| Clogher v New York Med. Coll. |
| 2013 NY Slip Op 08043 [112 AD3d 574] |
| December 4, 2013 |
| Appellate Division, Second Department |
| Paula Clogher, Appellant, v New York MedicalCollege et al., Respondents. |
—[*1] Kelley Drye & Warren LLP, New York, N.Y. (Sarah L. Reid, Kevin J. Smith, andCraig A. Convissar of counsel), for respondent New York Medical College.
In an action, inter alia, to recover damages for breach of contract, the plaintiffappeals, 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 ofthe 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 amendedcomplaint insofar as asserted against the defendant New York Medical College.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendants' motion which was pursuant to CPLR 3211 (a) todismiss the second cause of action insofar as asserted against the defendant New YorkMedical 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 defendantNew York Medical College.
"An implied contract exists between [a school] and its students such that if a studentcomplies with the terms prescribed by [the school], he or she will obtain the degreewhich he or she sought" (Matterof Rizvi v New York Coll. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d1049, 1054 [2012]; see Vought v Teachers Coll., Columbia Univ., 127AD2d 654 [1987]). " 'The essence of the implied contract is that an academic institutionmust act in good faith in its dealings with its students' " (Matter of Rizvi v New YorkColl. of Osteopathic Medicine of N.Y. Inst. of Tech., 98 AD3d at 1054, quotingMatter of Olsson v Board of Higher Educ. of City of N.Y., 49 NY2d 408, 414[1980]). "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 AD2d at 655).
Here, the allegations set forth in the amended complaint, construed liberally, state acause of action against the defendant New York Medical College (hereinafter NYMC) torecover damages for breach of contract. The second cause of action set forth in theamended complaint alleged, among other things, that NYMC failed to comply with itsobligation to maintain the plaintiff's academic records, that NYMC was required toprovide her with a personally tailored [*2]program planas set forth in the student handbook, and that NYMC failed to follow that plan (seePaladino v Adelphi Univ., 89 AD2d 85, 92 [1982]; cf. Kickertz v New YorkUniv., 110 AD3d 268 [2013]). However, the third cause of action, whichalleged breach of the implied duty of good faith and fair dealing, is not a viable cause ofaction against NYMC because it is duplicative of the second cause of action (see MBIA Ins. Corp. vCountrywide Home Loans, Inc., 87 AD3d 287 [2011]; compare Elmhurst Dairy, Inc. vBartlett Dairy, Inc., 97 AD3d 781, 784-785 [2012]).
The Supreme Court properly granted those branches of the defendants' motion whichwere to dismiss the first, fourth, sixth, seventh, and eighth causes of action insofar asasserted against NYMC, as they concern only academic and administrative decisions andshould, therefore, have been raised in a proceeding commenced pursuant to CPLR article78 (see Maas v Cornell Univ., 94 NY2d 87, 92 [1999]; Kickertz v New York Univ.,110 AD3d 268 [2013]; Gary v New York Univ., 48 AD3d 235, 236 [2008]; Frankel v Yeshiva Univ., 37AD3d 760 [2007]; Demas v Levitsky, 291 AD2d 653, 660 [2002]; Diehlv St. John Fisher Coll., 278 AD2d 816, 817 [2000]; Risley v Rubin, 272AD2d 198 [2000]; Klinge v Ithaca Coll., 244 AD2d 611, 613 [1997]; Gertlerv Goodgold, 107 AD2d 481, 485 [1985], affd 66 NY2d 946 [1985]). Sincethe plaintiff commenced the instant action after the expiration of the four-month statuteof limitations period applicable to CPLR article 78 proceedings, her claims aretime-barred (see Padiyar vAlbert Einstein Coll. of Medicine of Yeshiva Univ., 73 AD3d 634, 635 [2010];Bottalico v Adelphi Univ., 299 AD2d 443 [2002]; Gertler v Goodgold,107 AD2d 481 [1985]). Dillon, J.P., Angiolillo, Roman and Sgroi, JJ., concur.