Opinion
EF2020-266203
07-22-2021
Janice LEE-HOLOWKA and Peter Holowka, Plaintiffs, v. EMMA WILLARD SCHOOL; and Emma Willard School Board of Trustees, Defendants.
Ronald B. McGuire, Esq., Attorney For Plaintiffs, Ronald B. McGuire, Esq., of counsel, 119 West 23rd Street, Suite 1900, New York, New York 10011 Whiteman Osterman & Hanna, LLP, Attorneys For Defendants, Norma L. Meacham, Esq., of counsel, Monica R. Skanes, Esq., of counsel, Gabriella R. Levine, Esq., of counsel, One Commerce Plaza, Albany, New York 12260
Ronald B. McGuire, Esq., Attorney For Plaintiffs, Ronald B. McGuire, Esq., of counsel, 119 West 23rd Street, Suite 1900, New York, New York 10011
Whiteman Osterman & Hanna, LLP, Attorneys For Defendants, Norma L. Meacham, Esq., of counsel, Monica R. Skanes, Esq., of counsel, Gabriella R. Levine, Esq., of counsel, One Commerce Plaza, Albany, New York 12260
Henry F. Zwack, J.
In lieu of an Answer, the defendants Emma Willard School ("Emma Willard") and its Board of Trustees, move pursuant to CPLR 3211 (a)(1) and (7) to dismiss the Complaint of the plaintiffs Janice Lee-Holowka and Peter Holowka, who oppose. The defendants also cross-move for oral argument and for permission to submit a sur-reply.
The Court denies the plaintiffs’ cross motion for oral argument, as well as the request for permission to submit a sur-reply. Where, as here, the record establishes that both parties have exhaustively covered the involved issues, and also that the issues are not clearly unique, the Court does not engage in oral argument. Nor, given this record, would the Court accept new facts or law in oral argument, or in sur-reply, that have not been raised in the offered Affidavits and Memorandums of Law.
Turning to the plaintiff's Complaint, their daughter, N.H. (who is not a party to this action) attended Emma Willard, an all girl boarding and day school, as a boarding student from the Fall of 2013 until May 2016, when the plaintiffs withdrew her with a month left in her Junior year. The plaintiffs allege they were harmed because N.H. did not receive appropriate educational services from Emma Willard. Specifically, the plaintiffs allege that instead of receiving "the quality education and the nurturing and safe environment they had paid for," N.H. "was traumatized, neglected and abused by employees of Emma Willard who denied her disability accommodations in violation of state and federal law.." They also allege Emma Willard was negligent in the hiring and retention of certain employees; negligent in supervision of employees; that it engaged in deceptive business practices; that it made fraudulent and negligent misrepresentations to the plaintiffs; and that it breached its contract with the plaintiffs.
Towards facilitating settlement negotiations, Emma Willard and the plaintiffs entered into a tolling agreement — tolling any unexpired statutes of limitation for any claims the plaintiffs might have against Emma Willard until September 30, 2019. The parties further extended this tolling period to March 30, 2019. Due to the COVID-19 crisis, unexpired statutes of limitations were eventually extended until June 6, 2020 by the Governor's Executive Orders 202.8, 202.14, and 202.28.
Emma Willard now argues that the Complaint must be dismissed for several reasons: including that the plaintiffs’ claims against it sound in educational malpractice (a cause of action which is not recognized in New York State, as our courts do not recognize claims against schools which attack the quality of education or the manner in which schools control, manage or operate their educational affairs); that the plaintiffs lack standing (that they seek to recover injuries suffered by N.H., and that N.H. is no longer a minor — having turned 21 on December 19, 2019 — and therefore the plaintiffs lack derivative or third-party standing to bring these claims on behalf of N.H.); that the plaintiffs’ claims for negligent hiring and negligent supervision, deceptive business practices, false advertising and negligent misrepresentation are barred by the applicable three year statute of limitations (Emma Willard's alleged mistreatment of N.H. occurred more than three years prior to the parties’ April 10, 2019 tolling agreement).
