Booth v Molloy Coll.

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Booth v Molloy Coll. 2022 NY Slip Op 34476(U) December 12, 2022 Supreme Court, Nassau County Docket Number: Index No. 608750/2020 Judge: Thomas Rademaker Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. INDEX INDEX NO. NO. 608750/2020 608750/2020 FILED: NASSAU COUNTY CLERK 12/13/2022 12:17 PM NYSCEF DOC. DOC. NO. NO. 122 RECEIVED NYSCEF: NYSCEF: 12/12/2022 SUPRElVIE COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU Present: HON. THOMAS RADEMAKER, J.S.C. MADDISON BOOTH, on behalf of herselfand all others similarly situated, Plaintiffs, Index No: 608750/2020 DECISION AND OR.DER against Motion Sequence: 00~ Submitted: 10/25/2022 MOLLOY COLLEGE, Defendant. UPON DUE DELIBERATION AND CONSIDERATION BY THE COURT of the foregoing papers, including e-filed docurnents/exhibits numbered 74 through and including 121, this motion is de:c:icled ·@S follows: The Plaintiff, Maddison Booth, .on behalf of herself and others similarly situated moves by Notice of Motion for an Order: (i) certifying this action as a class action; (ii) designating Leeds Brown Law, P ;C. as Class Counsel; (iii) approvingfot publication the proposed Notice of Class Action Lawsuit and FERPA Disclosures. (iv) endorsing the proposed Publication Order; (v) granting the parties additional time to complete post-class certification discovery. the Defendant opposes this motion. Qij August 2 l,. 2020, the Plaintiff filed this action against the Defendant for breach of contract, unjust enrichment, and conversion and theft of prop~rty, both in her individual capacity and. on behalf of the m,ei:nbi:m: of a ~hnilar~y situated c1ass. The dass that Plaintiff seeks to represent.are "[a] 11 persons who .paid tuition and/or mandatory fees for a student to .attend [* 1] 1 of 88 in- INDEX INDEX NO. NO. 608750/2020 608750/2020 FILED: NASSAU COUNTY CLERK 12/13/2022 12:17 PM NYSCEF DOC. DOC. NO. NO. 122 RECEIVED NYSCEF: NYSCEF: 12/12/2022 person class(es) during the semester affected by COVID ~19 at Molloy College; including the Spring 2020 and Summer 2020 semesters, but had their classes and educational experience moved to only online learning. On January 15, 2021, Defendant filed its Motion to Dismiss Plaintiffs' Amended Complaint. Subsequently, the Court issued aDecisfon and Order denying.Defendant's Motion to . . Dismiss. (Booth v; Molloy College, August 10, 2021, Sup. Ct., Nassau County, Rademaker, J. Index No. 608750/2020, 111ot seq 001, 002). On June 27, 2022, Plaintiffs and Defendant filed their Stipulation on the proposed discovery schedule stipulating a bifurcated discovery schedule. The parties agreed to complete pre"'class certification discovery on m before June 2, 2022 and Plaintiffs agreed to move for class certification on or before July29; 2022. Accordingtothe briefing schedule agreed upon by the parties, the Defendant was to file its Opposition to Plaintiffs' motion on or before September 14, 2022. The Plaintiffs in turn were to file their reply in support of their class certification motion on or before ·September 3 0, 2022, with the remaining discovery to be conducted after the Court renders a decision to determine if certification ofthe class is appropriate; CPLR § 901 sets forth five prerequisites to class certification. One or more members ofa class may sue or be sued as representative parties on behalfof all if, r) the class is so nwnerous thatjoinder of all members, whether otherwise required or permitted, is impracticable; 2) there are questions of law or fact common to the class which predominate over any questions affecting only individual members; 3)the claims or defenses ofihe representative parties are_ typical ofthe claims or defenses of the. ciass; 4) the re:presentative part1es will fairly and adequately protect the interests ofthe. claSs; and 5) a class action is superior to other available methods for the fair and effident adjudication of the controversy. [* 2] (CPLR § 901[a] _________________ ·-· .... .2. 