By Melissa Angell

Law360 (March 17, 2021, 9:58 PM EDT) -- A New York federal judge on Wednesday tossed a proposed class action against New York University launched by students hoping for tuition refunds after the school moved instruction online during the pandemic, finding that the school never promised in-person education.

In a 12-page order, U.S. District Judge George B. Daniels determined that NYU student Daniel Zagoria did not adequately plead a breach of contract claim against the school because NYU did not promise to provide in-person educational services.

"Plaintiff does not point to any express language promising the 'certain specified service' of in-person classes," the judge wrote in his order. "Moreover, plaintiff has not pointed to any express language that demonstrates NYU 'relinquished its authority' to alter the method of academic instruction."

The judge granted Zagoria an opportunity to amend his complaint by April 1.

Zagoria, a master's student at NYU's Schack Institute of Real Estate, sued the university last May on behalf of a proposed class of NYU students, alleging that the university breached its promise to students by continuing to charge more than $2,000 per credit hour, despite offering an inferior academic experience when classes went virtual as a result of the state's pandemic-related closure orders.

NYU, however, said Zagoria can't point to any specific contract language to show his virtual learning experience didn't amount to what he paid for. It said the in-person learning opportunities Zagoria claims were included in his real estate program, including networking sessions and a trip to Europe, were never expressly promised.

Last August, NYU moved to dismiss the suit arguing that the proposed class of students doesn't deserve refunds for the university's transition to remote learning because it continued to deliver on its educational promises.

Even if Zagoria could establish that networking and travel were promised in a valid contract, the university added, NYU should be off the hook because the COVID-19 shutdown made it impossible to conduct such activities.

NYU went on to say that Zagoria's attempt to extend his breached contract claims to a class action encompassing the more than 50,000 students enrolled in its various degrees and programs during the 2019-2020 school year does little to help his cause.

Additionally, the university argued that the educational malpractice doctrine bars Zagoria's claims since the doctrine "precludes courts from adjudicating claims regarding the sufficiency or quality of education provided by educational institutions."

Zagoria argued that his claims do not focus on educational malpractice, but rather on NYU's enforcement of its so-called contractual bargain with its students, according to court documents.

On Wednesday, the judge ruled that the educational malpractice doctrine does not bar Zagoria's claims since they are "sufficiently grounded in contract."

The judge continued that Zagoria's complaint focuses on statements from NYU course descriptions and "recruitment materials," which can serve as a contractual relationship basis between the school and its students.

"Ascertaining the meaning of these materials is an exercise in contract interpretation, which is the province of this court and does not require the questioning of the academic judgments of educational professionals," the judge wrote.

Judge Daniels added that NYU is correct in its argument that Zagoria failed to specify the "contractual promises" he sought to enforce and axed his breach of contract and quasi-contract claims.

An NYU spokesperson told Law360 on Wednesday that the school is pleased with the decision and that "the University maintained from the outset that these suits were baseless."

NYU is one of many colleges facing proposed class actions from students and parents seeking refunds amid nationwide virus closures. Schools ranging from private Ivy League colleges, such as Harvard and Dartmouth, to public universities across the country are grappling with similar lawsuits.

Representatives for Zagoria did not immediately respond to requests for comment on Wednesday.

Zagoria is represented by Roy A. Katriel of The Katriel Law Firm.

NYU is represented by Brian S. Kaplan, Keara M. Gordon, Colleen Carey Gulliver and Rachael C. Kessler of DLA Piper.

The case is Daniel Zagoria et al. v. New York University, case number 1:20-cv-03610, in the U.S. District Court for the Southern District of New York.

--Additional reporting by Rachel Scharf. Editing by Regan Estes.

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