Opinion
128842
09-28-2017
YUZHEN FANG, Claimant, v. The CITY UNIVERSITY OF NEW YORK, Defendant.
For Claimant: Yuzhen Fang, Pro Se For Defendant: Eric T. Schneiderman, New York State Attorney General, By: Suzette C. Merritt, Assistant Attorney General
For Claimant: Yuzhen Fang, Pro Se
For Defendant: Eric T. Schneiderman, New York State Attorney General, By: Suzette C. Merritt, Assistant Attorney General
David A. Weinstein, J.
By claim filed November 23, 2016, claimant pro se Yuzhen Fang alleges as follows, against defendant City University of New York ("CUNY"):
"The above claimant was promised a $4000.00 scholarship if she attended defendant's institution. Claimant relied on this promise and attended defendant's institution. Defendant never paid any scholarship monies to the claimant."
Claimant seeks $4,000 in damages.
In her response to the present motion, Fang states that she suffered a loss of $16,000 in scholarships — $4,000 for each undergraduate year of college. Assuming that Fang is still a student at CUNY, she is now a sophomore.
Defendant now moves for summary judgment, supported by the affirmation of counsel, the affidavit of Director of Scholar Programs at CUNY's Hunter College ("Hunter" or "the College") Brian Buckwald, and various documentary exhibits.
In its submission, defendant argues that it "never made a clear and unambiguous promise to pay the claimant $4000" (Affirmation of Suzette Corinne Merritt in Support of Motion ["Aff. in Supp."] ¶ 5). Further, it argues that claimant could not have relied on any promise it made regarding this scholarship, because Fang did not receive word of the scholarship until three weeks after she was admitted to Hunter, and because she was informed of the terms of the scholarship and was on notice that she could not meet the eligibility requirements.
The documents appended to counsel's affirmation set forth the following account: Around December 4, 2015, claimant applied to Hunter for the academic year beginning Fall 2016. She received notice of her admission to the College on February 24, 2016 (see Mot. Ex. E). By letter dated March 15, 2016, Fang was told that she had been accepted into the Sage Honors Scholar Program (id. Ex. G). The letter invited her to log into her MyChoice page to review the details of the scholarship (id. ).
The affirmation of counsel states: "The Sage Honors Scholar Program offer letter described some of the valuable benefits offered, including priority registration, priority access to residence hall lodging, a dedicated academic advisor, and a renewable scholarship" (Aff. in Supp. ¶ 17). Defendant's motion, however, does not append a copy of this letter, although the affirmation in support appears to indicate to the contrary (see Aff. in Supp. ¶¶ 16-17 [stating that a copy of the offer letter is appended as Exhibit G] ). Instead, the one page letter appended as Exhibit G includes only the announcement of Fang's acceptance into the Sage Program, but makes no reference to the terms of the program. The Offer Letter is also referenced in a chronology provided by Buckwald as well as in claimant's opposition submission, but neither attaches a copy (see Cl. "Not. of Mot." at 2 [quoting from the Offer Letter, referenced as "an additional screenshot of the Hunter College website"]; Aff. in Supp. Ex. I [referring to Offer Letter as Exhibit E to the chronology, which is appended to the motion without exhibits] ).
Thus, although the "Offer Letter" is where the alleged promise is set forth, it is not included in the motion papers. That letter is present in the Court record, however, as part of a filing by CUNY of its discovery, and as noted it is explicitly addressed by both parties. I therefore find it appropriate to consider that document on this motion.
