof plaintiff intends to assert in support of a colorable claim for breach of contract. The court will not engage in this search expedition on behalf of the plaintiff; it is plaintiff's responsibility to point to specific statements evidencing a promise supporting a contract, express or implied, to provide in-person instruction. Plaintiff has even footnoted a hyperlink to the entire student handbook consisting of 79 pages without a citation to a particular page in the handbook.

Plaintiff's inclusion of a portion of the mission statement reading that the school "helps students develop as whole persons by providing individual attention, interactive teaching, and opportunities for active participation in academic and extracurricular programs" and "foster[s] an environment of openness to the exploration and understanding of diverse ideas, traditions and cultures" does not serve to state a claim for in-person instruction. Nor do plaintiff's other quotations of the College's marketing materials and handbook stated in paragraphs 45 and 46 of the FAC specifically refer to any promise to provide in-person or in-classroom experiences in exchange for students' tuition (cf. Espejo).

Furthermore, plaintiff's allegation in paragraph 76 of the FAC alleging the existence of a contract based on defendant's "usual and customary practice of providing on-campus courses" likewise fails to state a claim for breach of contract (Fedele, 2021 WL 3540432, *5, 2021 US Dist LEXIS 150094, *12-15; In{**73 Misc 3d at 640}re Columbia at 422-424). The inclusion of stock photographs from what may be the College's website depicting students in classrooms are also unavailing because it is unknown when they were taken, and in any event, they do not constitute a promise since the fact that the College provided in-person instruction before March 2020 "does not imply a contractual entitlement to continued instruction in the same location and manner" (In re Columbia at 423).

Moreover, the fact that defendant also offered a full-time online tuition option for less money than a full-time student does not give rise to a promise that plaintiff was contractually entitled to exclusively in-person instruction (id.).

[1] In short, plaintiff's breach of contract claim as to tuition is insufficiently pleaded because she fails to identify any specific language indicating or even suggesting a promise of in-person instruction. "[A] promise must be written and specific for that promise to be enforced as a term of the implied educational contract between student and university" (Beck, 537 F Supp 3d at 588). Plaintiff has not adequately alleged a claim for breach of contract as to in-person instruction, and so that claim is dismissed (Hewitt).

The Breach of Contract Claim Concerning Mandatory Fees

[2] In the context of this motion, and at this early stage of the case, plaintiff has adequately set forth a claim with respect to at least some of the fees paid. The court notes that the defendant acknowledges that it has already reversed the parking fee on plaintiff's account. The student activities referred to in the FAC encompass fees for participation in various organizations, including athletic activities through involvement in sports (intramural and intercollegiate), cultural life (lectures, theatre productions, dance performances), Greek life, and intramural and recreational activities. It is reasonable to conclude that the sporting activities, Greek life, intramural activities, and cultural activities could not, and did not, take place due to the pandemic since those activities would likely have involved person-to-person contact. Accordingly, as to the $75 student activity fee, the plaintiff has plausibly stated a claim for breach of contract.

As to the $125 college fee and the $100 technology fee, the FAC makes no factual allegation as to any alleged promise by defendant, how the defendant would apply these fees, or that the defendant breached any promise in connection with these fees, other than to seek reimbursement in whole or in part for{**73 Misc 3d at 641} them. The defendant offers in support of its motion that the college fee is applied to maintain student records, which would have had to be accomplished whether or not instruction was delivered in-person or online. The court further notes that the plaintiff graduated from the defendant college; therefore, the defendant apparently maintained the appropriate records reflecting that plaintiff was entitled to the award of a degree. [*6]As to the technology fee, there is no allegation in the FAC that the defendant failed to provide technological services or breached some other promise in connection with this specific fee; rather, it appears that the defendant must have provided those technological services since the plaintiff was able to successfully complete her course of study.

The Unjust Enrichment Claim

The FAC alleges that, "[i]n the alternative, Plaintiff brings this claim for unjust enrichment," summarily averring that the defendant "has been unjustly enriched," and that defendant's "acts were unjust for them to keep money for services they did not render." However, the allegations made in paragraphs 87 through 96 are duplicative of the claims asserted in connection with the breach of contract claim.

[3] "To prevail on a claim for unjust enrichment in New York, a plaintiff must establish 1) that the defendant benefitted; 2) at the plaintiff's expense; and 3) that 'equity and good conscience' require restitution" (Kaye v Grossman, 202 F3d 611, 616 [2d Cir 2000], quoting Dolmetta v Uintah Natl. Corp., 712 F2d 15, 20 [2d Cir 1983]). In the FAC, plaintiff fails to allege any facts showing that "equity and good conscience" require a refund of any of her tuition or of the fees for which she has failed to state a breach of a contractual obligation: the defendant's actions were not arbitrarily undertaken, but were mandated pursuant to the New York Governor's executive orders; plaintiff continued to attend her classes in an online format, and she was awarded a degree in May 2020, thereby receiving the benefit of the course credits (cf. Beck). As to the plausibly-stated claim for breach of contract concerning the $75 student activity fee, the unjust enrichment claim cannot lie because it is duplicative of the breach of contract claim (Goldman v Metropolitan Life Ins. Co., 5 NY3d 561 [2005]). Accordingly, the cause of action for unjust enrichment is dismissed in its entirety.

The Claim for Conversion

[4] The court notes that the FAC allegations for this claim plead an "express understanding that the Defendant would {**73 Misc 3d at 642}provide in-person educational experiences, opportunities, and services," which is the same harm alleged in her breach of contract cause of action, warranting dismissal on this basis. "[A] conversion claim may only succeed if a plaintiff alleges wrongs and damages distinct from those predicated on a breach of contract" (Flatscher, — F Supp 3d at —, 2021 WL 3077500, *10). The FAC does not allege any wrongful act that is separately actionable.

Also, plaintiff's claim for conversion states in conclusory fashion that the defendant has converted plaintiff's property without just compensation, and that this cause of action is a "separate and distinct harm." "Money may be the subject of a conversion action only if it is 'specifically identifiable and segregated' and there exists 'an obligation to return or otherwise treat in a particular manner the specific fund in question' " (In re Columbia at 430-431, quoting Manufacturers Hanover Trust Co. v Chemical Bank, 160 AD2d 113, 124 [1st Dept 1990]; see also Espejo at 242-243). Plaintiff makes no allegation whatsoever in this regard, and her argument in opposition merely asserting that "[p]laintiff has pled each of these elements by alleging that Defendant wrongfully retained and refused to refund her tuition and fees" is nothing more than circular reasoning that is conclusory and unpersuasive.

FAC Request for Class Certification

The court declines to certify the class naming plaintiff as representative at this juncture, without prejudice to the plaintiff making a separate motion for that relief.

Conclusion

For the foregoing reasons, the defendant's motion to dismiss is granted in part and denied [*7]in part as follows:

• The unjust enrichment and conversion claims are dismissed.

• Plaintiff's breach of contract claim related to the student activity fee ($75) survives, but not the claims related to the college fee ($125) or the technology fee ($100).

• Plaintiff's breach of contract claim related to tuition is dismissed.