Opinion
# 2021-015-044 Claim No. 135251 Motion No. M-96325
04-29-2021
MICHELLE PINKNEY and MICHAEL KENNEDY, on behalf of themselves and all others similarly situated v. STATE OF NEW YORK
Bursor & Fisher, P.A. By: Joseph I. Marchese, Esq. By: Max S. Roberts, Esq. Honorable Letitia James, Attorney General By: Erica V. Pritchard, Esq., Assistant Attorney General
Synopsis
Defendant's motion for dismissal of the claim alleging damages for SUNY's decision to transition to online teaching for the Spring 2021 semester due to the COVID19 Pandemic was granted and the claim was dismissed. To the extent the claim alleged a putative class action on behalf of unnamed claimants, it failed to meet the jurisdictional pleading requirements of Court of Claims Act § 11 (b). In addition, the claim failed to set forth promises for in-person instruction that were sufficiently specific to require reparation if the benefit were lost.
Case information
| UID: | 2021-015-044 |
| Claimant(s): | MICHELLE PINKNEY and MICHAEL KENNEDY, on behalf of themselves and all others similarly situated |
| Claimant short name: | Pinkney and Kennedy |
| Footnote (claimant name) : | |
| Defendant(s): | STATE OF NEW YORK |
| Footnote (defendant name) : | The caption has been amended sua sponte to reflect the only properly named defendant. |
|---|---|
| Third-party claimant(s): | |
| Third-party defendant(s): | |
| Claim number(s): | 135251 |
| Motion number(s): | M-96325 |
| Cross-motion number(s): | |
| Judge: | FRANCIS T. COLLINS |
| Claimant's attorney: | Bursor & Fisher, P.A. By: Joseph I. Marchese, Esq. By: Max S. Roberts, Esq. |
| Defendant's attorney: | Honorable Letitia James, Attorney General By: Erica V. Pritchard, Esq., Assistant Attorney General |
| Third-party defendant's attorney: | |
| Signature date: | April 29, 2021 |
| City: | Saratoga Springs |
| Comments: | |
| Official citation: | |
| Appellate results: | |
| See also (multicaptioned case) |
Decision
Claimants Michelle Pinkney (Pinkney) and Michael Kennedy (Kennedy) bring this class action on behalf of themselves and all those similarly situated seeking pro-rata refunds of the tuition and fees paid to the State University of New York (SUNY) and the State University of New York at Albany for in-class instruction and an on-campus experience they did not receive after campus closures caused by the Corona-19 pandemic. In this pre-answer dismissal motion, defendant moves to dismiss the claim pursuant to CPLR 3211 (a) (2) and (7) on the grounds it fails to state a cause of action and to meet the pleading requirements of Court of Claims Act § 11 (b).
Claimants allege that in consideration for the payment of tuition and fees the defendant agreed to provide in-person educational services, experiences and related services to Kennedy and the putative class in accordance with promises made in defendant's various publications. Kennedy allegedly paid approximately $2,500 in tuition and fees to defendant for the 2020 Spring Semester. Pinkney, Kennedy's mother, allegedly paid $3,535 in tuition for the Spring Semester 2020, none of which has been refunded (see defendant's Exhibit A, Claim, ¶ 22). Both allege causes of action for breach of contract, unjust enrichment and money had and received.
Claimants withdrew their conversion cause of action.
