Puentes v. Union College

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

DIAMOND ELLIE PUENTES,

Plaintiff,

-against- 1:23-CV-373 (LEK/DJS)

UNION COLLEGE, et al.,

Defendants.

MEMORANDUM-DECISION AND ORDER

I. INTRODUCTION

On February 28, 2023, Plaintiff Diamond Ellie Puentes filed this action in New York

State Supreme Court, County of Schenectady, against Union College, Angela Stefanatos

(“Stefanatos”), Fran’Cee Brown-McClure (“Brown-McClure”), Vincent Zeccola (“Zeccola”),

David R. Harris (“Harris”), Phillip Wadja (“Wadja”), and John Does 1–25 (collectively,

“Defendants”). See Dkt. No. 2 (“Complaint”). Defendants later removed this action to this Court

on March 24, 2023. See Dkt. No. 1. Defendants now move to dismiss this action pursuant to

Federal Rule Civil Procedure 12(b)(6). Dkt. No. 8-1 (“Motion”). Plaintiff has filed a response,

Dkt. No. 14 (“Response”), and Defendants have filed a reply, Dkt. No. 16 (“Reply”).

For the reasons that follow, Defendants’ Motion is granted in part and denied in part.

II. BACKGROUND

The following facts are set forth as alleged in Plaintiff’s Complaint. See Compl. ¶¶ 1–

142.1

1 Citations to paragraphs in the Complaint refer to those paragraphs located in the “Statement of

the Case” section. All other citations refer to ECF pagination.

Plaintiff is a first-generation American citizen, who comes from a Latin American family

and has limited financial resources. See Id. ¶¶ 1–2. Union College is a private higher education

institution located in Schenectady, New York. See id. ¶ 13. All other Defendants are either

employed by or serve on the Board of Trustees of Union College: Stefanatos serves as the

college’s Director of Health Services; Brown-McClure was employed as the Vice President for

Student Affairs and Dean of Students at the time of the events of this action; Zeccola serves as

Collaborating Physician for the college; Harris serves as the president of Union College; Wadja

serves as the Director of Media and Public Relations; and John Does 1–25 are individuals whose

names are not known but are “directly or indirectly responsible for any or all of the alleged acts”

described in Complaint. See id. ¶¶ 13–19.

Plaintiff was a student at Union College, matriculating in 2020. See id. ¶ 22. Plaintiff

received Union College’s Academic Opportunity Scholarship (“AOP Scholarship”), which

provides financial assistance for out-of-state students “from first-generation, low-income

backgrounds through academic counseling and financial aid.” Id. ¶ 23 (internal quotation marks

omitted). To continue receiving the AOP Scholarship, Plaintiff was required to maintain a

minimum grade point average and continue to exhibit financial need. See id. ¶ 26.

Upon accepting an offer to attend Union College on the AOP Scholarship, Plaintiff

received Union College’s Student Handbook (“Handbook”), “which contained provisions related

to both the college and student’s reasonable expectations as to how the college was run and what

the student’s requirements were to succeed at the college.” Id. ¶ 24. Plaintiff describes the

Handbook as “contractual in nature with respect to its terms of general applicability to all

students and/or the college.” Id. ¶ 25. The Handbook contained a policy related to immunizations

(“Immunization Policy”), requiring students “provide proof of immunization to measles, mumps,

and rubella.” Id. ¶ 29. Union College also required students be vaccinated against meningococcal

meningitis. See id. ¶ 32. The Immunization Policy specifies that students may receive an

exemption from the immunization requirements “if a licensed physician or nurse practitioner

certifies that such immunization is detrimental to the student’s health or otherwise medically

contraindicated, or if immunization is contrary to the student’s genuine and sincere religious

beliefs.” Id. ¶ 34. The Immunization Policy contained no language regarding the COVID-19

vaccine or any related booster vaccine, see id. ¶ 35, nor did the Handbook provide any

“mechanism for imposing an additional vaccine requirement,” id. ¶ 41.

In July 2021, Union College sent an email to its students stating that both students and

faculty needed to receive a COVID-19 vaccine before arriving on campus for the fall semester.

See id. ¶ 37. Union College expected “at least 99 percent of students” would “be fully

vaccinated,” and warned that “[u]nvaccinated students will not be allowed to move in or gain

access to College facilities”—although “[a] very small number of individuals” had “been granted

exemptions from vaccination on religious or medical grounds.” Id.

On August 6, 2021, Plaintiff sent an application to Union College requesting a religious

exemption to the COVID-19 vaccine requirement. See id. ¶ 44. In her application, Plaintiff “did

not specify a religion or any affiliation with any denomination or church but referenced the

‘Holy Bible’ and her biblical beliefs.” Id.; see also id. at 45–47 (attaching Plaintiff’s application

for an exemption as an exhibit). Eleven days later, Union College’s Office of the Dean of

Students emailed Plaintiff, stating that Plaintiff’s “request could not be reviewed at that time

because it was missing a notarized religious organization form and/or letter of support.” Id. ¶ 45.

Six days later, on August 23, 2021, Plaintiff “received another email denying her religious

exemption request due to failure to provide the ‘additional materials.’” Id. ¶ 46.

On August 24, 2021, Plaintiff chose to receive the first dose of the Pfizer COVID-19

vaccine. See id. ¶ 48. After receiving her second shot in September 2021, Plaintiff “began to

suffer from several medical ailments including sore throat, congestion, coughing, and difficulty

breathing when exercising. Several days later, the symptoms escalated to vomiting, extreme

abdomen pain, and diarrhea.” Id. ¶ 51. Plaintiff subsequently visited Union College’s health

clinic and an emergency room at a local hospital to receive treatment for her symptoms. See id.

