UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK ---------------------------------------X ELIZABETH REKOWICZ and STEVEN CONGEMI,
Plaintiffs,
-against- MEMORANDUM & ORDER 11-CV-1561(JS)(WDW) SACHEM CENTRAL SCHOOL DISTRICT,
Defendant. ---------------------------------------X APPEARANCES For Plaintiffs: Scott M. Mishkin, Esq. Kyle T. Pulis, Esq. Scott Michael Mishkin, P.C. One Suffolk Square, Suite 240 Islandia, NY 11749
For Defendant: Joseph E. Madsen, Esq. Susan E. Fine, Esq. Ingerman Smith, L.L.P. 150 Motor Parkway, Suite 400 Hauppauge, NY 11788
SEYBERT, District Judge:
Currently pending before the Court is Defendant Sachem
School District’s (“Defendant” or the “District”) motion to
dismiss the Amended Complaint.1 For the following reasons,
Defendant’s motion is GRANTED IN PART and DENIED IN PART.
1 Also pending before the Court is Plaintiffs’ motion to amend the Amended Complaint, which has been referred to Magistrate Judge William D. Wall, and therefore will not be addressed in this Memorandum and Order.
BACKGROUND
A. Factual Background2
The Court presumes familiarity with the underlying
facts of this case, which are detailed in the Court’s prior
orders. Briefly, Plaintiffs are Elizabeth Rekowicz (“Rekowicz”)
and her son, Steven Congemi (“Congemi” and together with
Rekowicz, “Plaintiffs”). Congemi is a former student of the
District who was first diagnosed with the neurological disorder
of Tourette’s Syndrome in the seventh grade. (Am. Compl. ¶ 5.)
Congemi has also been diagnosed with Attention-
Deficit/Hyperactivity Disorder and Obsessive Compulsive
Disorder. (Am. Compl. ¶ 8.) As such, the District classified
Congemi as a student with “Other Health Impaired.” (Am. Compl.
¶ 6.)
Plaintiffs allege that the District denied Congemi of
a free appropriate public education (“FAPE”). Plaintiffs claim
that the District accelerated Congemi through to graduation
before he was educationally or developmentally prepared to do
so. (Am. Compl. ¶ 18.) More specifically, they contend that
the District manipulated Congemi’s test scores and graded
Congemi’s examinations based solely upon questions that Congemi
chose to answer, rather than upon the complete exam. (Am.
The following facts are taken from Plaintiffs’ Amended Complaint 2
and are presumed to be true for the purposes of this Memorandum and Order. 2
Compl. ¶¶ 59-60, 62.) These actions ultimately inflated
Congemi’s scores and thus expedited his graduation from the
District, which took place in June 2010.3
Plaintiffs also allege that Congemi’s Individualized
Education Plans (“IEPs”) were not reasonably calculated to
enable Congemi to receive the educational benefits of the
District. (Am. Compl. ¶ 21.) In addition to manipulating his
test scores and omitting any such grade modification from
Congemi’s IEPs (Am. Compl. ¶ 22 (“The IEP’s [sic] that were put
in place for [Congemi], in addition to the District’s bad faith
conduct, were not likely to produce educational progress, but
rather, promoted regression, as [Congemi] was pushed through
school with manipulated test scores and was permitted to advance
with incomplete assignments.”)), Plaintiffs maintain that the
District implemented IEPs that failed to prepare Congemi for
further education, employment, and independent living. (Am.
Compl. ¶ 39.)
In addition, Plaintiffs allege that James Nolan, the
Principal at Sachem North High School, authorized that Congemi
3 The Amended Complaint does not provide the actual date of graduation, although the parties seem to agree that Congemi graduated from the District in 2010. (Def.’s Br. in Support of Mot. to Dismiss (“Def.’s Br.”), Docket Entry 35-2, at 3; Pls.’ Opp. Br., Docket Entry 39, at 8.)
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be on a truncated day for three years.4 (Am. Compl. ¶ 53.)
