Enzinna v D'Youville Coll.

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[*1] Enzinna v D'Youville Coll. 2010 NY Slip Op 52432(U) Decided on June 8, 2010 Supreme Court, Erie County NeMoyer, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 8, 2010
Supreme Court, Erie County

Nicole M. Enzinna, AMY L. BORYNSKI-KURTZ, and HEATHER L. MAHLEY, Plaintiffs, .


D'Youville College, Defendant.


JEFFREY F. REINA, ESQ., for Plaintiffs

LINDA H. JOSEPH, ESQ., for Defendant

Patrick H. NeMoyer, J.

Plaintiffs are former students of defendant who graduated from defendant D'Youville College's Doctor of Chiropractic program in 2008 or 2009. Plaintiffs commenced this action against defendant by the filing of a summons and complaint on February 12, 2010. As of right (see CPLR 3025 [a]), plaintiffs have served a "First Amended Complaint" (amended complaint), which seeks to recover upwards of $100,000 for each plaintiff on the following six causes of action: 1) false advertising in violation of General Business Law § 350; 2) false and deceptive business practices in violation of General Business Law § 349; 3) breach of contract; 4) unjust enrichment; 5) promissory estoppel; and 6) negligent misrepresentation. The gravamen of each cause of action is that plaintiffs were induced to enroll in defendant's doctoral-degree program by its advertising and representations to the effect that students "who successfully completed the Program would be, among other things, eligible for licensure in all states, Washington D.C., Puerto Rico, the U.S. Virgin Islands, all Canadian Provinces and many foreign countries.' " The amended complaint further alleges that defendant was aware from the outset that such representation "was false" inasmuch as "the program was not recognized by a number of state licensing boards throughout the United States, including, but not limited to, California and North Carolina." It is further alleged that, despite such knowledge, defendant failed to inform the students of the truth, thereby preventing them "from making an informed decision on whether to remain in the Program, or to transfer to a different institution offering a Doctorate of Chiropractic Degree recognized for licensure in" such states. It is further alleged that other schools' programs would have been less expensive than defendant's program, which cost plaintiffs "at least $105,000 each in tuition, and at least $5,000 in related expenses."

Attached to the amended complaint is the pertinent page from defendant's brochure as it read at relevant times (it has since been changed, plaintiffs point out). Potentially problematic for plaintiffs is the fact that the language of the brochure differs somewhat from the language set forth in the amended complaint, as quoted supra. Whereas the amended complaint alleges that defendant falsely represented that program graduates would be "eligible for licensure in all states'," the brochure actually stated as follows:


"Students who complete D'Youville's doctor of chiropractic program are eligible for licensure examination in all states, Washington D.C., Puerto Rico, the U.S. Virgin Islands, all Canadian provinces, and many foreign countries. Some locations require specific pre-professional studies and/or a multi-part Physiotherapy and Practical Examination. Students are expected to contact the National Board of Chiropractic Examiners (NBCE) or the Federation of Chiropractic Licensing Board (FCLB) for full requirements for licensing in the location(s) in which they wish to practice, prior to application" (bold type and parenthetical material in original; italics supplied).

Before this Court are two motions by defendant. The first seeks an order granting a six-day extension of defendant's time to respond to the amended complaint. The Court will grant that relief, nunc pro tunc, as unopposed by plaintiffs.

Defendant's second motion seeks dismissal of the amended complaint in its entirety with [*2]prejudice pursuant to CPLR 3211 (a) (1) (5) and (7), i.e., based upon a defense founded upon documentary evidence, for untimeliness, or for failure to state a cause of action. Alternatively, defendant seeks summary judgment dismissing the amended complaint. The request for summary judgment is improper here, issue not having been joined in the action and plaintiff having specifically objected to such relief (see CPLR 3212 [a]; Pitts v City of Buffalo, 298 AD2d 1003, 1004 [4th Dept 2002]; Rine v Higgins, 244 AD2d 963, 964 [4th Dept 1997]; see also City of Rochester v Chiarella, 65 NY2d 92, 101 [1985]). That leaves the Court to determine which, if any, of plaintiffs' various causes of actions should be dismissed for untimeliness or failure to state a cause of action. Defendant's requests for dismissal are opposed by plaintiffs. On the basis of the parties' submissions, this Court renders the following determinations:

There is no merit to defendants' contention that five of six causes of action of the amended complaint all but the cause of action for breach of contract — are barred by the applicable statutes of limitations or by the equitable doctrine of laches. As far as the statute of limitations is concerned, defendant correctly notes that the causes of action for violation of the General Business Law are subject to a three-year limitations period running from the date of injury (see Gaidon v Guardian Life Insurance Co., 96 NY2d 201, 208-210 [2001]; Beller v William Penn Life Ins. Co. of New York, 8 AD3d 310, 314 [2d Dept 2004]; see also CPLR 214 [2]). Defendant errantly relies, however, on the fact that the representations sued upon were made in college catalogs issued in 2004 and 2005, when plaintiffs decided to enroll and commenced their studies at D'Youville. The amended complaint clearly alleges that the representations went uncorrected by defendant throughout plaintiffs' enrollment at D'Youville, which continued until the Spring of 2008 or 2009, respectively, within three years of commencement. Besides, the date or dates upon which the misrepresentations were made is or are not to be confused with the date of injury (see Gaidon, 96 NY2d at 211-212 [holding that plaintiffs suffered no measurable damage under the General Business Law until the point in time at which their commercial expectations were not met]; see also Beller, 8 AD3d at 312, 314). Here, any injury apparently followed plaintiffs' respective graduations, when they applied for licensure in California or North Carolina, which likewise occurred within three years prior to commencement. At the very earliest, plaintiffs' causes of action would have accrued upon their most recent payments of tuition to defendant, which probably would have occurred (the Court surmises) no earlier than the summer of 2007 in the instance of one plaintiff and the summer of 2008 in the case of the other two plaintiffs, in each instance within three years prior to commencement. A similar analysis governs plaintiff's claim for damages for negligent misrepresentation, which likewise is governed by a three-year limitations period running from the date of injury (see Colon v Banco Popular, N.A., 59 AD3d 300 [1st Dept 2009]; IFD Constr. Corp. v Corddry Carpenter Dietz and Zack, 253 AD2d 89, 92-93 [1st Dept 1999]).

With respect to plaintiff's causes of action for promissory estoppel and unjust enrichment, which defendants seem to mischaracterize as seeking equitable relief and to which they assert only the defense of laches,[FN1] the Court likewise concludes that those causes of action need not be [*3]dismissed. Laches is a function of a plaintiff's undue or inexcusable delay in suing and a defendant's detrimental change of position during the course of such delay or prejudice as a result of the untimely suit (see Dwyer v Mazzola, 171 AD2d 726, 727 [2d Dept 1991]; see generally 75 NY Jur 2d, Limitations and Laches, §§ 330, 333). As stated by the Court of Appeals in the analogous context of CPLR 3017 and 3025, "Prejudice ... is not found in the mere exposure of the defendant to greater liability. Instead, there must be some indication that the defendant has been hindered in the preparation of his case or has been prevented from taking some measure in support of his position" (Loomis v Civetta Corinno Constr. Corp., 54 NY2d 18, 23 [1981]). Defendant has made no such showing of prejudice in this case. In any event, the Court cannot conclude that plaintiffs unduly delayed in not suing until February 2010 on claims that did not arise until sometime after May 2008 or, in the case of two of the plaintiffs, sometime after May 2009.

The Court further concludes that the amended complaint does not fail to state a viable cause of action on any of the various theories pleaded by plaintiffs. The Court is somewhat concerned that, with regard to the representations allegedly made by defendant, the language of the amended complaint does not track that verbiage set out in the brochure appended to the amended complaint. It is fairly clear to this Court that omission of the word "examination" changes the meaning of the representation. The Court cannot say as a matter of law, however, that the inclusion or excision of that word changes the meaning of the representation to such an extent as to undermine the ultimate validity, let alone the colorability, of plaintiffs' allegations of wrongdoing. Given this Court's obligation to determine the sufficiency of the amended complaint in light of any evidentiary material supplied to rectify any deficiencies in the pleading (see Rovello v Orofino Realty Co., Inc., 40 NY2d 633, 635 [1976] [held: affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims]), this Court will simply construe the amended complaint as alleging that defendants falsely or deceptively represented, to plaintiffs' ultimate injury, that graduates of the program would be "eligible for licensure examination in all states." That allegation, which the Court must accept as true for the purposes of this motion (see Goldman v Metropolitan Life Ins. Co., 5 NY3d 561, 570-571 [2005]; Leon v Martinez, 84 NY2d 83, 87-88 [1994]), is one that on its face would support a cognizable cause of action for false advertising, deceptive business practices, breach of contract, negligent misrepresentation, and unjust enrichment.

