The following papers having been read on this motion: Notice of Motion 1 Opposition 2 Reply 3 Defendant moves this Court for an order, pursuant to CPLR §3211(a)(1) and (a)(7), to dismiss Plaintiffs’ complaint in its entirety. Plaintiffs have opposed the motion, and this Court has received timely reply. Based upon the following, Defendant’s motion is hereby granted, and Plaintiffs’ complaint is hereby dismissed forthwith. Defendant is a, private school located in Plainview, Nassau County, New York, offering preschool services for children aged eighteen months through age four. Plaintiffs had each enrolled their respective children for schooling programs with Defendant for the 2019 through 2020 academic year. The allegations in the complaint indicate that Plaintiffs either paid Defendant in one payment at the start of the academic year, in two installment payments, one made at the start of the academic year and one made half way through the academic year, or in eight installment payments, with the first being due before the academic year and the last being due on April 1 of the academic year. Plaintiffs’ also seek class certification pursuant to Article 9 of the Civil Practice Law and Rules; however, no such motion pursuant to CPLR §902 has been filed to date. On March 7, 2021, in response to the burgeoning coronavirus pandemic effecting this State, New York State Governor Andrew Cuomo issued Executive Order 202, declaring a disaster emergency for the entire State of New York; subsequent thereto, Governor Cuomo issued a number of additional executive orders, which orders modified certain laws in an effort to deal with the pandemic. In addition, these executive orders directed certain facilities and institutions to alter their operating protocols in an effort to slow the spread of coronavirus. Amongst the facilities and institutions affected by these executive orders were schools, both public and private, such as Defendant. Executive Order 202.4, issued March 16, 2020, directed every school in the State of New York to close no later than March 18, 2020, for a period of two weeks and to develop a plan for alternative instruction and childcare. An important caveat salient to the case herein is that schools in Nassau County, Suffolk County, Westchester County, and the City of New York were required to submit such plans no later than midnight on March 17, 2020; in addition, there was no exception provided to private schools for adhering to these mandates. The directive for schools included as part of Executive Order 202.4 was amended to continue such closures through April 15, 2020, by Executive Order 202.11, through April 29, 2020, by Executive Order 202.14, through May 15, 2020, by Executive Order 202.18, and finally through the end of the school year by Executive Order 202.28. It appears undisputed before the: Court that, given the uncertainty surrounding the Governor’s declaration of a disaster emergency and the ambiguity surrounding the coronavirus pandemic itself, on March 13, 2020, Defendant informed Plaintiffs that it would close its school and would not offer in-person instruction to its students from March 16, 2020, through at least March 20, 2020, The Governor’s mandates took over from that point forward for the remainder of the 2019 through 2020 academic year. It is also certain in the record before the Court that Defendant’s, like most schools left scrambling during this period of time, switched to distance learning, utilizing video-conferencing platforms, email, and other technological options to attempt to provide education services to students while in-person instruction was still prohibited. Plaintiffs have now asserted four separate causes of action: first, a claim under General Business Law §349 for unlawful deceptive acts and practices; second, a claim of conversion; third, a claim for breach of contract; and fourth, a claim for unjust enrichment. The complaint indicates that some of the Plaintiffs prepaid for education services to be provided by Defendant specifically on an in-person basis, that Defendant did not perform as required, and that Defendant did not provide a refund to such prepaid Plaintiffs when it was unable to perform as agreed upon; likewise, for the remaining Plaintiffs that were billed monthly, such Plaintiffs were billed for in-person education services with Defendant up through March 2020 and for the remainder of the academic year, that Defendant did not perform as required, and that Defendant improperly billed these Plaintiffs for the final installment payment due April 1, 2020. Defendant has now sought dismissal of all claims against it. A motion to dismiss a complaint based on CPLR §3211(a)(1) may be granted only in instances where the documentary evidence utterly refutes Plaintiffs factual allegations conclusively and establishes a defense as a matter of law. Ginsberg Development Co. v. Carbone, 85 AD3d 1110, 926 NYS2d 156 (2nd Dept., 2011). To be considered documentary under the statute, the evidence must be unambiguous, of undisputed authenticity, and its contents be essentially undeniable. Fontanetta v. Doe, 73 AD3d 78, 898 NYS2d 569 (2nd Dept., 2010). Affidavits, deposition testimony, and letters alone are not considered documentary evidence under CPLR §3211(a)(1). Attias v. Costiera, 120 AD3d 1281, 993 NYS2d 59 (2nd Dept., 2014). Pursuant to CPLR §3211(a)(7), a party may move for judgment dismissing one or more causes of action asserted against him on the ground that the pleading fails to state a cause of action. In assessing the defendant’s motions to dismiss under CPLR §3211(a)(7), a court must accept the plaintiff’s allegations as true, accord plaintiff the benefit of every possible favorable inference, and determine only whether plaintiff has a cause of action. Connolly v. Long Island Power Authority. 