¶¶ 52–53. Plaintiff avers that prior to receiving her dual Pfizer vaccine, she had “no significant

health issues,” but now suffers from “continued pain, suffering, and ongoing gastrointestinal

problems which were caused by the Pfizer shot.” Id. ¶ 54. In December 2021, Plaintiff tested

positive for COVID-19, which, according to Plaintiff, made Plaintiff “naturally immune” from

COVID-19. See id. ¶¶ 58–64. Plaintiff states that both the original COVID-19 vaccine and the

booster shots were “completely ineffective against contraction or transmission” of the virus. Id.

¶¶ 65–71.

In January 2022, Union College further “mandated its employees and students to receive

either a Moderna or Pfizer COVID-19 booster shot five months after the second dose of

vaccination.” Id. ¶ 71. Plaintiff sent an email to Union College on March 26, 2022, “in which she

expressed her fear of receiving a booster shot due to her hospitalization following her receiving

the second Pfizer shot and requested an exemption from the mandate.” Id. ¶ 73. Union College

responded by instructing Plaintiff to submit medical documentation from her health care

provider. See id. The following day, Plaintiff submitted “a copy of her hospital discharge papers

. . . as proof that she had been made ill by the second Pfizer shot.” Id. ¶ 76. The next day, Union

College denied Plaintiff’s exemption, and informed Plaintiff “that her hospital paperwork was

insufficient support for the [exemption].” Id. ¶ 77. In the days following this denial, Plaintiff

experienced a series of health issues that were “caused by her receiving the second Pfizer shot,”

and visited Union College’s health clinic, where she was seen by Stefanatos. Id. ¶¶ 78–79.

Stefanatos “suggested that [Plaintiff] was not truly ill, but was just feigning illness to avoid

getting the booster.” Id. ¶ 80. Stefanatos also “offered no medical treatment” and “accused

[Plaintiff] of having an eating disorder and had [Plaintiff] schedule [an] appointment with a

nutritionist.” Id. ¶ 81.

On April 8, 2022, Plaintiff visited Union College’s office that manages the AOP

Scholarship, seeking to extend the time “to provide her physician’s medical exemption letter,

which had not yet arrived.” Id. ¶ 83. The AOP office called Stefanatos to discuss Plaintiff’s

situation, and Stefanatos responded, “[t]here is nothing a doctor is going to say or write that will

make me change my mind.” Id. ¶ 84. That same day, Plaintiff emailed Harris, and “expressed her

fear of getting the booster and her frustration at the unilateral manner in which her exemption

request was denied.” Id. ¶ 85. Harris responded on April 9, 2022, stating: “[Brown-McClure] and

I just spoke. I know that we tried to work with you on this. I do hope that you will choose to

continue your education at Union.” Id. ¶ 86; see also id. at 49.

Two days after this email exchange, on April 11, 2022, Plaintiff’s primary care physician

sent a letter to Union College’s health clinic (“Physician Letter”). See id. ¶ 89. The Physician

Letter recommended that Plaintiff “be ‘granted an exception’ from receiving the booster shot due

to the ‘severe, prolonged symptoms since receiving her COVID vaccines,’ stating, ‘getting this

vaccine is ill advised’ due to [Plaintiff’s] ‘unfavorable state of health, presumably caused by the

vaccine itself.’” Id. (emphases omitted), see also id. at 51–52. That same day, Plaintiff “received

an email from Union College’s Office of Residential Life providing her with 72-hours’ notice of

eviction from campus housing due to her ‘non compliance’ with the booster mandate.” Id. ¶ 91.

On April 13, 2022, Stefanatos emailed Plaintiff to say that, after reviewing the Physician Letter,

Stefanatos and Zeccola had denied Plaintiff an exemption, stating:

Your marked weight loss and GI symptoms preceded the two

vaccines, your weight was down 20 pounds from your baseline in

June of 2022 and you received 2 doses of Pfizer in September. The

vaccine is not associated with gastritis, which is the diagnosis you

received in the ER two weeks after vaccination. Two episodes of

streptococcal sore throat in 7 months is not an indication of a

weakened immune system. There is no evidence in the literature that

vaccination for Covid19 weakens the immune system . . . Please be

advised that this decision is final. Please be further advised that any

student who is denied an exemption and fails to comply with the

COVID-19 vaccination requirement will be subject to conduct

action.

Id. ¶ 93. Plaintiff states that she “had never described weight loss as one of her symptoms” to

Defendants. Id. ¶ 94.

Plaintiff subsequently sent information—information that was procured from a phone call

with a Pfizer representative—to Defendants supporting her claim that “the Pfizer shot was

known to cause gastritis as an adverse consequence to some of receiving the shot.” Id. ¶¶ 102–

05. Union College again denied Plaintiff’s exemption request. See id. ¶ 106.

On April 13, 2022, Union College told Plaintiff that “her ‘classes will be dropped,’ as a

result of purported noncompliance with the ‘health requirements,’ such that she would not be

permitted to live on campus any longer.” Id. ¶ 107. Plaintiff received another notification that

day from Union College that she would be required to leave her campus housing the next day.

See id. ¶ 108. Plaintiff’s meal card was also “terminated such that she could not eat on campus.”

Id. ¶ 109. Plaintiff contacted Union College’s Director of Community Standards, and her meal

card was temporarily reactivated, but the balance “was reduced to a mere $36.78, which was

insufficient to feed her while on campus for more than one day.” Id. ¶¶ 111–12. According to

Plaintiff, “[w]hen the semester began only three weeks earlier, [Plaintiff’s] meal plan had a

balance of over $451.78, most of which had been unused as of April 14, 2022.” Id. ¶ 113.