While Congemi was in class, the District and its employees
condoned Congemi leaving the classroom and sitting out if he
felt “his disabilities presenting,” another issue that was not
addressed in his IEPs. (Am. Compl. ¶¶ 70-71.)
The Amended Complaint also alleges that from November
7, 2007 through January 25, 2008, Congemi was left home without
any instruction, education services, and/or counseling. (Am.
Compl. ¶¶ 73, 83.) Furthermore, although not clearly explained
in the Amended Complaint, Plaintiffs also apparently allege that
the District deprived Congemi of educational programs when he
was enrolled at the Education and Assistance Corporation Suffolk
Learning Center (“EAC”), an alternative school for special needs
students.5 (Report and Recommendation (“R&R”), Docket Entry 26,
at 3-4.)
On August 19, 2009, Plaintiffs filed a complaint for
an impartial hearing before an Impartial Hearing Officer (“IHO”)
regarding the 2007-2008 and 2008-2009 school years. (Am. Compl.
¶ 87.) On October 1, 2010, IHO George Hunter Roberts denied
Plaintiffs’ requested relief. (Am. Compl. ¶ 92.) Plaintiffs
4 The Amended Complaint does not specify the actual time period-- i.e., what grades or years--that Congemi was on a truncated schedule.
5 According to Defendant, and Plaintiffs apparently do not dispute, Congemi was placed at the EAC in January 2008. (Def.’s Br. at 2.) 4
then appealed to a State Review Officer (“SRO”), who dismissed
the appeal on December 30, 2010. (Am. Compl. ¶¶ 93-94.)
Thereafter, Plaintiffs filed for an impartial hearing regarding
the 2009-2010 school year. (Am. Compl. ¶ 102.) An IHO denied
their request on November 3, 2011. (Am. Compl. ¶ 103.) Again,
Plaintiffs appealed, and an SRO denied their appeal on January
5, 2012. (Am. Compl. ¶¶ 104-05.)
B. Procedural Background
Rekowicz originally commenced this action pro se on
March 30, 2011 on behalf of Congemi alleging violations of the
Individuals with Disability Education Act (the “IDEA”), 20
U.S.C. § 1400 et seq. Thereafter, she obtained counsel and
sought leave to amend the Complaint (the “First Motion to
Amend,” Docket Entry 20). The Proposed Amended Complaint
(“PAC”) sought: (1) to add Congemi as a plaintiff; (2) to add
eleven current and former employees of the District as
defendants; and (3) to assert claims under the Americans with
Disabilities Act, 42 U.S.C. § 12101 et seq. (the “ADA”), the
Rehabilitation Act, 29 U.S.C. § 794 (the “RA”), 42 U.S.C. § 1983
(“Section 1983”), and the IDEA. (PAC, Docket Entry 20-3.)
In opposition to the motion to amend, Defendant
argued: (1) that the Court should deny any amendment to add
causes of action against the individually named defendants, or
at least with respect to the proposed Section 1983 claims,
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because Rekowicz failed to sufficiently plead their personal
involvement and because they are protected by immunity; (2) that
the Court should deny an amendment to add a Section 1983 claim
against the individual defendants because Plaintiffs already
availed themselves of the administrative remedy mechanism and
were denied relief; (3) that the Court should deny an amendment
to add a claim under RA § 504 against the individual defendants
because the Proposed Amended Complaint impermissibly sought
damages; and (4) that the Court should deny an amendment to add
a claim under the IDEA against the individual defendants because
the IDEA does not provide for money damages. (See generally
Def.’s Opp. to First Mot. to Amend, Docket Entry 21.)
With respect to Plaintiffs’ proposed claim under the
RA, Defendant argued that the allegations were, in essence,
challenges to the content and sufficiency of Congemi’s
educational plan. (Def.’s Opp. to First Mot. to Amend at 13.)
Accordingly, the District asserted that, the Court should defer
to the SRO’s findings that the District provided Congemi with a
FAPE. (Def.’s Opp. to First Mot. to Amend at 13-14.)
