Leeds Brown Law, P.C., Carle Place, NY (Michael A. Tompkins, Jeffrey K. Brown, Brett R. Cohen, and Anthony Alesandro of counsel), for appellant.

Kaufman Borgeest & Ryan, LLP, New York, NY (Dianna D. McCarthy of counsel), for respondent.

In a putative class action, inter alia, to recover damages for breach of contract and unjust enrichment, the plaintiff appeals from an amended order of the Supreme Court, Suffolk County (Carmen Victoria St. George, J.), dated October 1, 2021. The amended order, insofar as appealed from, granted those branches of the defendant's motion which were pursuant to CPLR 3211 (a) (7) to dismiss the cause of action alleging unjust enrichment and so much of the cause of action alleging breach of contract as related to tuition, a "College Fee," and a "Technology Fee" paid by the plaintiff.

Ordered that the amended order is affirmed insofar as appealed from, with costs.

In the spring of 2020, the plaintiff was in the last semester of her senior year of undergraduate studies at the defendant, St. Joseph's College of New York (hereinafter the college). In response to the COVID-19 pandemic, on March 10, 2020, the college ceased all in-person operations and implemented online-only distance learning. The spring semester ended on or around May 5, 2020, and the plaintiff graduated from the college that month. The plaintiff then commenced this putative class action against the college, seeking recovery of tuition and fees paid to the college and asserting causes of action alleging breach of contract, unjust enrichment, and conversion. The college moved pursuant to CPLR 3211 (a) (7) to dismiss the amended complaint. The Supreme Court granted those branches of the motion which were to dismiss the unjust enrichment and conversion causes of action, and to dismiss the breach of contract cause of action, except for the portion thereof related to a "Student Activity Fee" and a "Parking Fee." The plaintiff appeals from so much of the [*2]order as granted those branches of the college's motion which were pursuant to CPLR 3211 (a) (7) to dismiss the unjust enrichment cause of action and so much of the breach of contract cause of action as related to the tuition, a "College Fee" of $125, and a "Technology Fee" of $100 paid by the plaintiff.

"When reviewing a pre-answer motion to dismiss the complaint for failure to state a cause of action, we must give the pleadings a liberal construction, accept the allegations as true and accord the plaintiff[ ] every possible favorable inference. Giving plaintiff the benefit of all favorable inferences which may be drawn from [the] pleading, this Court determines only whether the alleged facts fit within any cognizable legal theory. The question is whether the complaint adequately alleged facts giving rise to a cause of action" (Sassi v Mobile Life Support Servs., Inc., 37 NY3d 236, 239 [2021] [citations and internal quotation marks omitted]). "At the same time, however, allegations consisting of bare legal conclusions . . . are not entitled to any such consideration. Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141-142 [2017] [citation and internal quotation marks omitted]).

The Supreme Court properly granted that branch of the college's motion which was pursuant to CPLR 3211 (a) (7) to dismiss so much of the breach of contract cause of action as sought recovery of tuition paid by the plaintiff. "The relationship between a university and a student is contractual in nature" (Sweeney v Columbia Univ., 270 AD2d 335, 336 [2000]). Although " '[t]he 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' " (Clogher v New York Med. Coll., 112 AD3d 574, 575 [2013], quoting Vought v Teachers Coll., Columbia Univ., 127 AD2d 654, 655 [1987]), "only specific promises set forth in a school's bulletins, circulars and handbooks, which are material to the student's relationship with the school, can establish the existence of an implied contract" (Keefe v New York Law School, 71 AD3d 569, 570 [2010]; see Rynasko v New York Univ., 63 F4th 186 [2d Cir 2023]).

Here, the amended complaint contains only conclusory allegations of an implied contract to provide exclusively in-person learning during the spring 2020 semester which are unsupported by any specific promise that is material to the plaintiff's relationship with the college. The amended complaint alleges that a promise to provide in-person, on-campus educational services was implicit in the defendant's Mission Statement to "help[ ] students develop as whole persons by providing individual attention, interactive teaching, and opportunities for active participation in academic and extracurricular programs"; provisions of the Student Handbook providing that "Students learn and grow in an enriched environment of co-curricular, extra-curricular and experiential learning opportunity supported by staff and faculty"; and marketing materials contained on the college's website depicting campus facilities and encouraging prospective students to visit the college's campus. The referenced statements, however, are too vague to constitute a specific promise to provide the plaintiff with exclusively in-person learning (see Sinanovic v Wagner Coll., 2022 WL 4644238, *5, 2022 US Dist LEXIS 180200, *11-15 [ED NY, Sept. 30, 2022, No. 20-cv-5181 (LDH)]; Marbury v Pace Univ., 2021 WL 5521883, *2, 2021 US Dist LEXIS 227414, *3-6 [SD NY, Nov. 24, 2021, No. 20-CV-3210 (JMF)]; In re Columbia Tuition Refund Action, 523 F Supp 3d 414, 422-423 [SD NY 2021]; cf. Shaffer v George Washington Univ., 27 F4th 754, 764 [DC Cir 2022]).