Plaintiff requested that a recorded meeting be held between Plaintiff, Defendants, and

Plaintiff’s physician. See id. ¶ 117. Brown-McClure responded to the request by stating that “it

was ‘our preference’ that there be no recording of the meeting which was solely to answer ‘any

medical questions that you or your physician may have,’ since the meeting was ‘not an appeal

process or a discussion to reverse the decision.’” Id. ¶ 118. At the meeting, Stefanatos told

Plaintiff “that COVID-19 poses a greater danger to [Plaintiff] than the shot, and that [Plaintiff]

should get the Moderna booster if she had concerns about the Pfizer booster.” Id. ¶ 121. Plaintiff

noted in the meeting the evidence Plaintiff had sent to Defendants regarding gastrointestinal

issues that might be caused by the COVID-19 vaccine. See id. ¶ 122. Stefanatos responded “that

she did not believe that Pfizer was a valid source of such information . . . .” Id. The meeting

concluded with Stefanatos stating that the “the shot has not been proven to prevent the spread of

disease and that she was not advocating for requiring the booster to be mandated for the

upcoming fall semester.” Id. ¶ 123.

On April 14, 2022, Plaintiff was “was involuntarily expelled from all Union

College classes, forced to vacate campus housing, and was not permitted to return physically

back to the campus without receipt of a booster shot.” Id. ¶ 137. The U.S. Department of

Education has also informed Plaintiff “that she owes a partial school tuition reimbursement for

the spring 2022 semester, despite only having attended three weeks of the semester, having

complied with all obligations in existence when she agreed to attend the institution.” Id. ¶ 138.

After Plaintiff left campus, her conflict with Union College gained local media attention.

See id. ¶ 139. In the wake of this attention, Plaintiff states that “Union College has publicly

denied that it expelled Ms. Puentes.” Id. On April 30, 2022, Wadja gave the following statement

to a local news outlet:

While the college cannot discuss the situation surrounding

[Plaintiff] . . . in general terms, we can state emphatically that no

students have been expelled for refusing to get a booster shot. All

students, faculty and staff are required to be vaccinated and boosted,

with exceptions only being made for individuals who have been

granted a medical or religious accommodation. An individual who

chooses not to comply with our policy is not allowed on campus

until they meet the requirement.

Id. On May 6, 2022, Plaintiff “was informed by individuals affiliated with Union College that

members of the Board of Trustees were slandering Ms. Puentes and claiming that she was being

untruthful in her representation of events regarding her expulsion.” Id. ¶ 141.

Plaintiff now brings nine separate claims under federal and state law: (1) intentional

infliction of emotional distress (“IIED”) against Defendants; (2) breach of contract against Union

College; (3) promissory estoppel against Union College; (4) discrimination on the basis of race,

color, religion, disability, and/or national origin pursuant to the New York Human Rights Law

(“HRL”) § 296 against Defendants; (5) exclusion of participation, denial of benefits, and

discrimination on the basis of disability and/or perceived disability pursuant to the Rehabilitation

Act, 29 U.S.C. § 794 (“Section 794”) against Defendants; (6) negligence per se against Union

College; (7) negligence against Union College; (8) libel against Union College and Wadja; and

(9) slander against Union College and Wadja. See id. at 32–39. Plaintiff seeks compensatory

damages, punitive damages, consequential damages, attorneys’ fees and expert costs, and

interest. See id.

Defendants now move to dismiss all but two of Plaintiff’s claims: Plaintiff’s claim of

disability and religious discrimination under HRL2 and Plaintiff’s claim of disability

discrimination under Section 794. See Mot. at 10 n. 2.

III. LEGAL STANDARD

To survive a motion to dismiss pursuant to Federal Rule of Civil Procedure 12(b)(6), a

“complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that

is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 663 (2009) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). A court must accept as true the factual allegations

contained in a complaint and draw all inferences in favor of a plaintiff. See Allaire Corp. v.

Okumus, 433 F.3d 248, 249–50 (2d Cir. 2006). A complaint may be dismissed pursuant to Rule

12(b)(6) only where it appears that there are not “enough facts to state a claim to relief that is

plausible on its face.” Twombly, 550 U.S. at 570. Plausibility requires “enough fact[s] to raise a

reasonable expectation that discovery will reveal evidence of [the alleged misconduct].” Id. at

556.

The plausibility standard “asks for more than a sheer possibility that a defendant has

acted unlawfully.” Iqbal, 556 U.S. at 678 (citing Twombly, 550 U.S. at 556). The Supreme Court

has stated that “the pleading standard Rule 8 announces does not require ‘detailed factual

allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation.” Id. (citing Twombly, 550 U.S. at 555). Where a court is unable to infer more than

the mere possibility of the alleged misconduct based on the pleading facts, the pleader has not

demonstrated that she is entitled to relief and the action is subject to dismissal. See id. at 678–79.

2 Defendants still move to dismiss Plaintiff’s claims of race, color, and/or national origin under

HRL. See Mot. at 19–21.

IV. DISCUSSION

The Court reviews Defendants’ arguments in the order that they are presented in the

Motion.

A. IIED

“In New York, to state a claim for intentional infliction of emotional distress, a plaintiff

must allege: ‘(1) extreme and outrageous conduct, (2) intent to cause severe emotional distress,

(3) a causal connection between the conduct and the injury, and (4) severe emotional distress.’”

Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566, 586 (E.D.N.Y. 2011) (quoting Bender v.