Specifically, the District argued that “[t]he SRO’s decision
flatly contradicts the proposed allegations that [Congemi] was
denied access to the DISTRICT’s programs - an essential element
of a viable claim under § 504,” and, therefore, Plaintiffs’ RA
claim failed. (Def.’s Opp. to First Mot. to Amend at 14.)
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With respect to the proposed IDEA claims against the individual
defendants, the District argued that Plaintiffs’ proposed claims
were for money damages under the IDEA but that such damages are
not available under the statute. (Def.’s Opp. to First Mot. to
Amend at 15-17.)
On July 2, 2012, Magistrate Judge E. Thomas Boyle
issued an R&R recommending that Rekowicz’s motion to amend the
Complaint be granted in part and denied in part. With respect
to adding Congemi as a plaintiff, Judge Boyle noted that the
District did not oppose, and therefore recommended that Congemi
be added to the caption as he was no longer a minor. (R&R at 1-
2 n.2.)
With respect to Rekowicz’s proposed Section 1983
claims, Judge Boyle separately addressed the proposed claims
against the District and those against the individual
defendants. The R&R concluded that Rekowicz had failed to
properly allege the personal involvement of most of the
individually named defendants, thus precluding a Section 1983
claim against them. (R&R at 8-10.) However, Judge Boyle found
that Rekowicz had properly alleged a Section 1983 claim against
one individual defendant, Principal Nolan. (R&R at 8-10.)
According to the Proposed Amended Complaint, Nolan “authorized
[Congemi] to be on a truncated day for three (3) years . . . .”
(PAC ¶ 139.) As such, Rekowicz alleged that Congemi was on a
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reduced schedule which inhibited him from achieving the goals
set out in his IEP. (PAC ¶ 142.) Judge Boyle concluded that
such allegations constituted a sufficient showing of Nolan’s
personal involvement, and therefore recommended that the motion
to amend the Complaint be granted insofar as Plaintiffs sought
to bring a Section 1983 claim against Nolan.
As to the District, Judge Boyle concluded that in
order to properly bring a Section 1983 claim, Rekowicz must
allege “‘that the challenged acts were performed pursuant to a
municipal policy or custom.’” (R&R at 11 (quoting Scaggs v.
N.Y. State Dep’t of Educ., No. 06-CV-0799, 2007 WL 1456221, at
*14 (E.D.N.Y. May 16, 2007).) He found that Rekowicz had failed
to properly plead such a policy or custom, but then considered
whether Nolan could be considered a policy-maker such that his
actions could support a Section 1983 claim against the District.
(R&R at 11-13.) Judge Boyle found that the only allegations
regarding Nolan pertained to his decision to put Congemi on a
truncated schedule and that an isolated incident was
insufficient to impose liability against the District. (R&R at
13.) Accordingly, he recommended that the proposed amendment to
add a Section 1983 claim against the District be denied.
Judge Boyle then turned to the proposed RA and ADA
claims. First, he stated that neither the RA nor the ADA allows
for suits against the individual defendants in their official
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capacities, and therefore such amendments should be denied. (R&R
15-16.) Second, he noted that “[a] plaintiff seeking relief
pursuant to the Rehabilitation Act or the ADA must demonstrate
that he or she did not enjoy equal access to the school’s
programs.” (R&R at 16 (citing J.D. ex rel. J.D. v. Pawlet Sch.
Dist., 224 F.3d 60, 70 (2d Cir. 2000).) Further, Judge Boyle
stated that “[w]here a plaintiff seeks monetary damages under
either the ADA or the Rehabilitation Act, courts in this Circuit
have required proof that the defendant intentionally violated
the statutes.” (R&R at 16 (citing A.M. v. N.Y.C. Dep’t of
Educ., No. 08-CV-1962, 2012 U.S. Dist. LEXIS 4866, at *46
(E.D.N.Y. Jan. 17, 2012).) However, Judge Boyle found that
Rekowicz had alleged only that the District failed to provide
Congemi with a FAPE and that such allegations, without more,
were insufficient grounds for an ADA or RA claim. (R&R at 17.)