The defendants also argue that dismissal is appropriate as to all the claims because they have not been pled with sufficient particularity and simply fail to set forth a cause of action, even when broadly read as the court must do on a motion to dismiss. As to the claims sounding in negligent hiring, retention and supervision, the plaintiffs have not alleged that Emma Willard owed them a duty of care that was breached, proximately caused any injury to the plaintiffs individually, or that it had prior knowledge that any of its employees had a propensity to commit any wrongful acts towards the plaintiffs.
Emma Willard also argues that the plaintiffs’ third cause of action for deceptive business practices must fail, as the plaintiffs have failed to set forth a sufficient jurisdictional nexus with New York. According to the plaintiffs, they were deceived while researching schools from their home state of California, and therefore, Emma Willard asserts, were not consumers in New York. They likewise failed to plead that the acts complained of were consumer oriented, or that the acts were materially misleading to a reasonable consumer acting reasonably under the circumstances. Nor have the plaintiffs pled a case for fraud. In New York, fraudulent representations regarding the quality of educational services provided by a school are not actionable, nor are claims of negligent misrepresentation, and the plaintiffs have not demonstrated any special relationship between the plaintiffs and Emma Willard.
The Enrollment Agreement expressly provides for personal and subject matter jurisdiction in New York.
Emma Willard also argues that the plaintiffs’ breach of contract cause of action is barred by documentary evidence: namely the 2015-2016 Emma Willard Enrollment Contract, and the Fine Print (Emma Willard's student handbook); and that neither of these documents required Emma Willard to provide N.H. with any specialized academic support services to address her unique health conditions, including what the plaintiffs have now described as cognitive disorder and/or anxiety.
The plaintiffs oppose the motion to dismiss, asserting that their Complaint is not a "veiled educational malpractice action" but rather a breach of contract action with causes of action sounding in violations of state and federal law — including the Americans with Disability Act, New York State Human Rights Law — and violations of other statutory and common law duties owed by Emma Willard to the plaintiffs and their daughter. The plaintiffs assert that, although N.H. is not a named party, their daughter is a third party beneficiary of their contract with Emma Willard. They also argue that there are mandatory nondiscretionary duties which require educators to grant special accommodations for students with disabilities.
The plaintiffs also argue that their breach of contract action encompasses both the Enrollment Agreement and the student handbook, Fine Print. They assert that the Fine Print required Emma Willard to provide "outstanding student support systems and a strong residential life program" — which is repeatedly promised in the handbook, and which did not materialize — and that N.H. was denied support for her "processing disorder" and that the plaintiffs were forced to retain an attorney to ensure that their daughter would receive accommodations from the College Board for her testing. N.H. was also denied health care services and mental health services. The plaintiffs also complain that Emma Willard, in setting off a fire alarm to find N.H., after N.H. was missing from morning class, violated Penal Law 240.5, as a form of harassment and in retaliation for the plaintiffs’ attempts to get help for their daughter. They allege another form of retaliation by Emma Willard in forcing N.H. to take medical leave, and the mishandling of N.H's return to campus, requiring her to make up work she missed within one week of her return, and not providing time-management counseling. The plaintiffs claim that N.H. was allegedly pushed to the breaking point by her anxiety, and that Emma Willard refused to provide medical support, including that it told the plaintiffs that one of them would need to move to Troy to care for N.H., or she would be forced to take another medical leave — all culminating in the plaintiffs withdrawing N.H. from Emma Willard on May 11, 2016.
The plaintiffs also argue, as result of Emma Willard's treatment of N.H. (and her ultimate withdrawal from Emma Willard), they have suffered significant financial damage, and seek a return of three years tuition and travel and medical costs — thereby having standing to maintain the action, even though N.H. is not a named party. They further argue that this is a contract action, with a six year statute of limitations; and, in any event, that many of the acts complained of occurred within three years, and also that they are entitled to the benefit of the continuing violation doctrine.