City of New York, 78 F.3d 787, 790 (2d Cir. 1996)). New York law specifies that under the first

element, a “defendant’s conduct must be ‘so outrageous in character, and so extreme in degree,

as to go beyond all possible bounds of decency, and to be regarded as atrocious, and utterly

intolerable in a civilized community.’” Id. (quoting Murphy v. Am. Home Prods. Corp., 58

N.Y.2d 293, 303 (1983)). “Whether the conduct alleged may reasonably be regarded as so

extreme and outrageous as to permit recovery is a matter for the court to determine in the first

instance.” Stuto v. Fleishman, 164 F.3d 820, 827 (2d Cir. 1999). This standard is “extremely

high,” and as such, “[t]his highly disfavored cause of action is almost never successful.” Semper,

786 F. Supp. 2d at 586 (quoting McGown v. City of New York, No. 09-CV-8646, 2010 WL

3911458, at *5 (S.D.N.Y. Sept. 9, 2010)). As Courts in this Circuit have specified, “[a]cts which

merely constitute harassment, disrespectful or disparate treatment, a hostile environment,

humiliating criticism, intimidation, insults or other indignities fail to sustain a claim of [IIED]

because the conduct alleged is not sufficiently outrageous.” Stevens v. New York, 691 F. Supp.

2d 392, 399 (S.D.N.Y. 2009) (citation omitted).

Defendants argue that “Plaintiff has made no attempt to identify any extreme or

outrageous conduct giving rise to her claim.” Mot. at 11. Plaintiff counters by effectively

summarizing the allegations in the Complaint: that Defendants allegedly “forced [Plaintiff] to

risk her health over the recommendations of her personal physician,” engaged in “coercion and

duress” to compel Plaintiff to receive the COVID-19 vaccine, denied Plaintiff’s request for an

exemption despite Plaintiff’s “medical history and her own doctor’s recommendations, and

Pfizer’s evidence,” and defied Plaintiff’s physician’s recommendations. Resp. at 20–22. Plaintiff

argues that Defendants demanded Plaintiff “play ‘Russian Roulette’ with her health,” and as

such, Defendants engaged in conduct that was “reprehensible, beyond the pale, and far beyond

‘merely’ harassment.” Id. at 21–22.

Plaintiff’s argument fails for two primary reasons. First, the Court cannot say that

Defendants’ conduct rose to a level “beyond all possible bounds of decency” that was “utterly

intolerable in a civilized community.” Semper, 786 F. Supp. 2d at 586. At most, Defendants’

actions can be characterized as unaccommodating of Plaintiff’s alleged medical and religious

considerations, and insensitive to Plaintiff’s health and financial situation. This does not,

however, rise to the level of outrageous conduct that shocks the conscience. Plaintiff points to no

analogous case law—and this Court is unaware of such law—that holds that a university’s

forceful attempts to vaccinate an enrolled student over their objections constitutes outrageous

conduct. Colleges and universities place a high priority on maintaining healthy environments for

their students, and many universities in New York State strongly enforced universal vaccinations

in order to combat the COVID-19 pandemic.3 In pursuing these policies, colleges are forced to

3 For example, the State of New York required vaccinations for enrollment in state public

institutions of higher education. See Edward McKinley, COVID-19 vaccination required for

SUNY, CUNY students starting this fall, Times Union,

carefully balance the health and safety of their student populations against the individual liberties

of students who are unwilling or unable to receive the vaccine. An educational institution might

make a misstep while attempting to strike this balance; such mistakes are an inevitable

consequence of the widespread implementation of these complex and novel policies. But the

Court is not inclined to find that errors in policy implementation or administrative judgment are

“utterly intolerable in a civilized community,” provided that they are not accompanied by—or an

expression of—more outrageous conduct.

Furthermore, Courts in this Circuit have dismissed IIED claims against higher education

institutions with facts far more extreme than this case. As Defendants point to in their motion,

the actions taken in Alexiadis v. N.Y. College of Health Professions were significantly more

egregious than the actions take in the instant case. 891 F. Supp. 2d 418 (E.D.N.Y. 2012). In

Alexiadis, the plaintiff removed hand sanitizer fluid from a dispenser and distributed the hand

sanitizer to other students. Id. at 423–24. The defendant-college had the plaintiff expelled and

criminally charged; the plaintiff alleged that this was done because he was HIV-positive, and that

the defendant-college had otherwise started treating him poorly once it learned of his diagnosis.

Id. Despite these actions, the Alexiadis court found that the plaintiff could not sustain an IIED

claim, as even an alleged expulsion on the basis of disability could not rise to the requisite level

of unconscionability. Id. at 436–37 (citing cases). Given that Defendants’ conduct falls far short

https://www.timesunion.com/news/article/COVID-19-vaccination-required-for-SUNY-CUNY-

16165358.php. With respect to private institutions, the state’s three largest private universities—

New York University, Columbia University, and Cornell University—also required COVID-19

vaccinations. See Josh Moody, Colleges Requiring a Coronavirus Vaccine for Fall, U.S. News &

World Report, https://www.usnews.com/education/best-colleges/articles/colleges-requiring-a-

coronavirus-vaccine-for-fall-what-to-know.

of the conduct of the defendants in Alexiadis, this Court cannot find that Plaintiff has met the

first element of an IIED claim.

Plaintiff has also not satisfied the second element of an IIED claim. Plaintiff must show

that Defendants intended “to cause severe emotional distress.” Id. While Plaintiff provides a long

list of alleged misdeeds by Defendants, see Resp. at 20–22, nowhere in the Complaint does

Plaintiff demonstrate that Defendants intended to cause emotional distress.

In summary, the Court dismisses Plaintiff’s IIED claim, as Plaintiff has failed to

adequately plead the first two elements of such a claim.

B. Breach of Contract and Promissory Estoppel

Plaintiff’s breach of contract and promissory estoppel claims are predicated on the

argument that Defendants violated the AOP Scholarship contract, Plaintiff’s contract of

enrollment, and the Handbook. See Compl. at 32–34. Defendants argue that a contract claim

cannot be brought against a college or university that “failed to follow its own policies.” Mot. at

12. Instead, Defendants posit that the only mechanism “for challenging a university’s academic

or administrative actions is through an Article 78 proceeding.” Id.

