Plaintiff-Appellant Brett Goldberg appeals from the judgment of the United States District Court for the Southern District of New York (Engelmayer, J.) granting Defendant-Appellee Pace University’s motion for judgment on the pleadings. Goldberg v. Pace Univ., 535 F. Supp. 3d 180 (S.D.N.Y. 2021). Goldberg was a graduate student in the performing arts at Pace University in the spring of 2020. His education was interrupted by the COVID-19 pandemic. After Pace, in response to the pandemic and related governmental orders, elected to move several of Goldberg’s classes online and to postpone both the performance of Goldberg’s play and a class designed to prepare for that performance, Goldberg sued Pace for breach of contract, unjust enrichment, promissory estoppel, and violation of New York General Business Law §349. The district court granted Pace’s motion for judgment on the pleadings and (with one exception no longer at issue) dismissed Goldberg’s claims. The court reasoned that, in light of the published Emergency Closings provision that applied to Pace’s relationship with its graduate students, Goldberg did not sufficiently allege a breach as to the postponement of his play and class. The court further determined that Goldberg failed to identify a sufficiently specific promise under New York law of in-person instruction; that his unjust enrichment and promissory estoppel claims were impermissibly duplicative of his breach of contract claims; and that his §349 claim failed for similar reasons. On review, we AFFIRM the judgment of the district court, concluding primarily that Pace’s postponement and move to an online format were permitted by the Emergency Closings provision. AFFIRMED. SUSAN CARNEY, C.J. Brett Goldberg sued Pace University for breach of contract, unjust enrichment, promissory estoppel, and violation of New York General Business Law §349 after the onset of the COVID-19 pandemic caused Pace to postpone certain aspects of Goldberg’s master’s degree program in the performing arts and to move other aspects online during the spring 2020 semester. On Pace’s motion for judgment on the pleadings, the district court dismissed Goldberg’s complaint as to all but an ancillary claim for fees that is no longer at issue. Goldberg v. Pace Univ., 535 F. Supp. 3d 180 (S.D.N.Y. 2021) (Engelmayer, J.). The court concluded that Goldberg’s claims were not ripe as to the program’s postponed components for two reasons: first, an explicit provision in Pace’s graduate course catalog, the Emergency Closings provision, incorporated into Goldberg’s complaint by reference, entitled Pace in its discretion to reschedule courses and assignments in the event of unforeseen circumstances beyond the University’s control; second, the complaint showed that Pace planned to conduct the postponed components after pandemic-related restraints were relaxed. It also determined that Goldberg failed to state a claim as to Pace’s transition of some of Goldberg’s classes to an online format in the remaining weeks of the spring 2020 semester. It reasoned that Goldberg did not identify any sufficiently specific promise by Pace to provide only in-person instruction and that such a promise was required by New York law to sustain a student’s breach of contract claim against a university. The district court further ruled that Goldberg’s unjust enrichment and promissory estoppel claims failed both on the merits and because they were impermissibly duplicative of his breach of contract claims, and that his §349 claims were wanting because “the facts pled do not, at all, make out a deceptive business practice.” Id. at 201.1 On de novo review, we conclude that the Emergency Closings provision set forth in Pace’s Graduate School Course Catalog permitted Pace to delay some aspects of Goldberg’s program, making Goldberg’s postponement-related claims not ripe. We also decide that the Emergency Closings provision allowed Pace to move four of Goldberg’s courses online from March through May; accordingly, we do not reach the question whether Goldberg sufficiently alleged a specific promise of in-person instruction as to those courses. We further agree with the district court that Goldberg’s unjust enrichment and promissory estoppel claims warranted dismissal because they were impermissibly duplicative of his breach of contract claim. And, on appeal, Goldberg does not challenge the dismissal of his §349 claim and has disclaimed any intent to pursue his ancillary claim for fees. Accordingly, we affirm the district court’s award to Pace of judgment on the pleadings. BACKGROUND2 A. The Actors Studio MFA Program In 2017, Brett Goldberg enrolled in Pace’s Master of Fine Arts (MFA) program, also known as the Actors Studio Drama School, or “Actors Studio.” The Actors Studio is a three-year graduate degree program for aspiring actors, directors, and playwrights. An important part of the program is the Repertory Season, or “Rep Season,” during which students work together to produce a professional grade play and to stage it for “representatives from the theater, film, and television industries.” Second Amended Complaint (“Complaint”) 2. Pace’s marketing materials described the Rep Season as the “culmination” of students’ time in the Actors Studio and as their “introduction to the professional theater world.” Id. 6. Pace’s public marketing materials also highlighted other aspects of the Actors Studio program. For example, its informational webpage about the Actors Studio stated that all of its students “train side-by-side as actors,” that the school’s “black-box studios for professional training are designed and equipped according to state-of-the-art standards,” and that its location in New York City gave Actors Studio students “incomparable resources for the development of their art and the launching of their careers.” Id. 27.3 Although Pace also offered certain graduate programs that were fully online, its materials did not identify the Actors Studio as an online program, and tuition for the Actors Studio was significantly more expensive than Pace’s online offerings. Id.