For the reasons that follow the Court grants Emma Willard's motion to dismiss, and dismisses the plaintiffs’ Complaint in its entirety.
On a motion to dismiss, the court must accept as true the facts alleged in the complaint, accord the plaintiffs the benefit of every favorable inference, and determine only whether the facts as alleged fit into any cognizable legal theory ( CPLR 3026, 3211 ; Leon v Martinez , 84 NY2d 83 [1994] ). Notwithstanding the liberal standard applicable to motions to dismiss, the court is not obligated to accept allegations consisting of bare legal conclusions or factual claims flatly contradicted by the documentary evidence ( White v Annuci , 161 AD3d 1428 [3d Dept 2018] ).
Turning first to the issue of standing, on this record the plaintiffs lack standing to bring the action, as they have no interest in the involved Enrollment Contract (see, generally, Society of Plastics Indus. County of Suffolk , 77 NY2d 761[1991] ); and their submissions fail to raise an issue of fact as to standing. The "gravaman" of their Complaint — that "they" have suffered damages as a result of the mistreatment and educational "injuries" N.H. suffered during her third year at Emma Willard — simply ignores that N.H. is no longer a minor, is over the age of 21, and that the causes of action in the Complaint belong to N.H. Their Complaint seeks damages for injuries sustained by N.H. during her tenure at Emma Willard. Clearly, the intended beneficiary of the Enrollment Contract was N.H. However viewed, the plaintiffs are not, as they contend, third party beneficiaries nor do they have any derivative claims. Injuries to an infant give rise to two causes of action: one to the infant's parents (who have the responsibility for the support and maintenance of the child, for loss of services; and the second to the infant ( Natoli v Board of Education of City of Norwich. Union Free School Dit. No. 1 , 101 NYS 2d 128 [Sup Ct, Chenango County 1950] ). The parents’ responsibility for support ends at the age of 21 ( Clough v Board of Educ. of Spencerport Cent. School Dist., 56 AD2d 233, 236 [4th Dept 1977] ). Here, the plaintiffs have no derivative cause of action based on injuries allegedly suffered by their now 21 year old daughter; and any claim that they have suffered, because their daughter has suffered, is not actionable under these circumstances. Rights as a parent to prosecute an action on their child's behalf cease when the child becomes an adult, and the parents do not have standing to assert claims on their own behalf for a violation of their child's rights ( Nguyen v Millike , 2016 WL 2962204 [ED NY 2016], citing H.H. v Monroe Woodbury Cent. Sch. Dist ,, 2012 WL 4477552 [SD NY 2012] ).
Even were the Court to determine that a question of fact exists as to the plaintiffs’ standing (which it does not), it would grant the motion to dismiss, as the Complaint sounds in educational malpractice — a cause of action which is not entertained as a matter of public policy in New York. These public policy considerations, which underline judicial non-interference in tort-based educational malpractice claims, are applicable to private educational institutions, such as Emma Willard ( Andre v Pace Univ., 170 Misc 2d 893 [App Term, 2d Dept 1996] ); and require dismissal of actions predicated on claims of educational malpractice, including claims that the school breached its agreement to provide effective education, or that the court is asked to evaluate the course of instruction or review the soundness of methods of teaching that have been adopted by the educational institution (Hassan v Fordham University , 2021 WL293255 [SD NY 2021]).
New York Courts have consistently refused to substitute their judgment for that of educational officials or to review the day to day administration of academic policies ( Sitomer v Half Hollow Hills Cent. School Dist., 133 AD2d 748 [2d Dept 1987] ). Determinations regarding a student's education "rest in most cases upon the subjective professional judgment of trained educators, the courts have quite properly exercised the utmost restraint in applying traditional legal rules to disputes within the academic community" ( Matter of Olsson v Board of Higher Educ. of City of NY, 49 NY2d 408, 413 [1980], citations omitted). Given that "the administrative decisions of educational institutions involve the exercise of highly specialized professional judgment ... for the most part (they and not the courts) are better suited to make relatively final decisions concerning wholly internal matters" ( Maas v Cornell Univ., 94 NY2d 87, 92 [1999] ).
