FILED: NEW YORK COUNTY CLERK 06/28/2013 INDEX NO. 155967/2013 NYSCEF DOC. NO. 1 RECEIVED NYSCEF: 06/28/2013 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHELLE-MARIE HEINEMANN AND JON HEINEMANN, --against-- Plaintiffs, Index No.: SUMMONS Basis of venue is Plaintiffs' residence. THE CATHEDRAL SCHOOL OF ST. JOHN THE DIVINE, Defendant. TO THE ABOVE-NAMED DEFENDANT: YOU ARE HEREBY SUMMONED and required to serve upon Plaintiffs' attorney an answer to the complaint in this action within 20 days after the service of this summons, exclusive of the day of service, or within 30 days after service is complete if this summons is not personally delivered to you within the State of New York. In case of your failure to answer, judgment will be taken against you by default for the relief that is demanded in the complaint. Defendant is a resident of the County of New York, State of New York. Date: June 26, 2013 Respectfully S By: Randy Fri/6er White a s LLP One Pe P 250. 34th Street, Suite 4110 New York, NY 10119 Phone: 212-244-9500 E-mail: friedbergr@whiteandwilliams.com Attorneys for Plaintiffs Michelle-Marie and Jon Heinemann 1 1492753v.2-1-
SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK MICHELLE-MARIE HEINEMANN AND JON L. HEINEMANN, : Index No.: Plaintiffs, --against-- : COMPLAINT THE CATHEDRAL SCHOOL OF ST. JOHN THE DIVINE, Defendant. Plaintiffs MICHELLE-MARIE HEINEMANN AND JON L. HEINEMANN, by and through their attorneys, White and Williams LLP, respectfully allege as follows: THE PARTIES 1. Plaintiffs are individuals and residents of the State of New York, with an address of 923 5 Avenue, New York, New York 10021. Plaintiff Michelle-Marie Heinemann is a renowned artist whose works have sold for tens of thousands of dollars. Plaintiff Jon L. Heinemann is the principal of a private investment fund. 2. Upon information and belief, Defendant Cathedral School of St. John the Divine is an independent, for-profit, K-8 private day school having an address of 1047 Amsterdam Avenue, New York, New York 10025. 3. Upon information and belief, Defendant School was and is a domestic corporation organized and existing under and by virtue of the laws of the State of New York. -2-
FACTUAL BACKGROUND 4. Upon information and belief, Defendant School provides educational instruction to children from kindergarten through the eighth grade. 5. Defendant School boasts that it "prides itself in being a diverse community in partnership with families who take an active role in their children's intellectual, ethical, social, and emotional growth. The Cathedral School offers a stimulating environment in which each child can become an articulate, confident, and responsible citizen of the world." 6. Upon information and belief, Defendant School charges approximately $39,000 in tuition a year for children to attend the school. 7. Defendant School's website states that "The School is committed to a rigorous academic program that integrates the arts, athletics, and leadership development." 8. At all relevant times, Plaintiffs' son attended Defendant School and Plaintiffs paid tuition. The Bias Against Plaintiffs' Son 9. During the 2012-2013 academic year, Plaintiffs determined that Plaintiffs' son was subjected to disparate and unfair treatment at Defendant School. 10. Although Plaintiffs made efforts to communicate with administrators at Defendant School they were faced with an remarkable lack of communication. 11. Administrators and other employees at Defendant School discriminated against Plaintiffs' son in a variety of ways. Plaintiffs' son was consistently left out of School exhibits and films (the entire class was in evidence, except for Hudson) and was made to go last at nearly everything. -3-