The first publication claimants rely upon in support of their various breach of contract and quasi-contract causes of action is SUNY Albany's Course Catalog setting forth the courses offered and the instructor, days and times during which the courses would be held, and their locations (id. at ¶ 7). Kennedy's Spring 2020 semester schedule allegedly shows that the classes in which he enrolled were all in-person classes (id. at 24). According to the claim, the Course Catalog allows students to perform on-line searches for classes based upon whether the class is "Only NON-Fully Online Courses" or "Fully Online Courses" (id. at ¶ 8). In addition, it is alleged that the Academic Policies inform students that they " 'are expected to attend all classes and all examinations,' " and that " 'Faculty have the prerogative of developing an attendance policy whereby attendance and/or participation is part of the grade' " (id. at ¶ 9). Claimants also allege in the claim that SUNY Albany's Faculty Handbook provides that instructors " 'are responsible for meeting their classes regularly and at scheduled times according to the University calendar' " and instructors of online classes are required to "meet University standards for excellence in online teaching" (id. at ¶ 10). With respect to online classes and instructors, the Faculty Handbook allegedly states the following:
" 'Online courses offered by the University must meet University standards for excellence in online teaching. Faculty who have never taught online must consult with staff from ITLAL or ITS Educational Technology Center (ETC) and participate in a program in instructional design and online pedagogical approaches before offering an online course. Faculty who wish to initiate an online course should contact teachonline@albany.edu or fill out [a provided form]' " (id. at ¶ 10, quoting Faculty Handbook at p. 27).
Claimants allege that SUNY Albany's Spring 2020 semester commenced January 22, 2020 and although it was not scheduled to conclude until May 13, 2020, Governor Cuomo announced on March 11, 2020 that classes in all SUNY schools were suspended for one week beginning March 12, 2020 as a result of the COVID-19 pandemic, and that all SUNY schools would hold classes online beginning March 19, 2020 for the remainder of the semester (id. at ¶¶ 11,12). Claimants allege this in effect lengthened spring break by one week and deprived students of class instruction that defendants agreed to provide because the academic year was not proportionately extended (id. at ¶¶ 13, 14).
Apart from the one-week closure, claimants also allege the defendant deprived them and the putative class of educational services, facilities, access and/or opportunities:
"The online learning options provided to students of SUNY Schools were subpar in practically every aspect, from the lack of facilities, materials, and access to faculty. Students were deprived of the opportunity for collaborative learning and in-person dialogue, feedback, and critique. The remote learning options were in no way the equivalent of the in-person education that Claimants and the putative class members contracted and paid for" (id. at ¶ 17; see also id. at ¶¶ 43,44).
Claimants allege that for approximately 50% of the Spring 2020 semester, SUNY schools did not provide in-person education. Inasmuch as claimants enrolled in an in-person educational experience which they did not receive for approximately one-half of the semester, claimants "seek, for themselves and Class members, Defendants' disgorgement of the pro-rated portion of tuition and fees, proportionate to the amount of time that remained in the Spring Semester 2020 when classes moved online, and campus services ceased being provided" (id. at ¶ 21; see also ¶ 46). It is further alleged that none of the classes Kennedy signed up for were online classes and he therefore allegedly lost the benefit of "in-person instruction, meaningful student presentations, peer collaboration, and access to university facilities, including laboratory equipment" (Claim, ¶ 21).
With respect to fees, claimants allegedly paid the following: (i) comprehensive service fee - $696.50; (ii) intercollegiate athletics fee - $307.50; (iii) academic excellence fee- $262.50; (iv) recreation and campus life fee - $104.00; (v) student activity fee - $110; (vi) additional biology fee - $45; (vii) student-alumni partnership fee- $30 (id. at ¶ 23). Claimants allege that none of the fees paid have been refunded.
With certain limited exclusions, claimants seek to represent a class which they define as "all people who paid SUNY Schools Spring Semester 2020 tuition and/or fees for in-person educational services that SUNY Schools failed to provide, and whose tuition and fees have not been refunded (the 'Class')" (id. at ¶ 47).
Defendant initially seeks dismissal of the claim on the ground the failure to name all individual members of the putative class, together with the required particulars relating to these individuals (time when and place where the claim arose, the items of damage sustained by the putative class members) runs afoul of the pleading requirements of Court of Claims Act § 11 (b).