Turning to the plaintiffs’ breach of contract action, as well as their claims for negligent hiring and retention, negligent supervision, deceptive business practices, fraudulent misrepresentation, and negligent misrepresentation claims, each involves the same factual pattern, and, however viewed, are simply mere reformulations of educational malpractice claims. Again, even if the Court was inclined to adopt the plaintiffs’ reasoning for the viability of these claims (which it does not), each fails to state a cause of action to survive a motion to dismiss. Now, in opposition to the motion to dismiss, the plaintiffs had an opportunity to submit further affidavits to "preserve inartfully pleaded, but potentially meritorious, claims" in their Complaint ( Rovello v Orofino Realty Co. , 40 NY2d 633, 635-635 [1976] ) — which they failed to do.
The breach of contract claim is insufficiently pled, given the plain language of the involved Enrollment Agreement (which recites that it reflects the full understanding of the parties) and incorporates the school handbook, the Fine Print, to limited extent that Emma Willard may terminate its relationship with a student whose behavior fails to conform to "the rules, regulations and policies outlined in the student handbook." Clearly, the Enrollment Agreement is applicable to plaintiffs; and the Fine Print is an implied contract between Emma Willard and N.H., and the specific promises set out in the Fine Print, which are material to N.H.’s relationship with Emma Willard, are enforceable only by N.H. ( Keefe v New York Law School , 71 AD3d 569, 570 [1st Dept 2010] ).
Turning next to the plaintiffs’ argument that Emma Willard has violated the Americans with Disabilities Act, as well as New York's Human Rights Laws, the penal law, and other federal and state statutes — all of which they claim are inherently present in the Enrollment Contract — their claims fail by the plain language of those statutes themselves. Particularly, the plaintiffs lack standing to assert any such claims, as they are not themselves the beneficiaries of federally funded school programs ( Rodriquez v Boursiquot , 2010 WL 985187 [SD NY 2010] ). Further, and as an independent basis for dismissal, the ADA provides in relevant part that "no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities by a public entity or be subjected to discrimination by such entity" ( 42 USC § 12132 ). A discrimination claim has as its core requirements that the individual be found to be disabled and the discrimination came by way of an entity receiving Federal Funds (42 USC § 794). To establish a violation under the ADA, the student must demonstrate that she is a qualified individual with a disability, that the defendant is subject to the statute, and that the student was denied the opportunity to participate in or benefit from defendant's services, programs or otherwise discriminated against because of the student's disability ( I.M. v City of New York , 178 AD3d 126,135 [1st Dept 2019] ).
The Complaint also describes "other state and federal statutes", which are not specifically pled, and is therefore fatal to the plaintiffs. If the intended reference was to Individuals with Disabilities in Education Act ("IDEA"), 20 USCA § 1400 et seq., as well as New York's Education Law § 3602, and if these statutes had been pled, the Court notes that the purpose of the IDEA and Education Law § 3602-c is to provide a public education for children with disabilities (Matter of Pelose (Bishop Grimes Jr./Sr. High School), 66 AD3d 1342, 1343 [4th Dept 2009] ). In order to qualify for federal funds, public schools are required to make those services available to both public and private school students ( Board of Educ. of Monroe-Woodbury Cent. School Dist. v Wieder , 72 NY2d 174 [1988] ). Notably, the plaintiffs make no allegation that Emma Willard, as a private school, receives such federal funds, or that an application for such services was made to a public school.