2 of 88 .... (CorumL, Lexis.Advance through 2022 INDEX INDEX NO. NO. 608750/2020 608750/2020 FILED: NASSAU COUNTY CLERK 12/13/2022 12:17 PM NYSCEF DOC. DOC. NO. NO. 122 RECEIVED NYSCEF: NYSCEF: 12/12/2022 released Chapters 1-642). "These factors are commonly referred to as the requirements of nurrterosity; commonality; typicality; adequacy' of representation and superiority11 (Moreno v Future Health Care Setvs., Inc., 186 AD3d 594, 595-596 [2d Dept 2020] citing to City of New York v Maul, 14 NY3d 499,508 [2010]). In deciding whetht!r to certify a class, "a court must be mindful of [the Appellate Division's] holding that the class certification statute should be liberally construed." (Kudinov v.Kel-Tech Construction Inc., 65 A.D.3d 481, 481 [1st Dept. 2009] citing Englade v. Harper Collins Pubis., Toe,, 289 A.D.2d I59, 159 [1st Dept. 2001]; see also Bordenv.400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382, 393.;94 [2014]; Pruitt v. Rockefeller Center Properties, Inc;, 167 A.D.2d 14, 21 [1st Dept. 1991] ["[a]ppellate courts in this state have repeatedly held that the class action statute should be liberally construed ... any ertor,ifthere is to be one, should be ... in favor of allowing the class action';] see also Friat v. Vanguard Holding Corp., 78 A.D,2d 83, 90-92, [2d Dept. 1980]; Galdamez v, Biordi Construction Corp,; 13 Misc. 3d 1224[A] [Sup. Ct. N.Y. Cty. 2006], affd 50 A.D.3d 357 [1st Dept. 2008]; Pajaczek v. Cerna Const. Corp;, 859 N:Y.S.2d 897 [Sup. Ct. N.Y, Cty. 2008] citing Brandon v'. Chefetz, 106 A.D.2d 162 [1st Dept. 1985]; see also Stecko v. RLI Ins. Co., 121 A.D.Jd 542 (1st Dept. 2014). The fundamental issue is whether the proposed class action asserts a commort legal grievance and if common issues predominate over or outweigh the subordinate issues that pertain toJndividual members of the class; (Geiger v. Amer. Tobacco Co., 181 Misc.2d 875, 883 [Sup. Ct. Queens Cty; 1999] quoting 3 Weinstein Korn-Miller, N.Y. Civil Practice § 90L 11); see also Pesantez,. 25 LAJi2d at 11 citing Pruitt, i6 7 A.D .2d at 14). The Defendant is.a private college that offers numerous. major fields for undergraduate arid· graduate .students, The. College is located in Nassau ·Cou,nty, New York. According. to the. [* 3] 8 L.8-----------------------. .3 3of .o FILED: NASSAU COUNTY CLERK 12/13/2022 12:17 PM NYSCEF DOC. DOC. NO. NO. 122 INDEX INDEX NO. NO. 608750/2020 608750/2020 RECEIVED NYSCEF: NYSCEF: 12/12/2022 Plaintiff, yearly tuition at the college costs "$15,665 for undergraduate students1' plus additional. mandatory fees. These additional fees include a graduation application fee of about $220, class fees of various amounts, a student activities fee of .$100, a technology fee of approximately $260, and various other fees. For the Spring 2020 semester; Plaintiff allegedly paid about $15,665 in tuition and $1,011 in tnandatory fees. Plaintiff contends that Defendant retained the full amount of tuition and fees, despite being able to provide students, like Plaintiff, with the in~person opportunities that Plaintiff bargained for, contracted for, and then paid for. Plaintiff claims the $15,665 and the additional student fees of more than $1,000 Were made in consideration for in-person and on-campus educational services. Plaintiff further contends that these proIT1ises can be found in Plaintiffs application materials, including marketing, advertisements, and other public representations. The Amended Complaint provides that the "College failed to off any refunds, provide any discounts,. or apply any credit to Plaintiffand class members' other semesters, "and the Plaintiff seeks a pro~rata refund