ADDITIONAL CASES Nickesha Thomas and Noah Zacco, individually and on behalf of all others similarly situated, Plaintiffs, v. Mercy College, Defendant; 20 CV 3584 OPINION AND ORDER Plaintiff Melanie Fedele brings a putative class action against defendant Marist College, and plaintiffs Nickesha Thomas and Noah Zacco (the “Mercy plaintiffs”) bring a separate putative class action against defendant Mercy College, both of which allege claims for breach of contract, unjust enrichment, conversion, and money had and received. Now pending are Marist’s motion to dismiss Fedele’s amended complaint, pursuant to Fed. R. Civ. P. 12(b)(6) (20 CV 3559, Doc. #26), and Mercy’s motion for judgment on the pleadings with respect to the Mercy plaintiffs’ second amended complaint, pursuant to Fed. R. Civ. P. 12(c). (20 CV 3584, Doc. #35). Although the cases are not formally consolidated, because the two motions raise very similar issues, the Court will address the motions together in the interest of judicial economy. For the following reasons, both motions are GRANTED. Plaintiffs allege the Court has subject matter jurisdiction pursuant to 28 U.S.C. §1332(d)(2).1 BACKGROUND For the purpose of ruling on the motions, the Court accepts as true all well-pleaded factual allegations in Fedele’s amended complaint (“Marist AC”) and the Mercy plaintiffs’ second amended complaint (“Mercy SAC”) and draws all reasonable inferences in plaintiffs’ favor, as summarized below. On March 13, 2020, after the novel coronavirus (“COVID-19″) arrived in the United States, President Donald J. Trump issued Proclamation 9994, declaring that the COVID-19 outbreak in the United States constituted a national emergency. On March 18, 2020, New York Governor Andrew M. Cuomo issued Executive Order 202.6, mandating a statewide shutdown of non-essential businesses beginning on March 22, 2020. As a result, many colleges and universities in New York temporarily transitioned to online classes and ceased various in-person activities and services. A multitude of lawsuits brought by students seeking a partial refund of their tuition and fees for the spring 2020 semester followed, including the instant actions. I. Marist College Marist College is a private liberal arts college located in Poughkeepsie, New York. Plaintiff Melanie Fedele alleges that during the spring 2020 semester, she was an undergraduate at Marist pursuing a bachelor’s degree in business administration and fashion merchandising. Fedele claims she paid approximately $20,860 in tuition and fees to Marist for the spring 2020 semester. Fedele also alleges that in exchange for tuition and fees, Marist agreed to provide students with in-person education, experiences, and related services, which it did for the first half of the spring 2020 semester. However, according to Fedele, on March 16, 2020, Marist President Dennis J. Murray announced that because of the global COVID-19 pandemic, beginning Monday, March 30, 2020 (the first day back from spring break) all classes for the remainder of the spring 2020 semester would be held remotely. Fedele alleges Marist has not held in person classes since before the students left for spring break on March 13, 2020. She claims that classes have been offered in only an online format, with no in-person instruction. Fedele further alleges Marist has not refunded any tuition for the spring 2020 semester and, although Marist has offered students the ability to apply for a refund of some fees, it neither offered a refund of all fees, nor automatically processed all available refunds. II. Mercy College Mercy College is a private college located in Dobbs Ferry, New York. Plaintiff Nickesha Thomas alleges that during the spring 2020 semester, she was an undergraduate at Mercy pursuing a bachelor’s degree in nursing. Thomas claims she paid approximately $6,907 in tuition and fees to Mercy for the spring 2020 semester, including a $430 General Student Fee, a $1,072 Nursing Exam Fee, and a $213 Student Activity Fee. Plaintiff Noah Zacco alleges he was an undergraduate at Mercy for the spring 2020 semester pursuing a bachelor’s degree in criminal justice. Zacco claims he paid approximately $5,000 in tuition and fees to Mercy for the spring 2020 semester. The Mercy plaintiffs allege that in exchange for tuition and fees, Mercy agreed to provide its students with in-person education, experiences, and related services, which it did for the first half of the