Article 78 of the New York Civil Practice Law and Rules “establishes a streamlined

process for challenging the determinations of public bodies and administrative agencies.” Doe v.

N.Y. Univ., 537 F. Supp. 3d 483, 490 (S.D.N.Y. 2021). With respect to institutions of higher

education, “[i]nternal administrative and academic determinations . . . are redressable, if at all, in

an article 78 proceeding, not a plenary action.” Rolph v. Hobart & William Smith Colleges, 271

F. Supp. 3d 386, 404 (W.D.N.Y. 2017) (quoting Gertler v. Goodgold, 107 A.D.2d 481, 487, 487

N.Y.S.2d 565 (1st Dep’t 1985)). “‘While decisions of academic institutions are not immune from

judicial scrutiny, review should be restricted to special proceedings under CPLR Article 78,’ as

opposed to a contract or quasi-contractual claim.” Schimkewitsch v. N.Y. Inst. of Tech., No. 19-

CV-5199, 2020 WL 3000483, at *5 (E.D.N.Y. June 4, 2020) (quoting Keles v. Trustees of

Columbia U. in City of N.Y., 903 N.Y.S.2d 18, 18 (1st Dep’t 2010)). “[C]laims based upon the

rights or procedures found in college manuals, bylaws and handbooks may only be reviewed by

way of an Article 78 proceeding in New York State Supreme Court.” Byerly v. Ithaca Coll., 290

F. Supp. 2d 301, 305 (N.D.N.Y. 2003), aff’d, 113 F. App’x 418 (2d Cir. 2004) (citations

omitted). The statute of limitations to bring an Article 78 proceeding is four months. See N.Y.

C.P.L.R. 217(1) (“[A] proceeding against a body or officer must be commenced within four

months.”).

Plaintiff argues that an Article 78 proceeding is not the appropriate vehicle for her claims.

Plaintiff states that “a college’s decision that does not concern a student’s academic competence

or conduct is not subject to Article 78.” Resp. at 15. Non-academic matters, according to

Plaintiff, may be litigated through “a separate plenary action.” Id. Yet as Defendants correctly

point out, see Reply at 7–8, Plaintiff’s understanding of Article 78 is flawed. An Article 78

proceeding is the appropriate remedial avenue for not only academic decisions, but also

administrative decisions. See Rolph, 271 F. Supp. 3d at 404 (“Internal administrative and

academic determinations . . . are redressable, if at all, in an article 78 proceeding, not a plenary

action.” (citation omitted)). Here, Defendants’ actions constituted an internal administrative

determination, as Union College removed a student based on the belief that she failed to adhere

to an internal college policy. This is precisely the kind of administrative action that must be

litigated via an Article 78 proceeding, and Defendants point to highly analogous case law

demonstrating this point. See Reply at 8. In Mitchell v. N.Y. Univ., the New York State Supreme

Court, New York County, considered a case in which New York University banned a student

from campus after the student failed to visit a mental health counselor. No. 150622/13, 2014 WL

123255 (N.Y. Sup. Ct. Jan. 08, 2014). The plaintiff in Mitchell challenged the university’s ban,

but the court found that the university’s decision to ban the plaintiff “involves the ‘exercise of

subjective personal judgment’ and is subject to review via an Article 78 proceeding.” Id. at *1

(quoting Gertler v. Goodgold, 107 A.D.2d 481, 485, 487 N.Y.S.2d 565, aff’d, 66 N.Y.2d 946,

489 N.E.2d 748 (1985)). Much like Mitchell, Plaintiff here challenges a campus ban that was

predicated on Plaintiff’s failure to adhere to a university health requirement. Given the guidance

from the New York State Supreme Court, this Court similarly finds that Plaintiff’s action “is

subject to review via an Article 78 proceeding.” Id.

In addition, Plaintiff’s claim is based in-large part on allegations that Defendants violated

“rights or procedures found in college manuals, bylaws and handbooks.” Byerly, 290 F. Supp. 2d

at 305. Yet courts in this Circuit have made clear that those claims can “only be reviewed by way

of an Article 78 proceeding.” Id.

Given that Plaintiff’s breach of contract and promissory estoppel claims must be brought

under Article 78, those claims are subject to the four-month statute of limitations as specified by

N.Y. C.P.L.R. 217(1). Plaintiff commenced this action on February 28, 2023—nearly eleven

months after she was removed from Union College. See Compl. ¶ 137. Plaintiff’s claims thus fall

well beyond Article 78’s four-month limitations period, and are time barred. For this reason,

Plaintiff’s breach of contract and promissory estoppel claims are dismissed with prejudice.

C. HRL Claims

While Defendants do not move to dismiss Plaintiff’s religious and disability

discrimination claims under HRL, see Mot. at 10 n.2, Defendants do move to dismiss Plaintiff’s

race, color, and/or national origin claims under HRL, see id. at 19–21.

“The pleading standard for an []HRL [claim] is the same as for the analogous federal law

claims.” Cardwell v. Davis Polk & Wardwell LLP, No. 19-CV-10256, 2020 WL 6274826, at *29

n.21 (S.D.N.Y. Oct. 24, 2020) (citing, inter alia, Tolbert v. Smith, 790 F.3d 427, 439 (2d Cir.

