Clogher v. N.Y. Med. Coll.

MARK C. DILLON

Leeds Brown Law, P.C., Carle Place, N.Y. (Bryan Arbeit of counsel), for appellant. Kelley Drye & Warren LLP, New York, N.Y. (Sarah L. Reid, Kevin J. Smith, and Craig A. Convissar of counsel), for respondent New York Medical College.
MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.

In an action, inter alia, to recover damages for breach of contract, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered April 10, 2012, as granted those branches of the defendants' motion which were pursuant to CPLR 3211(a) to dismiss the first, second, third, fourth, sixth, seventh, and eighth causes of action in the amended complaint insofar as asserted against the defendant New York Medical College.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants' motion which was pursuant to CPLR 3211(a) to dismiss the second cause of action insofar as asserted against the defendant New York Medical College, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed from, with costs to the defendant New York Medical College.

“An implied contract exists between [a school] and its students such that if a student complies with the terms prescribed by [the school], he or she will obtain the degree which he or she sought” (Matter of Rizvi v. New York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 A.D.3d 1049, 1054, 950 N.Y.S.2d 754; see Vought v. Teachers Coll., Columbia Univ., 127 A.D.2d 654, 511 N.Y.S.2d 880). “ ‘The essence of the implied contract is that an academic institution must act in good faith in its dealings with its students' ” (Matter of Rizvi v. New York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 A.D.3d at 1054, 950 N.Y.S.2d 754, quoting Matter of Olsson v. Board of Higher Educ. of City of New York, 49 N.Y.2d 408, 414, 426 N.Y.S.2d 248, 402 N.E.2d 1150). “The rights and obligations of the parties as contained in the [school'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 at 654, 511 N.Y.S.2d 880).

Here, the allegations set forth in the amended complaint, construed liberally, state a cause of action against the defendant New York Medical College (hereinafter NYMC) to recover damages for breach of contract. The second cause of action set forth in the amended complaint alleged, among other things, that NYMC failed to comply with its obligation to maintain the plaintiff's academic records, that NYMC was required to provide her with a personally tailored program plan as set forth in the student handbook, and that NYMC failed to follow that plan ( see Paladino v. Adelphi Univ., 89 A.D.2d 85, 92, 454 N.Y.S.2d 868; cf. Kickertz v. New York Univ., 110 A.D.3d 268, 971 N.Y.S.2d 271). However, the third cause of action, which alleged breach of the implied duty of good faith and fair dealing, is not a viable cause of action against NYMC because it is duplicative of the second cause of action ( see MBIA Ins. Corp. v. Countrywide Home Loans, Inc., 87 A.D.3d 287, 928 N.Y.S.2d 229; compare Elmhurst Dairy, Inc. v. Bartlett Dairy, Inc., 97 A.D.3d 781, 784–785, 949 N.Y.S.2d 115).

The Supreme Court properly granted those branches of the defendants' motion which were to dismiss the first, fourth, sixth, seventh, and eighth causes of action insofar as asserted against NYMC, as they concern only academic and administrative decisions and should, therefore, have been raised in a proceeding commenced pursuant to CPLR article 78 ( see Maas v. Cornell Univ., 94 N.Y.2d 87, 92, 699 N.Y.S.2d 716, 721 N.E.2d 966; Kickertz v. New York Univ., 110 A.D.3d 268, 971 N.Y.S.2d 271; Gary v. New York Univ., 48 A.D.3d 235, 236, 850 N.Y.S.2d 433; Frankel v. Yeshiva Univ., 37 A.D.3d 760, 829 N.Y.S.2d 906; Demas v. Levitsky, 291 A.D.2d 653, 660, 738 N.Y.S.2d 402; Diehl v. St. John Fisher Coll., 278 A.D.2d 816, 817, 718 N.Y.S.2d 516; Risley v. Rubin, 272 A.D.2d 198, 708 N.Y.S.2d 377; Klinge v. Ithaca Coll., 244 A.D.2d 611, 613, 663 N.Y.S.2d 735; Gertler v. Goodgold, 107 A.D.2d 481, 485, 487 N.Y.S.2d 565, affd.66 N.Y.2d 946, 498 N.Y.S.2d 779, 489 N.E.2d 748). Since the plaintiff commenced the instant action after the expiration of the four-month statute of limitations period applicable to CPLR article 78 proceedings, her claims are time-barred ( see Padiyar v. Albert Einstein Coll. of Medicine of Yeshiva Univ., 73 A.D.3d 634, 635, 900 N.Y.S.2d 866; Bottalico v. Adelphi Univ., 299 A.D.2d 443, 749 N.Y.S.2d 734; Gertler v. Goodgold, 107 A.D.2d 481, 487 N.Y.S.2d 565).