spring 2020 semester. However, the Mercy plaintiffs allege that on March 18, 2020, Mercy announced that classes would transition to an online format and residential housing would close March 29, 2020, through the end of the spring 2020 semester. According to the Mercy plaintiffs, Mercy has not held any in-person classes since March 10, 2020, and classes that have continued have only been offered in an online format, with no in-person instruction. The Mercy plaintiffs allege they have neither been provided a refund of any tuition for the spring 2020 semester nor been offered a refund for all the fees they paid for the same. DISCUSSION I. Standard of Review In deciding a Rule 12(b)(6) motion, the Court evaluates the sufficiency of the operative complaint under the “two-pronged approach” articulated by the Supreme Court in Ashcroft v. Iqbal, 556 U.S. 662, 679 (2009).2 First, a plaintiff’s legal conclusions and “[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements,” are not entitled to the assumption of truth and are thus not sufficient to withstand a motion to dismiss. Id. at 678; Hayden v. Paterson, 594 F.3d 150, 161 (2d Cir. 2010). Second, “[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Ashcroft v. Iqbal, 556 U.S. at 679. To survive a Rule 12(b)(6) motion, the allegations in the complaint must meet a standard of “plausibility.” Ashcroft v. Iqbal, 556 U.S. at 678; Bell Atl. Corp. v. Twombly, 550 U.S. 544, 564 (2007). A claim is facially plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. at 678. “The plausibility standard is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id. (quoting Bell Atl. Corp. v. Twombly, 550 U.S. at 556). When ruling on a motion to dismiss, the Court need not accept as true “factual assertions that are contradicted by the complaint itself, by documents upon which the pleadings rely, or by facts of which the court may take judicial notice.” Perry v. NYSARC, Inc., 424 F. App’x 23, 25 (2d Cir. 2011) (summary order); see also, e.g., Hirsch v. Arthur Andersen & Co., 72 F.3d 1085, 1095 (2d Cir. 1995) (refusing to credit “attenuated allegations” “contradicted both by more specific allegations in the Complaint and by facts of which [the Court] may take judicial notice”). “The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim.” Cleveland v. Caplaw Enters., 448 F.3d 518, 520 (2d Cir. 2006). II. Breach of Contract Claims Marist and Mercy argue that plaintiffs fail plausibly to allege a breach of contract claim. The Court agrees. A. Applicable Law “[A] breach of contract claim requires proof of (1) an agreement, (2) adequate performance by the plaintiff, (3) breach by the defendant, and (4) damages.” Fischer & Mandell LLP v. Citibank, N.A., 632 F.3d 793, 799 (2d Cir. 2011). Under New York law, there exists an implied contract between a student and their college or university, which is “formed when a university accepts a student for enrollment.” Papelino v. Albany Coll. of Pharmacy of Union Univ., 633 F.3d 81, 93 (2d Cir. 2011). “[I]f the student complies with the terms prescribed by the university and completes the required courses, the university must award him a degree.” Id. “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.” Vought v. Teachers Coll., Columbia Univ., 127 A.D.2d 654, 654 (2d Dep’t 1987). “In order to state a claim for breach of such a contract, a student must identify specifically designated and discrete promises.” Nungesser v. Columbia Univ., 169 F. Supp. 3d 353, 370 (S.D.N.Y. 2016). “General policy statements and broad and unspecified procedures and guidelines will not suffice.” Id. In addition, “to state a valid claim for a breach of contract against a university, a student must state when and how the defendant breached the specific contractual promise.” In re Columbia Tuition Refund Action (“In re Columbia”), __F. Supp. 3d __ __, 2021 WL 790638, at *3 (S.D.N.Y. Feb. 26, 2021). B. Educational Malpractice Doctrine As a threshold matter, Marist and Mercy argue plaintiffs’ breach of contract claims must be dismissed because they run afoul of New York’s bar on “educational malpractice” claims. The Court is not persuaded. “Educational malpractice claims, which ask the Court to involve itself in the subjective professional judgments of trained educators, are not cognizable under New York law.” Amable v. New School, 2021 WL 3173739, at *3 (S.D.N.Y. July 27, 2021). This policy is based on the presumption that courts