2015)). Under the federal standard, “[t]o make out a prima facie case when alleging

discrimination in the educational setting on the basis of race,” a plaintiff must satisfy four

elements: “(1) [s]he is a member of a protected class; (2) [s]he suffered an adverse action in

pursuit of h[er] education by defendant; (3) [s]he was treated differently from similarly situated

students who are not members of the protected class; and (4) [s]he was qualified to continue in

h[er] educational pursuit.” Johnson v. N.Y. Univ., No. 17-CV-6184, 2018 WL 3966703, at *6

(S.D.N.Y. Aug. 20, 2018) (citing Koumantaros v. City Univ. of N.Y., No. 03-CV-10170, 2007

WL 840115 at *8 (S.D.N.Y. Mar. 19, 2007)), report and recommendation adopted, No. 17-CV-

6184, 2018 WL 4908108 (S.D.N.Y. Oct. 10, 2018), aff’d, 800 F. App’x 18 (2d Cir. 2020).

In her Complaint, Plaintiff provides two factual assertions to support her race, color,

and/or national origin HRL claims. First, Plaintiff states that she “was singled out by defendants

due to the lack of her financial resources as a first-generation college student of Mexican-

American heritage.” Compl. ¶ 135. Second, Plaintiff asserts that she “was singled out due to her

Mexican-American heritage, and because she was seen as not being profitable to the school due

to her being on a nearly full scholarship.” Id. ¶ 136. Defendants argue that this is not enough to

show discrimination, arguing that these “conclusory allegations are patently insufficient to plead

[Plaintiff’s] claim.” Mot. at 20. Plaintiff counters by highlighting that she is “a low income, first-

generation, brown-skinned Latina of Mexican heritage . . . attending a private liberal arts college

on a need based scholarship.” Resp. at 27. These, according to Plaintiff, “are sufficient factual

allegations for a fact finder to infer intentional racial and national origin based on

discrimination.” Id. at 27–28.

Defendants have the stronger argument. As the Supreme Court has cautioned, the federal

pleading standard “demands more than an unadorned, the-defendant-unlawfully-harmed-me

accusation,” and a plaintiff must allege more than the mere possibility of the alleged misconduct.

Iqbal, 556 U.S. at 678–79. Here, Plaintiff provides no evidence—other than conclusory

allegations—that she was treated differently on the basis of race, color, or national origin. While

Plaintiff broadly asserts that she was in fact discriminated on such grounds, that assertion is not

supported by any additional factual support. Courts have been very wary of sustaining racial

discrimination claims where a plaintiff has failed to plead clear facts supporting an inference of

discriminatory intent. See, e.g., Ochei v. The Mary Manning Walsh Nursing Home Co., No. 10-

CV-2548, 2011 WL 744738, at *3 (S.D.N.Y. Mar. 1, 2011) (noting that under both federal and

HRL standards, “naked assertions by plaintiff that some protected demographic factor motivated

an employment decision, without a fact-specific allegation of a causal link between defendant’s

conduct and the plaintiff’s membership in a protected class, are simply too conclusory to

withstand a motion to dismiss” (citing, inter alia, Reyes v. Erickson, 238 F. Supp. 2d 632

(S.D.N.Y. 2003))). Additionally, Plaintiff has not demonstrated that “[s]he was treated

differently from similarly situated students who are not members of the protected class.”

Johnson, 2018 WL 3966703, at *6. Plaintiff has not pleaded, for example, that students outside

of her protected class who refused to take the COVID-19 vaccine were permitted to remain on

campus.

Because Plaintiff has only made broad and cursory allegations that Defendants engaged

in discriminatory behavior, Plaintiff’s HRL race, color, and/or national origin discrimination

claims are dismissed.

D. Negligence and Negligence Per Se

Defendants next argue that Plaintiff’s negligence and negligence per se claims must be

dismissed, as Defendants owe no duty to Plaintiff. See Mot. at 21–23.

With respect to negligence, Plaintiff states that “Defendants owed Ms. Puentes a duty not

to impose extra-contractual obligations on her which foreseeably could cause her illness.”

Compl. at 36. Plaintiff alleges that Defendants breached that duty “[b]y compelling [Plaintiff] to

get the shots against her will in order to remain enrolled . . . which directly and proximately

caused her to fall violently ill with physical symptoms and great pain and suffering.” Id. at 37.

With respect to negligence per se, Plaintiff states that Defendants denied Plaintiff “her right

under” federal statute 21 U.S.C. § 300bbb-3 (“Statute”) and federal regulation 45 C.F.R. §

45.116(b)(8) (“Regulation”) “to decline to take the shot based on informed consent and without

penalty.” Id. at 36. Defendants argue that they have no duty to Plaintiff, thus defeating both the

negligence and negligence per se claim. See Mot. at 23–26.

i. Negligence

To plead negligence under New York law, a plaintiff must show that: “(1) the defendant

owed the plaintiff a cognizable duty of care; (2) the defendant breached that duty; and (3) the

plaintiff suffered damage as a proximate result of that breach.” Williams v. Utica Coll. of

Syracuse Univ., 453 F.3d 112, 116 (2d Cir. 2006) (citation omitted). New York courts have

emphasized the difficulty in sustaining a negligence claim by a student against a college of

university, as “New York has affirmatively rejected the doctrine of in loco parentis at the college

level.” Pasquaretto v. Long Island Univ., 964 N.Y.S.2d 599, 599 (App. Div. 2013) (cleaned up).

However, a duty “may be imposed upon a college where it has encouraged its students to

participate in an activity and taken affirmative steps to supervise and control the activity.” Id. at

599.

Plaintiff argues that Defendants’ actions fall under the Pasquraetto “encouraged its

students to participate in an activity” exception. See Resp. at 21. Plaintiff states that Defendants

both “encouraged” and “mandated” that students receive the COVID-19 vaccine and booster. Id.

Plaintiff further argues that because Defendants supervised Plaintiff’s health and rejected

Plaintiff’s requested exemption, Defendants further took on a duty to Plaintiff. Id. at 22. This

argument is unconvincing. Pasquaretto’s “encouraged its student participate in an activity”

language is lifted from another state case, Hores v. Sargent, 646 N.Y.S.2d 165 (App. Div. 1996).