Section 11 (b) of the Court of Claims Act requires that a claim state "the time when and the place where such claim arose, the nature of same, the items of damage or injuries claimed to have been sustained and, except in an action to recover damages for personal injury, medical, dental or podiatric malpractice or wrongful death, the total sum claimed." Although the State waived its immunity from liability "and consent[ed] to have the same determined in accordance with the same rules of law as applied to actions in the supreme court against individuals or corporations," waiver is expressly conditioned upon compliance with the limitations set forth in Article II of the Court of Claims Act (Court of Claims Act § 8), including the pleading requirements contained in § 11 (b), which are "substantive conditions upon the State's waiver of sovereign immunity" (Kolnacki v State of New York, 8 NY3d 277, 280 [2007], rearg denied 8 NY3d 994 [2007], quoting Lepkowski v State of New York, 1 NY3d 201, 207 [2003]; see also Kobrin v State of New York, 144 AD3d 1542 [4th Dept 2016]; Sommer v State of New York, 131 AD3d 757, 758 [3d Dept 2015]; Morra v State of New York, 107 AD3d 1115, 1116 [3d Dept 2013]). Since the statutory requirements of the Court of Claims Act must be strictly construed (Lepkowski v State of New York, 1 NY3d at 206-207; Young v State of New York (Univ. Hosp. of Brooklyn-Downstate Med. Ctr.), 82 AD3d 972, 973 [2d Dept 2011]), the failure to fulfill any one of the § 11 (b) pleading requirements constitutes a jurisdictional defect requiring dismissal.
Although class actions are not prohibited in the Court of Claims, it is the general consensus among Court of Claims judges that each member of the putative class must be identified in the claim (Batthany v The State of New York, Ct Cl, May 5, 2014, Milano, J., claim No. 116758, UID No. 2014-041-029; Matter of Arroyo v State of New York, 12 Misc 3d 1197 [A], 2006 NY Slip Op 51606[U] [Ct Cl, 2006]; Woolley v The State of New York, Ct Cl, July 2, 2001, Collins, J., claim No. 103781, UID No. 2001-015-160, affirmed 299 AD2d 699 [3d Dept 2002]; but see Bertoldi v State of New York, 164 Misc 2d 581 [Ct Cl, 1995]). In addition, at least two appellate division cases address the issue. In Brown v State of New York (250 AD2d 314 [3d Dept 1998]) the Appellate Division, Third Department, found that claimants satisfied the requisite criteria for class certification because the putative class members, who were not named in the claim, had filed notices of intention which were treated as claims pursuant to Court of Claims Act § 10 (8). Thus, the requirements of Court of Claims Act § 11 (b) were met because the particulars for each of the putative class members were alleged.
In Weaver v State of New York (82 AD3d 878 [2d Dept 2011], lv dismissed 17 NY3d 778 [2011], and lv denied 19 NY3d 804 [2012]), the Appellate Division, Second Department held that "class actions brought in the Court of Claims must satisfy all of the jurisdictional requirements set forth in section 11 (b) and that each member must be a named claimant in a filed claim" (id. at 879; see also). While claimants contend that dismissal of the class claims at this point is premature because they have not yet moved for class certification (see CPLR 902), the Court need not await a class certification motion inasmuch as the failure to name all class members is a jurisdictional defect appropriately addressed in a motion pursuant to CPLR 3211 (a) (2) (see Weaver, supra) and nothing in CPLR article 9 requires a different result. Accordingly, the claim is dismissed to the extent it includes putative class members.
The Court will now address the issue of whether the individual claims of Pinckney and Kennedy state a cause of action. "When assessing whether a complaint states a cause of action for purposes of a motion to dismiss pursuant to CPLR 3211(a)(7), 'the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference' " (Tenney v Hodgson Russ, LLP, 97 AD3d 1089, 1090 [3d Dept 2012, quoting Simkin v Blank, 19 NY3d 46, 52 [2012]).