In determining whether plaintiff may have a valid cause of action against defendant, the Court further looks to the language of the brochure, which implies that graduates of defendant's chiropractic program would be eligible to sit for a licensing examination and thus potentially eligible for licensure in all 50 states, including California and North Carolina. That is what defendant seemingly promised to its students, in both a representational and contractual sense. Whether defendant lived up to or failed to deliver on that promise is not something that this Court can determine as a matter of law on the basis of the materials before it. Plaintiffs have averred that they each inquired into the possibility of licensure in North Carolina and California and were told that, although they had passed the national chiropractic licensing examination, they [*4]could not be licensed in those two states because D'Youville's program was not one approved by those states. Defendant ultimately may prove to the satisfaction of the trier of fact that its representation was true in some hyperliteral sense, inasmuch as plaintiffs were eligible upon graduation from D'Youville to sit for the national licensing examination for chiropractors. However, this Court cannot rule out that plaintiffs were misled into believing that successful completion of the D'Youville program would, if not by itself ensuring plaintiffs' licensure in any American state, at least not impede such licensure. Nor can the Court rule out the possibility that plaintiffs were deceived or otherwise wronged when, as it apparently turned out, D'Youville's program was disapproved for purposes of plaintiffs' licensure in California or North Carolina.

As to whether plaintiffs have adequately alleged in their amended complaint that they suffered injury or damage as a result of defendant's alleged wrongdoing, the Court reaches the same conclusions. The amended complaint on it face sets forth sufficient allegations of such injury or damage and defendant's causation thereof (see Wilner v Allstate Ins. Co., 71 AD3d 155, 161-162 [2d Dept 2010]; see also Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 25 [1995]). Plaintiffs have alleged that they each were induced to part with over $100,000 in tuition by defendant's alleged misrepresentations of fact and/or unfulfilled promises, and they further allege that defendant's failure to correct the alleged misrepresentations led plaintiffs to refrain from seeking their degree from an institution accredited or accepted by the states in question. It remains to be determined whether and to what extent plaintiffs actually have been injured. The Court would note, in any event, that General Business Law §§ 349 (h) authorizes recovery of nominal damages in lieu of actual (or extensive actual) damages.

Accordingly, the motion of defendant for a six-day extension of its time to respond to the amended complaint is GRANTED, nunc pro tunc.

The motion of defendant to dismiss the amended complaint and/or for summary judgment dismissing the amended complaint is DENIED.

All counsel should appear for a status conference to be held on July 27, 2010, at 9:30 a.m., in Part 34 at 50 Delaware Avenue.



Footnote 1:In fact, a claim seeking monetary relief for unjust enrichment is governed by a statute of limitations, usually deemed to be the six-year period prescribed by CPLR 213 (1) or (2) (see Sirico v F.G.G. Productions, Inc., 71 AD3d 429, 434 [1st Dept 2010]; EMD Constr. Corp. V New York City Dept. of Hous. Preservation and Dev., 70 AD3d 893, 894 [2d Dept 2010]; Niagara Mohawk Power Corp. v Freed, 288 AD2d 818, 818-819 [4th Dept 2001]) but sometimes deemed to be the three-year period of CPLR 214 (3) (see Dimatteo v Cosentino, 71 AD3d 1430, 1431 [4th Dept 2010]). Likewise, a cause of action for promissory estoppel has been held subject to the six-year limitations period of CPLR 213 (1) (see Superior Technical Resources, Inc. v Lawson Software, Inc., 17 Misc 3d 1137(A) *13 [Sup Ct, Erie Co, Curran, J.]).

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