Since the Offer Letter is a key document reflecting the contents of the understanding and communication between the parties, the only alternative would be to deny the motion for defendant's failure to include it (see Rodriguez v. Sol Goldman Invs., LLC , 115 AD3d 659 [2d Dept 2014] [denying summary judgment motion where moving defendant "failed to attach a complete copy of the subject master lease to their moving papers"];Sayeedi v. Walser , 15 Misc 3d 621, 630 [Civ Ct, Richmond County 2007] [denying plaintiff's motion for inquest on breach of contact; plaintiff did not include web page with key elements of the parties' agreement, and "[w]ithout the full agreement, all of the terms are not known to the court"] ). Given that the identity of the document at issue is clear, its omission appears to be an oversight, and both parties address it and incorporate it by reference, I find it appropriate to consider it as part of the record on this motion (see Flanders v. National Grange Mut. Ins. Co. , 124 AD3d 1035, 1036 [3d Dept 2015] [on summary judgment, considering report incorporated by reference in affidavit] ).
The "Offer Letter" began: "Congratulations! You have been selected for the Sage Honors Scholar Program with a merit scholarship of $4,000 per academic year." After listing this and other benefits, the letter welcomed Fang to the program. It provided an estimate of her out-of-pocket costs, consisting of tuition and fees "minus any grants and/or scholarships you have been awarded." It then advised the recipient: "you may be able to reduce your estimated out-of-pocket costs once we receive your 2016-17 FAFSA information." It went on to explain how to apply for a FAFSA, stating that it "allows the government to assess your income to determine whether you are eligible for any federal and/or state grants." The letter gave no indication that submission of a FAFSA was required to receive the $4,000 it had characterized as a "merit" award.
A FAFSA is a "Free Application for Federal Student Aid." According to the FAFSA website, it is necessary to fill out this form "in order to stay eligible for federal student aid" (see https://studentaid.ed.gov/sa/fafsa).
Counsel asserts in her affirmation that the offer "came with an extensive list of conditions and requirements," specifically a document labeled "Program Rules and Terms for Honors Scholar Program" (the "Program Rules") appended as Exhibit H (Aff. in Supp. ¶ 18). The affirmation does not indicate how this list was provided to claimant. Neither the acceptance letter nor the "Offer Letter" make any reference to such a document, although the former states that she should "[l]og in to [her] MyChoice page to see the details of [her] scholarship offer" (id. , Ex. G).
In his affidavit, Buckwald attests only to the veracity of the records submitted by defendant as exhibits, and to their admissibility as business records (Aff. in Supp., Ex. C). In a separate, unsworn email sent by Buckwald in April of this year, he explains that Hunter uses a system called "Hobson's Connect" to send admissions and scholarship information, and admitted students have access to the MyChoice portal "where they login, view, and act upon steps necessary to commit and complete other pre-matriculation tasks ..." (id., Ex. I). Each step that a student takes on the portal, according to Buckwald's email, "requires some action in order for the student to progress in the steps." On Step 2, Fang was able to view the scholarship letter, and had to check off the box "I accept the terms of my Scholarship Offer" to proceed (id. ). He does not say, however, where and how on the MyChoice page the terms and conditions were made available to claimant, nor does defendant's submission state anywhere else how they were provided to Fang.
Buckwald appended to his email a timeline, which included the following chronology:
• On February 24, 2016, Fang received an email informing her that she had been admitted to Hunter College.
• On March 15, Fang was sent the email appended as Exhibit G informing her that she had received the scholarship, and the "Offer Letter" was made available for her viewing.
• On April 14, claimant "clicked off" on step 2, including a checkbox indicating that she accepted "the terms of [her] Scholarship Offer"
• On April 27, she submitted a $100 cash commitment deposit
(id. ). Again, no reference is made in this document as to how claimant was informed of the Program Rules.
A copy of the Program Rules dated April 20, 2016 (six days after claimant is said to have "clicked off" on the terms of her scholarship) is included to defendant's motion papers (Aff. in Supp. Ex. H). Of particular importance to defendant's argument, the document states that "Students in the program must file a FAFSA ... annually by July 15th prior to the start of each academic year," and failure to meet this deadline would result in the loss of the award that year (id. , ¶ 14). The document contains numerous other instructions regarding the scholarship, but nothing in the document gives any indication that an individual's immigration status may make her ineligible to comply with this requirement, and therefore unable to receive the scholarship.