When a university accepts a student for admission, it is implied that the university must award him or her a degree if the student complies with the terms prescribed by the institution (Matter of Carr v St. John's Univ., N.Y.,17 AD2d 632, 633 [2d Dept 1962], affirmed 12 NY2d 802 [1962]; Jones v Trustees of Union Coll., 92 AD3d 997 [3d Dept 2012]; Baldridge v State of New York, 293 AD2d 941 [3d Dept 2002], lv denied 98 NY2d 608 [2002]; Papelino v Albany College of Pharmacy of Union Univ., 633 F3d 81 [2d Cir 2011]). Although the rights and obligations set forth in a university's bulletins become part of the contract (Prusack v State of New York, 117 AD2d 729 [2d Dept 1986]), "only specific promises 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" (Keefe v New York Law School, 71 AD3d 569, 570 [1st Dept 2010]; see also Downey v Schneider, 23 AD3d 514, 516 [2d Dept 2005]["the terms of the contract are set forth, for the most part, in the institution's catalogue and other publications"]; Vought v Teachers Coll., Columbia Univ., 127 AD2d 654, 655 [2d Dept 1987]["The rights and obligations of the parties as contained in the university's bulletins, circulars and regulations made available to the student, become a part of this contract"]). The specificity requirement is consistent with public policy against judicial interference in matters relating to the control and management of educational institutions (see generally Matter of Susan M. v New York Law School, 76 NY2d 241 [1990]; Hoffman v Board of Educ. of City of N.Y., 49 NY2d 121 [1979]). Cases in which students sought the return of tuition and fees arising from mandated closures brought about by the COVID-19 pandemic provide guidance on the degree of specificity necessary to state a breach of contract cause of action.
In Bergeron v Rochester Inst. of Tech. (US Dist Ct, WD NY, 20-CV-6283, 2020 WL 7486682, Siragusa, J., 2020) it was alleged that the college offered "both in-person, hands-on programs, and fully online distance learning programs," which it markets and prices as separate and distinct products (id. at *1). The college also promoted "face-to-face interaction with professors, mentors, and peers" and promised to provide "undergraduates the opportunity to work directly with faculty members in their labs to investigate, explore and . . . learn hands-on skills that become the foundation of scientific research" (id.). In addition, the court noted that the college's publications were full of references to the on-campus experience, student activities, campus amenities, class size, etc. Lastly, the college promised students access to "some of the finest laboratories, technology and computing facilities available on any university campus" as well as offering a post office, laundry rooms, game rooms and a fitness facility (id. at *2). The Court found these allegations sufficiently specific to support a claim for breach of contract (see also Ford v Rensselaer Polytechnic Inst., US Dist Ct, ND NY, 1:20-CV-470, 2020 WL 7389155, Hurd, J., 2020 [allegations were sufficiently specific where RPI claimed in its college Plan that it "will . . . [o]ffer a complete college experience", that its program is designed to improve counseling, academic skills, and other benefits that "originate with the residential setting" and because the program is "built around a time-based clustering and residential commons program" all first and second year students were required to live on campus]; Metzner v Quinnipiac Univ., US Dist Ct, 3:20-cv-00784, 2021 WL 1146922, Dooley, J., 2021 at *10, [College Bulletin and website touted such features as "state-of the-art facilities," "outdoor spaces," "classroom and immersive experiential learning" and the "beauty of New England").
Claimants specifically exclude from the class "Defendants, Defendants' officers, directors, agents, trustees, parents, children, corporations, trusts, representatives, employees, principals, servants, partners, joint ventures, or entities controlled by Defendants, and their heirs, successors, assigns, or other persons or entities related to or affiliated with Defendants and/or Defendants' officers and/or directors, the judge assigned to this action, and any member of the judge's immediate family" (claim, ¶ 47).
Claimant indicated in opposition to defendant's motion that pre-certification discovery should be permitted to ascertain the identity and particulars relevant to the individual class members, citing Desrosiers v Perry Ellis Menswear, LLC (30 NY3d 488 [2017]). Desrosiers dealt only with whether or not pre-certification notice to putative class members is required for a proposed dismissal, discontinuance, or compromise. It did not alter the jurisdictional limitations of the Court of Claims Act or otherwise affect the long held proposition that a jurisdictionally defective claim may not be cured by amendment (Hogan v State of New York, 59 AD3d 754 [3d Dept 2009]).
