Yodice v. Touro College, 2021 WL 5140058, No. 21cv2026 (DLC)
(S.D.N.Y. Nov. 4, 2021)
It’s now been long enough that there are a couple of cases
finding potentially valid claims based on Covid closures, but this is not one
of them. Touro allegedly promoted its campus facilities and campus experience
as part of the benefits of its non-online-only degree programs, including “New
York Medical College research facilities, an anatomy lab, a simulation training
center, classrooms and auditoriums, as well many amenities including a
cafeteria and café, a bookstore, a Health Sciences Library, sports facilities,
and many common spaces”; it promoted “Suburban Living with Easy Access to New
York City”; etc. The mandatory fees that Yodice paid included, among others, a
“Campus Fee,” “Tech Fee,” and “Materials Fee.” Touro’s online program was
allegedly marketed and priced as a “separate and distinct product[ ]” and bore
no fees for in-person services.
Because of the NY governor’s orders closing schools, Yodice
was “forced from campus” and did not have access to “facilities such as
libraries, laboratories, computer labs, and student rooms,” “the myriad of
activities offered by campus life,” and “networking for future careers.”
Breach of contract: The complaint failed to allege specific
promises sufficient to form an implied contract to provide on-campus services.
It didn’t identify any specific promise to provide live, in-person instruction.
Past practice of providing in-person
instruction wasn’t a promise to continue to do so, nor was listing classes with
meeting times and locations. Likewise, “[t]hat an online program had been
offered by Touro with its own format and with a lower tuition before the
pandemic does not constitute an implicit promise that TCDM would provide
exclusively in-person instruction in a separate program it offered prospective
So too with claims based on fees; the complaint didn’t
explain which services were connected to specific fees or whether related
academic or extracurricular services were subsequently unavailable to Yodice.
Unjust enrichment: Unlike some treatments of this type of
claim, the opinion here dismissed unjust enrichment as duplicative of the
breach of contract claim. “Yodice cannot fill this gap [in pleading relevant
contractual provisions] through pleading an unjust enrichment claim as an
alternative route of recovery.” With an actual contract to interpret,
quasi-contract theories were inappropriate.
N.Y. General Business Law §§ 349, 350: No materially
misleading act or omission was pled. “No reasonable consumer would be misled
into believing that, in the event of a global pandemic and under government
shutdown orders, TCDM would remain open to deliver in-person instruction to students.”
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