In addition, the amended complaint alleges that the college charged lower tuition per credit and imposed lower fees for online students than in-person students. While allegations of a pricing differential between an in-person and online education may provide "additional support" for [*3]an inference that the college promised the plaintiff an in-person education (Shaffer v George Washington Univ., 27 F4th at 764; see Gociman v Loyola Univ. of Chicago, 41 F4th 873, 884-885 [7th Cir 2022]; Shak v Adelphi Univ., 549 F Supp 3d 267, 274 [ED NY 2021]), allegations of a pricing differential are not, standing alone, sufficient to allege the existence of such an implied promise (see e.g. Rynasko v New York Univ., 63 F4th at 199).

The amended complaint also fails to articulate in more than conclusory fashion the manner in which the plaintiff's course of study—which is not stated—was impacted by the suspension of in-person learning (cf. Rynasko v New York Univ., 63 F4th at 199). Accordingly, even accepting the allegations in the amended complaint as true and according the plaintiff the benefit of every favorable inference, the amended complaint fails to allege a sufficient basis to find that the college had promised to provide the plaintiff an exclusively in-person education (see Sinanovic v Wagner Coll., 2022 WL 4644238, *5, 2022 US Dist LEXIS 180200, *11-15; Marbury v Pace Univ., 2021 WL 5521883, *2, 2021 US Dist LEXIS 227414, *3-6; In re Columbia Tuition Refund Action, 523 F Supp 3d at 422-423; cf. Rynasko v New York Univ., 63 F4th at 199).

The Supreme Court also properly granted that branch of the college's motion which was to dismiss so much of the breach of contract cause of action as sought recovery of the "College Fee" and the "Technology Fee." The amended complaint is devoid of allegations as to what services were owed by the college in exchange for those fees (see Moore v Long Island Univ., 2022 WL 203988, *6, 2022 US Dist LEXIS 12368, *17-18 [ED NY, Jan. 24, 2022, No. 20-cv-3843 (BMC)]; Yodice v Touro Coll. & Univ. Sys., 2021 WL 5140058, *4, 2021 US Dist LEXIS 213930, *11 [SD NY, Nov. 4, 2021, No. 21 cv 2026 (DLC)]; Hassan v Fordham Univ., 515 F Supp 3d 77, 91 [SD NY 2021]; Romankow v New York Univ., 2021 WL 1565616, *4, 2021 US Dist LEXIS 76760, *9-10 [SD NY, Apr. 21, 2021, No. 20 Civ 4616 (GBD)]), and therefore whether those services were provided. Clearly some services were provided, since the plaintiff earned her degree.

Further, the Supreme Court properly granted that branch of the college's motion which was to dismiss the unjust enrichment cause of action. The elements of a cause of action sounding in unjust enrichment are (1) the defendant was enriched, (2) at the plaintiff's expense, and (3) that it is against equity and good conscience to permit the defendant to retain what is sought to be recovered (see Nasca v Greene, 216 AD3d 648 [2023]). Here, the amended complaint contains only conclusory allegations that the switch to online-only distance learning saved the college money. Notably, the program provided was not an online-only program since part of the semester was taught in person. The facts as alleged by the plaintiff therefore fail to demonstrate that the college was unjustly enriched at the plaintiff's expense (see Columbia Mem. Hosp. v Hinds, 38 NY3d 253, 275 [2022]; Bergeron v Rochester Inst. of Tech., 2023 WL 1767157, *11, 2023 US Dist LEXIS 18547, *31-32 [WD NY, Feb. 3, 2023, No. 20-CV-6283 (CJS)]; Hewitt v Pratt Inst., 2021 WL 2779286, *4, 2021 US Dist LEXIS 124465, *10-11 [ED NY, July 2, 2021, No. 20-cv-2007 (ERK) (SJB)]; Goldberg v Pace Univ., 535 F Supp 3d 180, 199 [SD NY 2021]; Hassan v Fordham Univ., 515 F Supp 3d at 87-93).

The plaintiff's remaining contention is without merit. Barros, J.P., Maltese, Ford and Dowling, JJ., concur. [Prior Case History: 73 Misc 3d 632.]