30 NY3d 719, 70 NYS3d 909 (2018). At the same time, the defendant bears the burden of establishing that the complaint fails to state a viable cause of action. Id at 728, 914. Thus, a motion to dismiss made pursuant to CPLR §3211(a)(7) will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, the complaint states in some recognizable form any cause of action known to our law. Clarke v. Laidlaw Transit, Inc., 125 AD3d 920, 5 NYS3d 138 (2nd Dept., 2015). While it is true that courts have uniformly refused, based upon public policy consideration, to enter the classroom to determine claims based upon educational malpractice, the courts will intervene in academic matters only if an institution exercises its discretion in an arbitrary or irrational fashion or in bad faith. See Paladino v. Adelphi University, 89 AD2d 85, 454 NYS2d 868 (2nd Dept., 1982); See also Interfaith Medical Center v. Sabiston, 136 AD2d 238, 527 NYS2d 48 (2nd Dept., 1988). In support of the motion, Defendant has presented a copy of the relevant application form and contract agreement, complete with payment policy and refund policy pages, as well as an affidavit from a person with knowledge authenticating same. This document, which document the Plaintiffs do not refute its existence, their respective execution of same, or the disclosure of either the payment or refund policies, utterly refutes Plaintiffs’ factual allegations conclusively and establishes a defense as a matter of law. The payment policy applicable to the claimed breach of a service contract action by Defendant clearly states in Paragraph 10 that requests for tuition refunds must be made in writing, must be received prior to a student’s withdrawal, and that no refunds will be made for school closings. Moreover, the refund policy in place during the time the above-described events transpired fully disclosed to Plaintiffs what portion of the tuition charged would be refunded based upon the date of withdrawal and that after April 1, 2020, no refund will be given if requested. Plaintiffs, in opposition, fail to present any evidence that any of them did in fact notify Defendant in writing that his/her/their child would withdraw from the school and have also failed to present any admissible evidence to indicate that, once the service being provided was prohibited from being offered in an in-person format, that his/her/their child was purposely prevented by Defendant in any way from utilizing such format. Thus, in reviewing Plaintiffs’ third cause of action for breach of contract in the light most favorable to them, Defendant has demonstrated its entitlement to dismissal based upon documentary evidence. Accordingly, the portion of the motion seeking dismissal of Plaintiffs’ third cause of action sounding in breach of contract under CPLR §3211(a)(1) is hereby granted. See Khaykin v. Adelphi Academy of Brooklyn, 124 AD3d 781, 1 NYS3d 356 (2nd Dept., 2015). Coinciding with the foregoing, a liberal reading of Plaintiffs’ complaint also makes clear that Plaintiffs’ second and fourth causes of action, sounding in conversion and unjust enrichment, are grounded entirely in Plaintiffs’ third cause of action for breach of contract. A claim of conversion cannot be predicated on a mere breach of contract; rather, the complaint must set forth allegations which would constitute a wrong separate and distinct from an alleged breach of contract which would give rise to independent tort liability. East End Laboratories, Inc. v. Sawaya, 79 AD3d 1095, 914 NYS3d 250 (2nd Dept., 2010). Similarly, an unjust enrichment claim is not available where it simply duplicates a conventional contract claim. Concavage Marine Construction. Inc. v. Lou-Al-John Corp., 191 AD3d 843, 138 NYS3d 905 (Mem) (2nd Dept., 2021). Accordingly, those portions of Defendants motion seeking dismissal of Plaintiffs’ second and fourth causes of action under CPLR §3211(a)(1) and (a)(7) is hereby granted, over opposition. Turning now to the Plaintiffs’ remaining causes of action under GBL §349, this claim must also be dismissed. To successfully assert a claim under GBL §349, a plaintiff must allege that a defendant has engaged in consumer-oriented conduct that is materially misleading and that plaintiff suffered injury as a result of the allegedly deceptive act or practice, N. State Autobahn, Inc. v. Progressive Ins. Group Co., 102 AD3d 5 (2nd Dept. 2012). In determining whether a representation or omission is a deceptive act, the test is whether such act is likely to mislead a reasonable consumer acting reasonably under the circumstances. Andre Strishak & Associates, P.C. v. Hewlett Packard Co., 300 AD2d 608, 752 NYS2d 400 (2nd Dept., 2002). Here, Plaintiffs’ complaint does not allege any specific deceptive act or practice outside the allegations relevant to its breach of contract and quasi-contract claims in support of its first cause of action, nor has it pointed to any particular portion of the application, contract, payment, or refund policy to support its claim; rather, in opposition to the within motion, Plaintiffs attempt to rely upon an unauthenticated letter dated March 26, 2020, from Defendant to Plaintiffs and other parents utilizing Defendant’s school. The Defendant has not disputed the existence of said letter. The subject letter was an apparent attempt by the head administrator of Defendant to address some of the concerns of Plaintiffs and other parents during the early stages of the pandemic given the new environment they were all thrust into. Plaintiffs highlight the following portion of the subject letter to indicate an overt, deceptive act on the part of Defendant, found in the fourth paragraph of the subject letter: “None of us planned for this situation; yet, …we will get through it. We don’t know how. We don’t know when. And while you have been asking a number of questions, at this time, we simply do not have the answers. The safety of all of our families, both children and staff, is paramount; and we do not know when we will be able to meet again in person. But when we do, we will be doing it safely and legally. Some of you have also inquired about refunds. Again, we do not have an answer at this moment, but I want to assure you that we are and will continue to study the situation. Currently, it is too premature to determine when we can safely open and what that might mean.” This Court finds that, under the circumstances, these words from Defendant were not deceptive; instead, they were carefully chosen so as to avoid any ambiguity and cannot be deemed to have altered the terms of the agreement between the parties. A reasonable consumer, even the least-sophisticated consumer, could not reasonably have read this paragraph and concluded that the time remaining for a refund to be requested from Defendant had been enlarged in any way. Moreover, this statement acknowledges that Defendant was uncertain as to when it would be allowed to resume-in-person instruction or when the mandates placed upon everyone involved would be relaxed. Therefore, Plaintiffs have failed to properly state a cause of action under GBL §349 and Defendant’s motion is hereby granted as to Plaintiffs’ first cause of action under CPLR §3211(a)(7). WHEREFORE, the Defendant’s motion to dismiss is in all respects GRANTED. Defendant shall file and serve a copy of the within order with notice of entry upon Plaintiffs within thirty (30) days from the date of this order. This hereby constitutes the Decision and Order of this Court. Dated: May 6, 2021