See Pasquaretto N.Y.S.2d at 599. In Hores, a community college facilitated a cycling trip, in

which the college “organized, planned, and supervised” the trip and “examined and selected the

subject bike route, prepared the bike map, operated three vans to assist bicyclists during the trip,

and instructed the participants on safety issues.” 646 N.Y.S.2d at 166. Given this “sufficient

degree of control over the subject event,” the court found that the college had a legal duty to

plaintiff. Id. Here, by contrast, the factual nature is quite different. Defendants were not

organizing an activity or outing that could be potentially dangerous, such as a cycling trip.

Instead, Defendants simply enacted a vaccination policy and enforced that policy. Establishing a

college-wide vaccination policy, in which individual students are both responsible for the timing

and type of vaccine they receive and able to request exemptions, is different from organizing an

“activity” or “event.” Furthermore, Plaintiff does not point to any case law—and this Court is

unaware of the existence of such case law—finding that the imposition and enforcement of

vaccination policies creates an inherent duty on the part of a college or university. Such a finding

would inherently widen the scope of liability against nearly all institutions of higher education,

most of whom enacted COVID-19 vaccine requirements. See supra note 3. This vast expansion

of liability would inherently conflict with New York’s limited scope of duty for universities, as

the state “has affirmatively rejected the doctrine of in loco parentis.” Pasquaretto, 964 N.Y.S.2d.

at 599.

Plaintiff also argues that Defendants have a “duty implied in contract,” and she asserts

that her enrollment at the college and her AOP Scholarship contract created an inherent duty on

the part of the college. See Resp. at 16–21. This argument has two fatal flaws. First, as

Defendants correctly point out, see Reply at 14, duty under a negligence theory does not arise

under New York law simply through contract. Courts have repeatedly emphasized that “[i]t is

well-settled that a claim arising out of an alleged breach of contract may not be converted into a

tort action, absent the violation of a legal duty or special relationship independent of that created

by the contract.” City of Syracuse v. Loomis Armored US, LLC, 900 F. Supp. 2d 274, 303

(N.D.N.Y. 2012) (emphasis added) (citing Givoldi, Inc. v. United Parcel Service, 286 A.D.2d

220, 221, 729 N.Y.S.2d 25 (1st Dep’t 2001)). Second, Plaintiff’s contractual duty theory appears

nowhere in her Complaint. As courts have emphasized, “[a] plaintiff . . . is not permitted to

interpose new factual allegations or a new legal theory in opposing a motion to dismiss.” Uddoh

v. United Healthcare, 254 F. Supp. 3d 424, 429 (E.D.N.Y. 2017). This failure to include the

contractual duty theory in the Complaint thus deprives Plaintiff of the opportunity to make such

an argument here.

For these reasons, the Court dismisses Plaintiff’s negligence claim.

ii. Negligence Per Se

Under New York law, the “violation of a State statute that imposes a specific duty

constitutes negligence per se, or may even create absolute liability.” In re Sept. 11 Prop. Damage

& Bus. Loss Litig., 468 F. Supp. 2d 508, 522 (S.D.N.Y. 2006) (quoting Elliott v. City of New

York, 95 N.Y.2d 730, 734 (2001)), aff’d sub nom. Aegis Ins. Servs., Inc. v. 7 World Trade Co.,

L.P., 737 F.3d 166 (2d Cir. 2013).

Plaintiff’s Complaint suggests that Defendants violated the Statute and the Regulation by

requiring Plaintiff to take the COVID-19 vaccine, and such a violation constitutes negligence per

se. See Compl. at 35–36. Yet, after reviewing both the Statute and Regulation, the Court does not

find any language suggesting that a university or college may not require a student to take a

vaccine. Furthermore, and as Defendants correctly point out, the Statute applies specifically to

“parties . . . that introduce medical products into interstate commerce.” See Mot. at 22 (citing

Wall v. Transportation Sec. Admin., No. 21-CV-1220, 2023 WL 1830810, at *2 (D.C. Cir. Feb.

9, 2023), cert. denied sub nom. Abadi v. Transportation Sec. Admin., 144 S. Ct. 272, (2023)).

The Statute is therefore inapplicable to Defendants. In addition, the Regulation only applies to

“research involving human subjects conducted, supported, or otherwise subject to regulation by

any Federal department or agency.” 45 C.F.R. § 46.101. As this case does not concern “research

involving human subjects,” the Regulation is similarly inapplicable. Given that neither the

Statute nor Regulation apply to Defendants, Defendants could not have violated either. The

claim is therefore dismissed with prejudice.

E. Libel and Slander

Defendants next move to dismiss Plaintiff’s libel and slander claims. See Mot. at 23–26.

Plaintiff does not appear to challenge Defendants’ argument anywhere in her Response. See

generally Resp. The Complaint hinges its libel and slander claims on the allegation that Wadja’s

comments to local media—specifically, Wadja’s statement that “we can state emphatically that

no students have been expelled for refusing to get a booster shot”—“called [Plaintiff’s]

truthfulness and integrity into question and falsely painted [Plaintiff] as a liar.” Compl. at 37–39.

“Defamation is the injury to one’s reputation either by written expression, which is libel,

or by oral expression, which is slander.” Biro v. Conde Nast, 883 F. Supp. 2d 441, 456 (S.D.N.Y.