According to two further (unsworn) emails sent by Buckwald and one Ben Ross, Academic Advisor for Scholar Programs, Ms. Fang spoke to Ross on September 8, apparently having learned at that point that she would not be eligible for the scholarship because "as a non-citizen, she would not be able to file FAFSA" (id. Exs. J, K). In that conversation, she was again told that she was not be able to receive the scholarship. According to Buckwald's email, Fang's main argument was that she had not seen the program terms (id. Ex. K).
Fang wrote a letter of protest to CUNY Vice President for Student Affairs and Dean of Students Eija Ayravainen (id. Ex. L). The letter stated that she had an H-4 visa and was in the process of applying for U.S. citizenship. She noted that English was not her primary language and she found "the MyChoice website to be confusing in its display of the program rules and terms" (id. Ex. L). She stated that she was not aware of a FAFSA application requirement for the scholarship, "no Hunter College personnel advised [her] that a Social Security number was required to obtain the scholarship," and she learned of this only in a meeting with the bursar's office in August (id. ). She requested an exemption, by which her tax identification number would be used in lieu of a Social Security number, as she was told had been done in the past (id. ).
H-4 visas are given to immediate relatives of recipients of H-1B employment visas.
In the Vice President's email in response, he stated that Fang was aware that "the terms of this scholarship indicate that you must be able to file an electronic FAFSA," and these terms were "pretty clearly spelled out on the sheet that is sent to you" (id. , Ex. M).
As the above makes clear, nothing in defendant's submission demonstrates that any such sheet was "sent" to claimant.
Fang made a second written appeal, this time to Hunter President Jennifer Raab (id. , Ex. N). In the letter, she stated that the absence of a scholarship had caused her and her family "extreme financial hardship" (id. ). Further, she argued that Ayravainen failed to address that she had been "informed by the University that I had been awarded the scholarship and planned accordingly, committing to the program and turning down other awards that I had received" (id. ).
The record does not reflect that Fang received any further response.
Defendant's counsel also provides a log of the dates and times on which claimant "logged into" her personal information page, on which "she could view all the admission and scholarship related information" (Aff. in Supp. ¶ 22 & Ex. F). She notes as well that on April 11, 2016 (before Fang had accepted CUNY's offer) the log reflects a "message to new admitted students who have not yet filed FAFSA using the FAFSA award date" (id. ¶ 23 & Ex. F). The letter — a copy of which is not provided with the motion — is listed as concerning a "FAFSA 2016 Priority Deadline," and it is unclear whether it bears any connection to claimant's circumstance.
The log reflects numerous additional communications with claimant; none is identified as having anything to do with FAFSA. One entry indicates that a message was sent to all students without Social Security numbers, providing them with a dummy identification number (Aff. in Supp, Ex. F at 3).
Claimant responded to CUNY's motion with a document labeled "Notice of Motion," although it is in essence a statement in opposition. As originally presented, this filing was not notarized. Defendant filed a reply affidavit which addressed the assertions made in claimant's submission, and did not note the absence of notarization. Subsequent to the reply affidavit, Ms. Fang submitted a notarized version of her opposition papers, which are otherwise identical. Given that I have before me a sworn document from claimant, and defendant is not prejudiced by the late presentation of the notarized version since she had the opportunity and did in fact respond to the assertions made therein and never challenged its admissibility, I will consider it in ruling on this motion.
Ultimately, I find that defendant has failed to set forth a prima facie case, and thus the outcome would be the same regardless. For reasons set forth below, however, defendant's affidavit presents additional grounds for denying the application.
In her submission, Fang asserts the following, in addition to reiterating the statements made in her correspondence with Hunter officials:
• The CUNY administration was "well aware of [her] immigration status," as it was disclosed in her application to the CUNY Macaulay Honors College Program.
• The CUNY website "was not clear in delineating the terms and conditions of the scholarship," and that because of her "lack of familiarity with English," she did not fully understand the implications of checking the box indicating that she accepted the terms of the offer.