of tuition and fees, on behalf of herself and a class of students who attended the College during the Spring2020 semester. Molloy College's Spring 2020 semester began on January 13, 2020. The first positive COVID~I9 case ofNassau County was announced on March 6. Oi1 March 7, 2020; Andrew Cuomo, Governor of New York, prornulgated Executive Order No. 202, which declared a state of emergency in New York with respect to the COVID-19 virus. On or around March IO, 2020, in response to .the COVID-19 pandemic, Defendant ci:mcelled all in-person education and transiti011ed to all online 1¢arning for tile remainder. of the semester and did. not provide in~petsori .and on-campµs. educational servic:es. ---------------·---····-························ ... 4.. . of..... 8 8.......·--······--···········-·················--······--···········-············-···--··· ·····-····························· [* 4] INDEX INDEX NO. NO. 608750/2020 608750/2020 FILED: NASSAU COUNTY CLERK 12/13/2022 12:17 PM NYSCEF DOC. DOC. NO. NO. 122 On March RECEIVED NYSCEF: NYSCEF: 12/12/2022 13, 2020, the President of the United States declared aNational Emergency in connection with the global pandemic. Pres. Proclamation No. 9994, 85 F.R. J 5337{March 13; 2020). On March 16, 2020, Governor Cuomo further ordered ''every school in the state of New York"to close by March 18,2020 fora period of2 Weeks. N.Y. ExecOrderNo. 202.4 (Mar. 16, 2020). On March 27, 2020, Govenior Cuomo issued an executive order extending the closure of all schools in New York State through May 15, 2020. N.Y. Exec. Order 202.18 {Apr. 16, 2020). Further, it was ordered oh May 7, 2020, through an executive order, that all New York State schools were to remain closed for the remainder of the school year. N.Y. Exec. Order 202.28 (May 7, 2020). After suspending all in-person classes and closing its residence halls, Defendant issued pro-rated refunds for room and board costs for the remainder of the semester. Students who were to graduate in the Spring 2020, were refunded half oftheit graduation application fee. However, the Plaintiff contends that the Defendant did not refund fees for those activities and services that were previously provided on an inperson basis, but were instead continued remotely~ Plaintiff alleges breach of contract, unjust enrichment, arid conversion and. theft of property against the Defendant. Plaintiff claims that she entered into a contract with the Defendant for "in person educational services, experiences, opportunities· and other related collegiate services." The Plairitiff further claims that the contract· between the Defendant and the students was breached when the De:fendant decided to cancel in-person classes and only offer onlihe instruction. The Defendant opposes certi:fication of the class and atgues that each class member entitled to a refund of some measure of tuition or additional fees is depends on the iµdividualized questions of whether students were aggrieved by remote learning and services. The Defendant [* 5] ·····················-····-···.5··-·DLJ3, 5 of 8_ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ _ __ FILED: NASSAU COUNTY CLERK 12/13/2022 12:17 PM NYSCEF DOC. DOC. NO. NO. 122 argues that it did not close INDEX INDEX NO. NO. 608750/2020 608750/2020 RECEIVED NYSCEF: NYSCEF: 12/12/2022 its doors and stop operating as many other businesses nationwide urtfortllJlately were· required to do, but rather created solutions that allowed students, including Plaintiff, to receive college credit for their course work and earn degrees. It is the Defendant's position that class, membership depends on whether or not Defendant failed tnprovide education and/or services or facilitiesthat·it was obligated to provide· under an agreement. The implied contract between a Student and a university consists ofspecific