Cases in which college publications were insufficiently specific to support a breach of contract claim include Morales v New York Univ. (US Dist, SD NY, 20 Civ 4418, Daniels, J., 2021) in which the university's Course Catalog identified the building and room number for each listed course and permitted searches based upon whether the class was in person or online; Zagoria v New York Univ. (US Dist Ct, SD NY, 20 Civ 3610, Daniels, J., 2021) where the college touted " 'direct engagement with industry through the nation's leading conferences, regular speakers, internships and more' " and that the course work would include visits to Paris and Amsterdam; and Hassan v Fordham Univ. (US Dist, SD NY, 20-CV-3265, 2021 WL 1263136, Wood, J., 2021) in which the course catalog identified courses offered as well as times, instructors and locations.
Here, assuming the allegations contained in the claim are true and affording the claimants the benefit of every favorable inference, the claim fails to state a breach of contract cause of action. Like the facts in Morales (US Ct, SD NY, 20 Civ 4418, Daniels, J., 2021) and Hassan (US Dist Ct, SD NY, 20-CV-3265, 2021 WL 1263136, Wood, J., 2021) claimants' allegation that the course catalog stated the days, times and locations of classes is insufficiently specific to support a claim for breach of an implied contract to provide only in-person instruction. Nor does the reference to "Only NON-Fully Online Course" classes in the Course Catalog search bar constitute a specific promise of in-person instruction. First, this search mechanism does not rule out partial on-line courses. Moreover, the Court in Zagoria made clear that "breach of contract actions between a student and university 'must be grounded in a text' " and "the presentation of different instruction options is not an express promise that NYU will be limited in the future from changing instruction modalities" (Zagoria, at * 9).
Claimants' allegations referencing the Academic Policies of informing students that they are "expected to attend all classes and examinations" and that "Faculty have the prerogative of developing an attendance policy whereby attendance and/or participation is part of the grade" (defendant's Exhibit A, claim, ¶ 9) similarly falls short of constituting specific promises for in-person classes. These same statements apply equally to on-line classes and are, therefore, too general and vague to support a claim for breach of a promise of in-person instruction. For these same reasons the statements in the Faculty Handbook indicating that instructors "are responsible for meeting their classes regularly and at scheduled times according to the University calendar" and that online classes "must meet University standards for excellence in online teaching" are too vague to constitute enforceable promises (id. at ¶ 10).
To the extent the claim seeks reimbursement for the one-week closure which occurred on account of the COVID-19 pandemic, the claimants do not allege Kennedy's entitlement to a degree was compromised or otherwise delayed. Inasmuch as "the services rendered by [a] university cannot be measured by the time spent in a classroom. . . . [t]he insubstantial change made in the schedule of classes does not permit recovery of tuition" (Paynter v New York Univ., 66 Misc 2d 92 [App Term 1st Dept 1971]).
Lastly, the references to campus life contained in SUNY Albany's marketing materials (defendant's Exhibit A, claim, ¶ 41) are either overly vague or nothing more than "opinion or puffery" which are insufficiently specific to constitute an actionable promise (Bader v Siegel, 238 AD2d 272 [1997]; see also In Re Columbia Tuition Refund Action v Pace Univ., US Ct, SD NY, 20-CV-3208, 2021 WL 790638, Furman, J., 2021 at * 3). As such, no cause of action is stated for breach of contract with respect to the tuition payments.
A similar conclusion is reached with respect to fees. No facts are alleged from which the Court may discern that the fees charged were for services provided exclusively on campus (see Morales v New York Univ., US Dist Ct, SD NY, 20-CV-4418, Daniels, J., 2021 at * 3; cf. Hassan v Fordham Univ., US Dist Ct, SD NY, 20-CV-3265, 2021 WL 1263136, Wood, J., 2021 at *3 [claimants alleged in a proposed amended complaint that the technology fee was directly related to promises made by Fordham to provide students with on-campus computing and that on one particular campus "[w]hen classes are not in session, most of these [computer] labs are open to all members of the University community with a valid ID"]). Equally likely is the conclusion that the fees charged were to support certain services throughout the year, regardless of whether or not classes were intended exclusively for online or in-person instruction (see Bahrani v Northeastern Univ., US Dist Ct, D MA, 20-10946-RGS, 2020 WL 7774292, Stearns, J., 2020 at *3). Claimants therefore failed to allege facts sufficient to support a breach of contract action for reimbursement of fees.