• The letters announcing her acceptance of the award indicated that she had "earned" and been "selected for" her scholarship, indicating that it was merit-based and not an "invitation to obtain tuition assistance" as characterized in defendant's submission, and which would require a FAFSA.
• She committed to attend CUNY "in anticipation of the scholarship promised."
• She turned down other offers of scholarships from other institutions based on the email informing her that she had been awarded the scholarship at issue.
• She had an in-person conversation with Buckwald on September 13, 2016, and when she told him that the FAFSA requirement was not made clear up front, he said that "the Program had to be kept open to all to comply with anti-discrimination laws," although it meant that some accepted into the program could not then complete the requirements for financial assistance.
Fang was ultimately not accepted into Macaulay, but her application for that program was referenced in the same emails that addressed her admission into Hunter, and into the Sage Program (see Aff. in Supp., Exs. E & G).
In a reply affirmation of counsel, CUNY argues inter alia that (1) Fang's academic record indicates that she has significant proficiency in English; (2) claimant fails to identify the other scholarship offers she turned down to go to CUNY; and (3) the FAFSA requirement was set forth in the program rules, and claimant "should have read the requirements for the scholarship that was being offered to her" (Reply Aff. ¶¶ 3-4).
Discussion
To prevail on a motion for summary judgment, defendant must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact (see Winegrad v. New York Univ. Med. Ctr. , 64 NY2d 851, 853 [1985] ). Once this showing has been made the burden shifts to the party opposing the motion for summary judgment to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action (see Alvarez v. Prospect Hosp. , 68 NY2d 320, 324 [1986] ).
Here, defendant argues that the claim sounds in promissory estoppel. This cause of action requires claimant to show defendant made her a clear and unambiguous promise upon which she reasonably relied to her detriment ( Clifford R. Gray, Inc. v. LeChase Constr. Servs. , LLC, 31 AD3d 983, 986 [3d Dept 2006] ).
Defendant states in its motion-in-chief that this doctrine had not been adopted at that time by the Court of Appeals. Subsequent to that filing, the Court of Appeals explicitly recognized the application of promissory estoppel under New York law, but addressed the question only in the context of the use of the doctrine to avoid the statute of frauds (see Matter of Hennel , 29 NY3d 487, 494 [2017] ).
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Although the parties do not discuss the question, the claim may also be read as asserting a cause of action for breach of contract, since a student's admission into an academic institution gives rise to an implied contract (see Jones v. Trustees of Union Coll. , 92 AD3d 997, 998 [3d Dept 2012] ; see also Reyes v. New York Univ. , 305 AD2d 392 [2d Dept 2003] ["Institutions of higher education do maintain contractual relationships with their students, and can, under appropriate facts, be liable for breaches regarding scholarships"] ). I need not address this, though, since defendant's motion fails as to the former claim in any case.
Defendant argues that it is entitled to judgment as a matter of law on several grounds. First, it contends that reliance was impossible because Hunter's admission offer preceded the offer of the scholarship (see Aff. in Supp. ¶ 39). This contention makes little sense. The alleged reliance did not occur at the time of admission, but when Fang accepted the offer to attend on the understanding that she was to receive a scholarship. According to Buckwald's chronology, that occurred on April 27, when she put down a deposit (see Aff. in Supp. Ex. I). It is not clear how the date on which Fang was informed of her acceptance into the College has any bearing on the question of her reliance.
CUNY's second argument, that the scholarship was offered Fang on condition that she submit a FAFSA, presents more complicated questions. There are, nevertheless, a number of problems with this contention that are fatal to defendant's motion.
First, as noted above, nowhere in this record is there any indication of how Ms. Fang was informed of the rules set forth on defendant's exhibit H, or how she was made to understand that these were the "terms" she accepted with her click on April 14, 2016.