should not substitute their own judgment for academic officials who are “uniquely capable of deciding what is appropriate and necessary for educational institutions to function.” Id. Here, some of plaintiffs’ allegations bear a resemblance to educational malpractice claims — particularly those that explicitly compare the alleged quality of in-person versus online courses. For example, plaintiffs in both cases allege the “online learning options being offered to…students are subpar in practically every aspect and a shadow of what they once were.” (20 CV 3559, Doc. #21 (“Marist AC”) 32; 20 CV 3584, Doc. #31 (“Mercy SAC”) 37).3 Plaintiffs also claim the “remote learning options are in no way the equivalent of the in-person education that Plaintiff[s] and the putative class members contracted and paid for.” (Marist AC 11; Mercy SAC 15). Finally, plaintiffs allege defendants should return a pro-rated share of the tuition and fees paid by plaintiffs and the putative class members proportionate to the amount of time that remained in the spring 2020 semester when classes transitioned to online and campus services were canceled, which would require the Court to make a determination as to the comparative worth of the offered in-person and online classes. Despite this resemblance, plaintiffs’ breach of contract claims do not “run[] afoul of New York’s steadfast refusal to recognize claims of ‘educational malpractice.’” (20 CV 3559, Doc. #27 at ECF 16).4 Rather, plaintiffs’ principal claims are that Marist and Mercy breached contractual obligations set forth in course catalogs, course bulletins, and class schedule searches to “provide in-person educational services, experiences, opportunities, and other related services.” (Marist AC 3; Mercy SAC 53). In deciding whether these claims survive the instant motions, the Court need not “substitute [its] judgment for that of university officials.” Sirohi v. Lee, 222 A.D.2d 222, 222 (1st Dep’t 1995). Courts considering identical allegations drafted by the same counsel have refused to dismiss complaints as prohibited educational malpractice claims. In so concluding, the courts in Amable v. New School and Hassan v. Fordham Univ. both noted that “the essence of [p]laintiffs’ [complaints] [are] claim[s] that Defendant[s] made — and then breached — a specific promise to provide in-person teaching and other learning opportunities.” Amable v. New School, 2021 WL 3173739, at *4 (discussing Hassan v. Fordham Univ., 2021 WL 293255). Thus, the main question in those cases, as here, is whether defendants’ publications contained a specific promise to provide in-person instruction. In Amable v. New School, the court further explained: To determine whether the Course Catalog and other documents stated a specific promise to provide in-person instruction, the Court need not question the judgments of educational professionals, and thus, Plaintiffs’ claims are not barred by the educational malpractice doctrine, because they are sufficiently grounded in whether an alleged promise for educational services was made and breached. Id. at *4; see also In re Columbia, 2021 WL 790638, at *6 (“The Court…joins the majority of district courts around the country that have declined to hold, at least on a motion to dismiss (or judgment on the pleadings), that claims arising from universities’ adoption of online instruction in response to the COVID-19 pandemic are barred under the educational malpractice doctrine.”). Accordingly, the Court declines to dismiss plaintiffs’ claims as barred by the educational malpractice doctrine. C. Breach of Contract Claim Against Marist College Fedele fails plausibly to allege a breach of contract claim because she identifies no specific contractual promise by Marist to provide in-person educational instruction in exchange for students’ tuition and fees. 1. Specific Promises Although Fedele claims Marist’s “Class Schedule Search” function, “Course Registration” function, and Course Catalog, contained specific promises “to provide in-person educational services, experiences, opportunities, and other related services” (Marist AC 46), that assertion is contradicted by the statements to which she points. First, Fedele contends that Marist’s “Class Schedule Search” and “Class Registration” functions specifically allow students to search for classes based on “Schedule Type,” which includes options for “Lecture” as opposed to “On Line Class.” (Marist AC