The Court now turns to claimants' quasi-contractual causes of action alleging claims for unjust enrichment and for money had and received. With respect to unjust enrichment, the Court of Appeals in Mandarin Trading Ltd. v Wildenstein (16 NY3d 173, 182 [2011]) succinctly set forth the elements of such a cause of action, stating:
" 'The essential inquiry in any action for unjust enrichment . . . is whether it is against equity and good conscience to permit the defendant to retain what is sought to be recovered' (Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421 [1972]). A plaintiff must show 'that (1) the other party was enriched, (2) at that party's expense, and (3) that "it is against equity and good conscience to permit [the other party] to retain what is sought to be recovered" ' " (Citibank, N.A. v Walker, 12 AD3d 480, 481 [2d Dept 2004]; Baron v Pfizer, Inc., 42 AD3d 627, 629-630 [3d Dept 2007]).
The mere fact that a benefit is bestowed is insufficient (Goel v Ramachandran, 111 AD3d 783,791 [2d Dept 2013]; Clark v Daby, 300 AD2d 732, 732 [3d Dept 2002], lv denied 100 NY2d 503 [2003]). "Generally, courts will look to see if a benefit has been conferred on the defendant under mistake of fact or law, if the benefit still remains with the defendant, if there has been otherwise a change of position by the defendant, and whether the defendant's conduct was tortious or fraudulent" (Paramount Film Distrib. Corp. v State of New York, 30 NY2d 415, 421 [1972], citing Restatement, Restitution, ss 1, 142, esp. Comment b; id., s 155, including Comment b; see also Schoch v Lake Champlain OB-GYN, P.C., 184 AD3d 338, 344 [3d Dept 2020], lv granted 35 NY3d 918 [2020]). Here, it is not alleged that the defendant's conduct was tortious or fraudulent. Nor are there specific factual allegations that the enrichment was inequitable or unjust. As stated previously, claimants failed to plead specific facts indicating that either tuition or fees were directly related to in-person educational services (see Hassan v Fordham Univ., Dist Ct, SD NY, 20-CV-3265, 2021 WL 1263136, Wood, J., 2021 at *11). Consequently, claimants failed to state a cause of action for unjust enrichment.
For similar reasons claimant's cause of action for money had and received also fails to state a cause of action. A claim for money had and received is "an obligation which the law creates in the absence of agreement when one party possesses money that in equity and good conscience he ought not to retain and that belongs to another" (Parsa v State of New York, 64 NY2d 143, 148, [1984], rearg denied 64 NY2d 885 [1985]). " 'The remedy is available if one [person] has obtained money from another, through the medium of oppression, imposition, extortion or deceit, or by the commission of a trespass' " (OneWest Bank, FSB v Deutsche Bank Natl. Trust Co., 186 AD3d 92 [1st Dept 2020], lv denied 35 NY3d 917 [2020], quoting Parsa at 148). None of the circumstances supporting a cause of action for money had and received are alleged as a basis for the claim in this case. It is not alleged that the defendant obtained claimants' money through deceit or wrongdoing and, as indicated previously, there exists no clear expression in the defendant's catalogs or brochures that tuition or fees were intended exclusively for, or in connection with, in-person instruction. Accordingly, the cause of action for money had and received fails to state a cause of action. Based on the foregoing, defendant's motion is granted and the claim is dismissed.
April 29, 2021
Saratoga Springs, New York
FRANCIS T. COLLINS
Judge of the Court of Claims Papers Considered:
1. Notice of Motion, dated December 9, 2020; 2. Affirmation of Erica V. Pritchard, Esq., dated December 9, 2020, with exhibits; 3. Defendant's memorandum of law, dated December 9, 2020; 4. Affirmation of Joseph I. Marchese, Esq., dated February 23, 2021, with Exhibits A-X; 5. Claimants' memorandum of law, dated February 23, 2021; 6. Reply affirmation of Erica V. Pritchard, Esq., dated March 15, 2021; 7. Reply memorandum of law, dated March 15, 2021; 8. Affirmation of Janet M. Thayer, Esq., dated March 15, 2021.