12. On one occasion, Plaintiffs' five-year-old son was relegated to the role of "doorholder" and ordered to hold the door for all of the other students. 13. Plaintiffs were not provided with feedback concerning their son's education. In fact, no artwork and very little schoolwork was ever sent home. 14. Whenever Plaintiffs tried to discuss their issues with administration or teachers at Defendant School, rather than being listened to they were either ignored or otherwise met with resentment. 15. On February 22, 2013, pursuant to Plaintiffs' repeated requests to improve this situation, Plaintiffs met with representatives of Defendant School, in particular Marsha K. Nelson and Peter Maas, administrators employed by Defendant School, to discuss Plaintiffs' concerns regarding both the instruction their son was receiving and the treatment he was receiving at Defendant School. 16. Plaintiffs expressed their concern that their son was being mistreated by teachers and staff of Defendant School and not receiving proper educational instruction because certain of the teachers and staff disliked Plaintiffs and the fact that Plaintiffs were generous donors to the school. 17. Ms. Nelson and Mr. Maas, denied any problem and expressed ignorance as to the treatment of Plaintiffs' son and/or any bias against Plaintiffs. 18. Despite their denials, Ms. Nelson and Mr. Maas, on behalf of Defendant School, agreed to meet with Plaintiffs' son's teachers to determine if there was a problem. 19. Ms. Nelson and Mr. Maas, on behalf of Defendant School, agreed to schedule additional meetings between themselves, the appropriate teachers, and Plaintiffs to address any further concerns. -4-
The Auction Scam 20. Based on Defendant School's assurances that Plaintiffs' concerns would be addressed, Plaintiffs agreed not withdraw their son from Defendant School and to participate in future fund raising efforts on behalf of Defendant School, including a silent auction (the "Auction") to be held on March 1, 2013. 21. As part of their participation in the Auction, Plaintiffs purchased and donated $6,000 worth of designer clothing items, specifically for the Auction. 22. Additionally, Plaintiff Michelle-Marie Heinemann, a renowned artist whose works have sold for tens of thousands of dollars, donated significant amounts of her time to work with the children at the school on an art project to be included in the Auction (the "Artwork") 23. Upon information and belief, the Auction was conducted using the BidPal automated auction system, in which participants use a device pre-loaded with auction items including descriptions, photos, values, bid increments, and donor information. 24. Upon information and belief, participants in the Auction could use their device to bid at any time during the event or could set a maximum bid amount and let the device automatically increase a participant's bid as necessary. 25. Plaintiffs were not present at the Auction, but gave Defendant School their proxy to bid on the Artwork. 26. Plaintiffs instructed Defendant School that Plaintiffs wanted the Artwork and Defendant School should bid until Plaintiffs won the Artwork. 27. Plaintiffs provided their bidding instructions based on Defendant School's advice that items such as the Artwork customarily sell at the Auction for between $500 and $1,200. 11492753 v.2-5-
28. Upon information and belief, the intentional actions of high ranking employees of Defendant School caused the Artwork to be sold at auction to Plaintiffs for the outrageous sum of $50,000. 29. Ann LaForge ("LaForge"), the Director of Advancement for the School, was fully aware of Plaintiffs' instructions with respect to bidding on the Artwork. 30. Upon information and belief, LaForge entered a maximum bid into the BidPal system on behalf of Plaintiffs at approximately $50,000. 31. Upon information and belief, after LaForge set the exorbitant bid limit, LaForge instructed Ms. Bryant, a first-grade teacher also employed by Defendant School, to use the automatic bidding of the system to bid against Plaintiffs and raise the price of the Artwork. 32. Upon information and belief, LaForge instructed Ms. Bryant that she should not be concerned about not having the funds to purchase the Artwork because she would not be held liable for the bids. 33. As the bidding for the Artwork exceeded $45,000, LaForge instructed Ms. Bryant to stop bidding. 34. Upon information and belief, the Artwork should not have exceeded a bid of $3,000, but for the actions of a high ranking employee of the Defendant School. 35. Upon information and belief, the teachers and staff of Defendant School knew about the fraud that occurred at the Auction and discussed those events openly. Defendant School's Failure to Act 36. Despite assurances to Plaintiffs that Defendant School would address the ongoing biases held by certain teachers and staff against Plaintiffs and their son, Defendant School took no steps to address the problem. -6-