Nor have the plaintiffs sufficiently pled that N.H. is a person with a disability, as that is defined under IDEA or Education Law § 3602-c, nor does the record show that N.H. otherwise meets the definition as a disabled student under New York Law ( Education Law § 4401 defines a child with a disability being under 21 years of age, and "eligible to attend public schools"). N.H. is not a New York resident, did not attend a public school in New York, and the Complaint fails to assert that she was ever diagnosed by a New York school district as a student with a disability. Also, the plaintiffs are not residents of New York, and even if they had been, there is simply nothing in the record to show that they requested an individual education service program for N.H., pursuant to Education Law § 3602 — which is a necessary prerequisite to invoking the statute's benefits ( K.S. v New York City Department. of Education , 2012 WL 4017795 [SD NY 2012] ; Calhoun v Ilion Cent. School Dist. , 90 AD3d 1686 [4th Dept 2011] ). To the extent that the plaintiffs now attempt to argue that the Enrollment Agreement implicitly contained these statutory obligations, the claim is not supported by the record and thus they fail to state a cause of action.
Turning to the plaintiffs’ allegation that Emma Willard's violated the Penal Law by setting off its own fire alarm to find a truant student, N.H., again, there is no cause of action. In the Court's view, how Emma Willard determined to locate N.H., when she was missing from class, falls squarely within the province of its own rules and procedures as to how it might use an alarm system for that purpose; and the instant claim is nothing more than an allegation of educational malpractice.
Nor, even liberally reading the Complaint, have the plaintiffs stated a cause of action for negligent hiring, supervision or retention. To state a cause of action for negligent supervision, a necessary element is that the employer knew or should have known, had it conducted an adequate hiring procedure, of the employees's "propensity to commit the alleged acts" which caused the claims injury ( Doe v Chenango Valley Cent. School Dist., 92 AD3d 1016, 1016 [3d Dept 2012] ; Earnest L. v Charlton School , 30 AD3d 649 [3d Dept. 2006] ). Further, where, as here, the alleged employee actions fall within the scope of the employee's employment, Emma Willard would only be liable only under the theory of respondeat superior — thus requiring the dismissal of the plaintiffs’ negligent supervision claim ( Segal v St. John's Univ., 69 AD3d 702 [2d Dept 2010] ) as well as the claims for negligent hiring, retention, or training ( McCarthy v Mario Enterprises, Inc. , 163 AD3d 1135, [3d Dept 2018] ). Further, an allegation that Emma Willard owed a duty to a student "not to hire and retain negligent faculty", which caused N.H. to suffer a "nervous breakdown" sounds in educational malpractice and is therefore barred ( Kickertz v New York Univ. , 110 AD3d 268, 276 [1st Dept 2013] ). "The gist" of the plaintiffs’ claims — attacking the quality and qualifications of teachers and personnel employed by a Emma Willard, a private school, and alleging that its personnel were "unqualified" to "address the special needs" of a student" — are an "educational malpractice cause of action, which is not cognizable as a cause of action in New York" ( Sisters of the Holy Child Jesus at Old Westbury, Inc. v Corwin , 51 Misc 3d 44, 48 [App Term, 2d Dept 2016] ).
The plaintiffs’ representation that Emma Willard had an atmosphere conducive to academic pursuits was "a mere expression of opinion, rather that a misrepresentation of a material fact, and is insufficient to support a cause of action for fraud" against the educational institution ( Sirohi v Lee , 222 AD2d 222, 222 [1st Dept 1995] ). Evidence of a special relationship is required to support a claim for negligent misrepresentation; "[r]epresentations that are mere expressions of opinion of present or future expectations are not considered promises when considering the issue of fraud in the inducement" ( Goldman v Strough Real Estate , 2 AD3d 677, 678 [2d Dept 2003], citation and quotations omitted). Here, the plaintiffs were required to allege the existence of a special relationship between the parties such that the reliance would be justified, including that the information was incorrect, and that plaintiff reasonably relied on the information ( Mandarin Trading Ltd. v Wildenstein , 16 NY3d 173, 180-181 [2011] ) — which they failed to do. Further, the plaintiffs’ determination to enroll their child in Emma Willard was based upon their own internet research prior to her enrollment, which would be the date the misrepresentation occurred. This clearly occurred outside of the applicable three year statute of limitations, and these claims are now time barred.