2012) (citation omitted). “Under New York law, a plaintiff must establish five elements to

recover in libel: (1) a written defamatory statement of fact concerning the plaintiff; (2)

publication to a third party; (3) fault (either negligence or actual malice depending on the status

of the libeled party); (4) falsity of the defamatory statement; and (5) special damages or per se

actionability (defamatory on its face).” Id. (quoting Celle v. Filipino Reporter Enters. Inc., 209

F.3d 163, 176 (2d Cir. 2000)). Per se actionability occurs if a statement is made that “(1) charges

the plaintiff with a serious crime; (2) tends to injure the plaintiff in her trade, business, or

profession; (3) accuses the plaintiff of having a loathsome disease; or (4) imputes unchastity to a

woman.” Cain v. Esthetique, 182 F. Supp. 3d 54, 72 (S.D.N.Y. 2016), aff’d sub nom. Cain v.

Atelier Esthetique Inst. of Esthetics Inc., 733 F. App’x 8 (2d Cir. 2018). If an alleged defamatory

statement relates to “any communication in a place open to the public or a public forum in

connection with an issue of public interest,” then a plaintiff must plead “actual malice” pursuant

to New York’s anti-SLAPP statute. N.Y. Civ. Rights Law § 76-a. Public interest is defined

“broadly,” and relates to “any subject other than a purely private matter.” Id. Actual malice is

“defined as ‘knowledge of its falsity or reckless disregard for the truth.’” Coleman v. Grand, 523

F. Supp. 3d 244, 255 (E.D.N.Y. 2021) (quoting Gertz v. Robert Welch, Inc., 418 U.S. 323, 342

(1974)).

Here, Plaintiff has failed to plead the final element of a libel or slander claim: special

damages or per se actionability. See Mot. 24–26. A plaintiff is required to plead special damages

“with sufficient particularity,” and generalized statements regarding harms incurred do not

constitute such particularity. LoanStreet, Inc. v. Troia, No. 21-CV-6166, 2022 WL 3544170, at

*8 (S.D.N.Y. Aug. 17, 2022). “Special damages consist of ‘the loss of something having

economic or pecuniary value which must flow directly from the injury to reputation caused by

the defamation.’” Celle, 209 F.3d at 179 (quoting Matherson v. Marchello, 100 A.D.2d 233, 235,

473 N.Y.S.2d 998 (2d Dep’t 1984)). Here, Plaintiff has not pled special damages. Plaintiff states

that Wadja’s statements “stand[] to cause special harm to [Plaintiff], who one day hopes to attend

law school and take bar examinations such that her character and fitness to practice law,

including with respect to her being expelled from Union College, will be called into question.”

Compl. at 38. This kind of pleading for special damages—in which a plaintiff states that future

career or educational opportunities may be harmed by allegedly libelous or slanderous

statements—has been routinely rejected by courts in this Circuit. See, e.g., Lue v. JPMorgan

Chase & Co., No. 19-CV-9784, 2021 WL 1108558, at *6 (S.D.N.Y. Mar. 23, 2021) (finding that

a plaintiff had failed to plead special damages where the plaintiff alleged that her “career

prospects have been drastically reduced” by the defendant’s statements); D.W.M. by Moore v.

St. Mary Sch., No. 18-CV-3099, 2019 WL 4038410, at *17 (E.D.N.Y. Aug. 27, 2019) (finding

that special damages had not been pleaded where a plaintiff alleged, inter alia, that a defendant’s

statements may have caused a “loss of academic and future opportunities”). Furthermore,

Plaintiff pleads no “loss of something of economic or pecuniary value.” Celle, 209 F.3d at 179.

Plaintiff has also not pled per se actionability. Plaintiff might argue that she falls into the

second category of per se libel or slander: speech that “tends to injure the plaintiff in her trade,

business, or profession.” Cain, 182 F. Supp. 3d at 72. Yet as Defendants correctly point out, see

Mot. at 25, a student is not considered a “profession” under the Cain standard. See Cain, 182 F.

Supp. 3d at 73 (finding that applying the “trade, business, or profession . . . category to students .

. . makes little sense,” as such an application “is too speculative to justify the presumption of

damages” (citations omitted)). Therefore, because Plaintiff has failed to plead per se actionability

or special damages, she has failed to meet the final element of a libel or standard claim.

Because Plaintiff has failed to plead special damages or per se actionability, her libel and

slander claims fail and are dismissed.

F. Dismissal With Prejudice

Finally, Defendants move to dismiss each of the claims discussed in the Motion with

prejudice, arguing that “there are significant substantive defects in Plaintiff’s Complaint, which

cannot be cured by amendment.” Id. at 26–27. The Court agrees to some extent, and dismisses

Plaintiff’s breach of contract, promissory estoppel, and negligence per se claims with prejudice.

Yet the Court declines to dismiss Plaintiff’s HRL, IIED, negligence, libel, and slander claims

with prejudice. The Court cautions, however, that it is very skeptical that Plaintiff can plead

sufficient facts in an amended filing to support these claims, and that only a substantial change in

the pleadings would allow these claims to proceed.

V. CONCLUSION

Accordingly, it is hereby:

ORDERED, that Defendants’ Motion, Dkt. No. 8, is GRANTED in part and DENIED

in part; and it is further

ORDERED, that Plaintiff’s claims for breach of contract (Count II); promissory estoppel

(Count III); and negligence per se (Count VI) are DISMISSED with prejudice; and it is further

ORDERED, that Plaintiffs claims for intentional infliction of emotional distress (Count

I); discrimination on the basis of race, color, and/or national origin under N.Y. Human Rights

Law § 296 (Count IV)*; negligence (Count VIN); libel (Count VIII); and slander (Count IX) are

DISMISSED without prejudice; and it is further

ORDERED, that the Clerk serve a copy of this Memorandum-Decision and Order on all

parties in accordance with the Local Rules.

IT IS SO ORDERED.

DATED: March 28, 2024

Albany, New York

AWRENCE E. KAHN

United States District Judge

* Plaintiffs discrimination on the basis of religion and disability claims under N.Y. Human

Rights Law § 296 were not challenged by Defendants and therefore survive.

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