37. Further, Defendant School allowed its high ranking employees, who held such opinions of Plaintiffs, to perpetuate the fraud against Plaintiffs at the Auction. 38. As a direct result of the actions of Defendant School and its employees, Plaintiffs were left with no choice but to remove their son from Defendant School. 39. Only after Plaintiffs removed their son from Defendant School did Defendant School address the egregious conduct it allowed to occur at the Auction by terminating LaForge. 40. By the time of such action, however, the damage to Plaintiffs and their son was already done. COUNT ONE Breach of Contract 41. Plaintiffs restate the allegations contained in the paragraphs 1-40 above as if fully set forth herein. 42. Plaintiffs entered into a valid contract with Defendant School for Defendant School to provide educational instruction to the standards set forth on Defendant School's website, in a safe and welcoming environment, and paid $39,000 in tuition in performance of that contract. 43. Defendant School breached its contract with Plaintiffs in failing to provide the rigorous educational instruction it promised to Plaintiffs and in failing to live up to the standards it espouses on its website that "children at The Cathedral School come to understand the inherent value of all people." 44. As a direct result of the breach of Defendant School's contract with Plaintiffs, Plaintiffs were forced to relocate so that their son could complete the school year at school. That relocation has resulted in the following damages: I 1492753v.2-7-
a. Tuition to a new school- $20,000; b. Forfeiting deposit paid to Defendant School for the following school year- $5,000; c. Maintaining the employment of a family driver that is no longer needed due to the relocation- $60,000; d. Continuing the employment of the family housekeeper that is no longer needed due to the relocation- $1,200 per week; e. Forfeited class fees for Plaintiffs' other children's classes- $18,500; and f. Various other costs and fees associated with uprooting a family's life. 45. The Defendant School's breach of contract has caused damages to Plaintiffs of at least $165,900. COUNT TWO Fraudulent Misrepresentation 46. Plaintiffs restate the allegations contained in paragraphs 1-45 above as if fully set forth herein. 47. Defendant School assured Plaintiffs that the instruction and treatment of their son would be addressed and that the biases of certain staff members would not be allowed to effect their son or his education. 48. Relying on Defendant School's assurances that any problems would be addressed, Plaintiffs agreed to keep their son in Defendant School and to participate in future fund raising efforts on behalf of Defendant School, including the Auction. -8-
49. Defendant School had no intention of addressing the treatment of Plaintiffs' son or the undue biases of the teachers and staff of Defendant School and merely sought to continue to use Plaintiffs to further Defendant School's fund raising goals. 50. Concerned only with meeting its fund raising goals, Defendant School allowed its employees to artificially inflate the price of the Artwork during the Auction. 51, Defendant School allowed a scheme that sought to extract $50,000 from Plaintiffs for goods that were not worth more than $3,000. 52. Once this scheme was revealed, Plaintiffs had no choice but to remove their son from Defendant School, despite the school year being in progress. 53. In addition to the significant cost Plaintiffs were forced to incur as a result of uprooting their lives, Plaintiffs and their son were forced to endure humiliation and emotional damages as a direct result of the actions of Defendant School. 54. The Defendant School's fraudulent misrepresentation has caused damages to Plaintiffs of at least $250,000. -9-
WHEREFORE, Plaintiffs demand a judgment in their favor and against Defendant School for: (a) $415,900, plus interest; (b) further damages and consequential damages; (c) costs; (d) fees; (e) attorneys' fees; (f) expenses; and (g) any other relief that the Court may deem just and proper. Date: June 26, 2013 Respectfully Submi Randy Fried1 White and it One Penn laza 250 W. 3,4th Street. Suite 4110 New York, NY 10119 Phone: 212-244-9500 E-mail: friedbergr@whiteandwilliams.com Attorneys for Plaintiffs Michelle-Marie and Jon Heinemann -10-