The question of whether an agreement to accept the "terms" of an on-line contract is valid turns on the particular circumstances. Where "the supposed assent to terms is mostly passive, as it usually is online, courts seek to know whether a reasonably prudent offeree would be on notice of the term at issue, and whether the terms of the agreement were reasonably communicated to the user" ( Resorb Networks, Inc. v. YouNow.com , 51 Misc 3d 975, 980 [Sup Ct, NY County 2016] [citations and internal quotation marks omitted] ). For example, where the relevant terms are "buried at the bottom of a webpage or tucked away in obscure corners of the website," no constructive agreement to them will be presumed (id. at 981). Since defendant's motion says nothing about how the Program Rules were actually displayed or made accessible to Fang, or how she knew that those Rules were what she agreed to in denoting her acceptance, I have no basis to find that their presence somewhere on the MyChoice portal rebuts her claim of reasonable reliance.
Further, even were I to find that she was informed of these terms, CUNY faces the problem that its own "Offer Letter" is in contradiction with this document. It states that Fang had received a scholarship; that the scholarship was based on merit (i.e., not on financial need); and that she could obtain additional benefits by filing a FAFSA. There is absolutely nothing in the lengthy discussion of a FAFSA in this letter which remotely indicates that the scholarship offered in this correspondence was in any way contingent on the completion of this form.
As a result, CUNY has not succeeded in setting forth evidence of the absence of any issue of material fact.
Even were I to decide that defendant had presented a prima facie case, I would find that claimant's submission was sufficient to rebut it. In particular, she states that she made CUNY aware of her citizenship status in her application for Macaulay, and CUNY informed her in any case that she had been admitted. Remarkably, it appears from the log appended to defendant's motion as Exhibit D that Hunter had at its disposal a readily available means to identify and communicate with those who lacked a Social Security number, yet it informed them along with other Sage Scholars that they were to receive merit-based assistance, without making any specific effort to reveal to those ineligible that the stated award was unattainable. But no matter — it is CUNY's apparent position that because Rule 14 on the Program Rules accessible somewhere on the web portal said they had to file a FAFSA, any 18-year-old should have been able to intuit from this statement that the scholarship rolled out to them with great fanfare was never theirs to be had. It was available only to citizens, although CUNY never bothered to say so. Not to put too fine a point on it, but that contention is not remotely persuasive.
Given the foregoing, and drawing all inferences in claimant's favor as I must on this motion, on the present record I find the argument that Fang could not have reasonably relied on CUNY's letter specifically promising her a scholarship to be without merit.
CUNY's remaining arguments also do not demonstrate its entitlement to summary judgment. It contends that claimant has suffered no damages, because "in exchange for the tuition that she paid, she was provided an excellent education" (Aff. in Supp. ¶ 41). By that logic, someone who is promised the right to purchase a car for $4000 less than the amount ultimately charged has no basis for complaint, because she still got the car. There is no such principal which would deny claimant a promised benefit so long as defendant gave her something of value. The alleged promise here was not simply to give Fang a place at CUNY, but to grant her a scholarship if she chose to attend. At the very least, there is a question of material fact as to whether defendant made and broke that promise in a manner that is legally actionable.
Finally, defendant presents no law which would require claimant to specify each alternative she had to the CUNY scholarship in order to defeat this motion, and I am unable to find any.
Accordingly, defendant's motion is denied.
As a result, I direct that the parties appear for trial on November 15, 2017 at 10:30 a.m. at the Court of Claims, 10th Floor, 26 Broadway, Courtroom A. The parties must bring all witnesses and documentary evidence they wish to have considered or they may be barred from introducing them into evidence. Defendant shall have present someone with authority to negotiate a settlement. In the event either party is unable to appear on that date, they must inform the Court in writing on or before October 16, 2017, and propose three alternative dates and times that the party will be available for trial in November or December 2017.
Papers Considered:
1. Defendant's Notice of Motion, dated May 30, 2017, Affirmation in Support and Exhibits A through N annexed thereto;
2. Claimant's Response to Motion;
3. Defendant's Reply Affirmation, dated June 22, 2017; and
4. Defendant's Document Production, dated May 19, 2017, with Exhibit A annexed thereto.