Turning to plaintiffs’ claim that they are entitled to an award of attorney's fees, they are not the prevailing party. This said, in general terms a prevailing party may not recover attorney fees from the losing party except where authorized by statute, agreement or court rule ( Agility Funding, LLC v Loosch , 108 AD3d 820 [3d Dept 2013] ). None of those factors are applicable to the plaintiffs. The Enrollment Agreement specifically provides that Emma Willard may recover counsel fees — which it has not sought in this application — and there is no merit to the plaintiff's argument that they have a reciprocal right under the Enrollment Agreement. A reciprocal right to recover fees is established by statute, such as Real Property Law § 234, which is not applicable here ( Duell v Condon , 84 NY2d 773 [1995] ). Nor is there merit to the plaintiffs’ claim that they are entitled to an award of punitive damages — which are not recoverable for ordinary breach of contract as their purpose is not to remedy private wrongs but to vindicate public rights ( Rocanova v Equitable Life Assur. Soc. of U.S. , 83 NY2d 603 [1994] ). Here, the plaintiffs have set forth no allegations, even if they were the prevailing party, which would warrant such an award.
Turning to the plaintiffs’ allegations that they were enticed by false promises to send their daughter to Emma Willard, and that these promises constitute consumer fraud, GOL § 5-237 governs a consumer's right to recover attorney fees arising out of consumer contracts. A consumer contract is a "written agreement entered into between a creditor, seller or lessor as one party with a natural person who is the debtor, buyer or lessee as the second party, and the money, other property or services which are the subject of the transaction are primarily for personal, family or household purposes" (GOL § 5-237[1][a]). Here, the plaintiffs paid N.H.’s entire tuition when it was due and there is no indication that Emma Willard ever meant to extend to them credit; thus is clearly not a consumer credit transaction ( Jacobs v Smith Boys Marine Sales, Inc. , 23 AD3d 877 [3d Dept 2005] ).
Lastly, turning to the plaintiffs’ deceptive business practice claim under New York General Business Law § 349(a), they were required to allege that the deceptive acts and practices complained of have broad impact on consumers at large, as opposed to affecting a private contract dispute, and that they were injured by the Emma Willard's deceptive or misleading acts or practices ( Oswego Laborer's Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24-25 [1995] ) — which they simply failed to do. Also, as noted, the plaintiffs are not New York "consumers", this was not a consumer credit transaction, and they have not pled fraud with the specificity required under CPLR § 3016 (b). To sufficiently plead a cause of action for fraud, the plaintiffs had to allege that Emma Willard misrepresented a material fact, falsely, with knowledge it was false, and that the deception was meant to and did cause injury; and each of these elements were required to be stated in factual detail ( Lanzi v Brooks , 54 AD2d 1057 [3d Dept 1976] )— which they again failed to do.
In sum, the plaintiffs lack standing to sue on the Enrollment Contract, as it was made solely for the benefit of N.H., who is now an adult. The rights, which they assert were violated by Emma Willard, now belong to N.H., and the plaintiffs have no cause of action to sue for damages on their own behalf for the claimed violation of N.H.’s rights. Further, the plaintiff's allegations sound in educational malpractice, which is also not a cognizable claim in New York
Accordingly, it is hereby
ORDERED , that the defendants’ Motion to Dismiss is granted and the plaintiffs’ Complaint is dismissed.
This constitutes the Decision and Order of the Court. This original Decision and Order is filed by the Court in NYSCEF, which shall not constitute filing and entry under CPLR 2220. Counsel for the defendants is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
Papers Considered, as filed with NYSCEF:
1. Plaintiff's Documents No. 1 through #2;
2. Defendant's Documents #4 through #8;
3. Plaintiff's Document #27;
4. Defendant's Documents #32 through #33;
5. Plaintiff's Documents #35 through #36;
6. Defendant's Documents #37;
7. Plaintiff's Document #38.