promises in the specific documents between them which will necessarily vary as individual students vary. The Defendant further argues that even assuming a uniform contract• was breached, class membership depends on whether each class member was aggrieved by the alleged breach to sustain the breach of contract claim. While a "straightforward'' damages calculation is pmffered, Plaintiff does not provide common proof that each· class..:member has. a valid claim, especially fo light offee refunds the Defendant contends it already provided. Further, the D~fendant contends that'the Plaintiff does not have standing to represent the alleged aggrieved class in that the Plaintiff will be unable to demonstrate that she of every class member personally paid for the tuition and fees at issue in the underlying claims. In Reply, the Plaintiff argues that Article 9 was intended to be a liberal procedural requirement to promote, rather than limit, chass actions. (See Borden v, 400 E. 55th St. Assoc., L.P., 24 N.Y.3d 382 [2014]; City of New York v. Maul, 14 N.Y.3d 499, 508-509 [2010]; Bloom v. Cunard. Line, Ltd., 76 A.D,2d. 237, 241 [1st Dept 1980]). As lil:>eral c:onstructio11 has. been rt}peatedly fo1:plemented by New York courts in deciding whethc;r to certify a cl.ass. (See·Friar v. Vanguard Holding Corp., 78 A.b.2d 83 1 90-92 [2d Dept. 1980]; Stecko v. RLI Ins. Co., 121 A.OJd 542 [ist Dept. 2014] [expressly rejecting the 'rigorous analysis' applied to class [* 6] 66 of 88 INDEX INDEX NO. NO. 608750/2020 608750/2020 FILED: NASSAU COUNTY CLERK 12/13/2022 12:17 PM NYSCEF DOC. DOC. NO. NO. 122 RECEIVED NYSCEF: NYSCEF: 12/12/2022 certification in federal courts]; Rutella V; NaCl Secs. Corp,;2022 N.Y. Misc; LEXIS 2311 [Sup. Ct. Nassau Cty., May 25, 2022] [J. Driscoll] denying summary judgment and granting class certificatltm While noting. "[t]he fact that Plaintiffs may have different levels of damages does not in itself defeat class certification"; see also Macaluso v. Woodbury lrtt'l, Inc., 2013 N.Y. Misc. LEXIS 7190 [Sup. Ct Nassau Cty., Sept. 9, 2013]]J. Diamond]). Upon. review of the papers submitted by the parties herein, including their supporting exhibits, and in the discretion of the Court, the Plaintiffs motion for class certification is . . .. GRANTED; and it is hereby ORDERED, that this matter is certified as a class action, and it. is further ORDERED, that Maddison Booth is approved as classrepresentatiye, and it is further ORDERED, that Leeds Brown Law, P;C, is designated as Class Counsel, and it is further ORDERED, the proposed Notice of Class Action LawsUit and FERPA disclosures, made part of the record herein as NYSCEF Doc No, 108 is approved, and the Plaintiff is hereby allowed to distribute notice to all class members in accordance with the proposed publication order, and it is further ORDERED, that the propqsed publication order made part of the record herein as NYSCEF Doc No. 109 is approved, and the Plaintiff is hereby directed to set:tle order upon notice pursuant to the CPLR and Uniform Court Rules the Publication Order for signature, and its further ORDERED, that the. parti~s have additional time to complete post-¢lass ·certification discovery, and the parties are direct.ed to submita Joint Discovery Stipulation to be so-ordered by the.Court on or.before january 9, 2023, and it is further [* 7] 7 of 88 FILED: NASSAU COUNTY CLERK 12/13/2022 12:17 PM NYSCEF DOC. DOC. NO. NO. 122 INDEX INDEX NO. NO. 608750/2020 608750/2020 RECEIVED NYSCEF: NYSCEF: 12/12/2022 ORDERED, that counsels are to appear for a status conforence on February 8, 2023, at 10:00a.m. The foregoing constitutes the Decision and Order of the Collit. Dated: Dece111ber 12, 2022 Mineola, N. Y. ENTERED Dec 13 2022 NASSAU COUNTY COUNTY CLERK"S OFFICE [* 8] 88 of 88

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