Rahman Ishmael Jeffers et al., Respondents, v American University of Antigua et al., Appellants.
Supreme Court, Appellate Division, First Department, New York
March 17, 2014
3 NYS3d 335
Prior Case History: 2014 NY Slip Op 30669(U).
Plaintiffs are former nursing students seeking to recover
AUA‘s first class of nursing students graduated in late 2009.1 However, AUA graduates were not permitted to take the NCLEX in New York until December 2011 because, in 2010, the New York State Education Department (NYSED) found that AUA was not approved by the General Nursing Council of Antigua and Barbuda, and thus was not a certified nursing program in that country. Without passing the NCLEX, AUA graduates were not qualified to enroll in Lehman College‘s one-year BSN program. In January 2011, Lehman College allowed AUA graduates to enroll in its Generic Nursing Program, which did not require completion of the NCLEX. In December 2011 (approximately two years after the first AUA class graduated), NYSED altered its earlier decision and determined, based on “the representations set forth in letters submitted by the Prime Minister, Minister of Health, the Attorney General, and other government officials of Antigua and Barbuda,” that the school was properly accredited in Antigua and Barbuda. Graduates were then qualified to take the NCLEX in New York and enroll in Lehman College‘s one-year BSN program, as promised by AUA at the time of their enrollment several years earlier.
Summary judgment is inappropriate as to plaintiffs’ breach of contract claims. “‘[P]romises set forth in a school‘s bulletins, circulars, and handbooks, which are material to the student‘s
At the time of defendants’ summary judgment motion, no discovery had occurred, and the motion court properly found that summary judgment on this claim was premature. Defendants contend that plaintiffs have not shown that facts essential to oppose the motion were in defendants’ exclusive knowledge, or that discovery might lead to facts relevant to the material issues (see Woods v 126 Riverside Dr. Corp., 64 AD3d 422, 424 [1st Dept 2009], lv denied 14 NY3d 704 [2010]). Plaintiffs have not yet deposed defendants, and the record is not fully developed on damages, though plaintiffs do contend that they suffered financial harm. Defendants’ motion for summary judgment stayed discovery (
Plaintiffs’ remaining claims fail, and further discovery would not alter this determination. In support of their fraud claims, plaintiffs allege that defendants falsely represented that they would be qualified to take the NCLEX upon graduation from AUA. “A cause of action alleging fraud does not lie where the only fraud claim relates to a breach of contract. A present intent to deceive must be alleged and a mere misrepresentation of an intention to perform under the contract is insufficient to allege fraud” (J.M. Bldrs. & Assoc., Inc. v Lindner, 67 AD3d 738, 741 [2d Dept 2009] [internal quotation marks omitted]; see also Financial Structures Ltd. v UBS AG, 77 AD3d 417, 419 [1st Dept 2010]).2 Plaintiffs’ fraud claims fail because they merely allege that, at the time they enrolled in AUA, defendants misrepresented their intention to perform under the contract—that is, to provide them with degrees qualifying them to take the NCLEX.
Plaintiffs also brought negligent misrepresentation claims based on defendants’ representations that AUA graduates would be able to sit for the NCLEX. However, plaintiffs do not have a claim for negligent misrepresentation because there is no special or privity-like relationship between defendants and plaintiffs so as to support a negligent misrepresentation claim (see Kickertz v New York Univ., 110 AD3d 268, 276 [1st Dept 2013]; Gomez-Jimenez v New York Law Sch., 103 AD3d 13, 18-19 [1st Dept 2012], lv denied 20 NY3d 1093 [2013] [finding no “special relationship or fiduciary obligation requiring a duty of full and complete disclosure from defendant (school) to its prospective students“]). Plaintiffs’ unjust enrichment claims are “indistinguishable from [their] . . . claim[s] for breach of contract, and must be dismissed as duplicative of the contract claim[s]” (Benham v eCommission Solutions, LLC, 118 AD3d 605, 607 [1st Dept 2014] [internal quotation marks and citations omitted]).
Defendants are entitled to summary judgment on plaintiffs’ conversion claims. Plaintiffs allege that defendants converted their money by inducing them to pay tuition and other expenses despite knowing that AUA graduates would be ineligible to take the NCLEX and attend Lehman College as promised. “A cause of action for conversion cannot be predicated on a mere breach of contract” (Fesseha v TD Waterhouse Inv. Servs., 305 AD2d 268, 269 [1st Dept 2003]). Here, plaintiffs’ conversion claims allege no facts independent of the facts supporting their breach of contract claims. Concur—Mazzarelli, J.P., Sweeny, Andrias, Moskowitz and Richter, JJ.