Accordingly, he concluded that an amendment to add such claims
would be futile.
Finally, Judge Boyle found that an amendment to add a
claim for money damages against the proposed individual
defendants under the IDEA would also be futile because money
damages are not an available remedy under the IDEA. (R&R at
18.) The only way that Plaintiffs could properly seek money
damages is if they could also maintain a Section 1983 action,
but as Judge Boyle had already found that those claims were
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futile, he also recommended denying Rekowicz’s request to add an
IDEA claim for money damages against the individual defendants.
On September 17, 2012, this Court adopted in part
Judge Boyle’s R&R. Primarily, the Court agreed with Judge
Boyle, and adopted his recommendations that Congemi be added as
a plaintiff and that the motion be denied insofar as it sought
to include a Section 1983 claim against the District and IDEA
claims for monetary damages against the individual defendants.
(See Docket Entry 30, the “September Order.”) The Court also
adopted Judge Boyle’s recommendation that the amendment to add
Section 1983 claims against most of the individual defendants be
denied, but also found that such an amendment should be denied
with respect to Nolan as well. (September Order at 3-4.) The
September Order noted that Plaintiffs’ allegations against
Nolan--that he approved a truncated schedule for Congemi--
essentially asserted that Congemi was deprived of a FAPE.
(September Order at 3-4.) “Because [P]laintiffs cannot use
Section 1983 to obtain damages for IDEA violations absent
allegations that they were denied IDEA’s ‘procedural safeguards
or administrative remedies,’” the Court concluded, “Plaintiff’s
Section 1983 claim against Nolan is futile.” (September Order
at 4 (quoting Streck v. Bd. of Educ. of E. Greenbush Sch. Dist.,
280 F. App’x 66, 68 (2d Cir. 2008).)
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As to Plaintiffs’ proposed ADA and RA claims, the
Court disagreed with Judge Boyle that Plaintiffs had failed to
allege that the District acted in bad faith or with gross
misjudgment. More specifically, the Court found that
Plaintiffs’ allegations that District employees manipulated
Congemi’s test scores to accelerate his progress sufficiently
supported a claim under the ADA and RA. (September Order at 6-
7.) As such, Plaintiffs were permitted to amend the Complaint
in order to proceed with such claims against the District.
On November 5, 2012, Plaintiffs filed an Amended
Complaint pursuant to the September Order. Currently pending
before the Court is Defendant’s motion to dismiss the Amended
Complaint.
DISCUSSION
Defendant moves to dismiss the Amended Complaint on
three main grounds: (1) to the extent that the Amended Complaint
alleges an IDEA claim against the District for monetary damages,
such a claim should be dismissed as this is not an available
remedy under the statute; (2) Plaintiffs’ ADA and RA claims
should be dismissed; and (3) the allegations against Defendant
are largely time-barred by the applicable statute of
limitations. The Court will first discuss the standard of
review on a motion to dismiss before turning to Defendant’s
motion.
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I. Legal Standard
In deciding Rule 12(b)(6) motions to dismiss, the
Court applies a “plausibility standard,” which is guided by
“[t]wo working principles.” Ashcroft v. Iqbal, 556 U.S. 662,
678, 129 S. Ct. 1937, 173 L. Ed. 2d 868 (2009); accord Harris v.
Mills, 572 F.3d 66, 71-72 (2d Cir. 2009). First, although the
Court must accept all allegations as true, this “tenet” is
“inapplicable to legal conclusions;” thus, “[t]hreadbare
recitals of the elements of a cause of action, supported by mere
conclusory statements, do not suffice.” Iqbal, 556 U.S. at 678;
accord Harris, 572 F.3d at 72. Second, only complaints that
state a “plausible claim for relief” can survive a Rule 12(b)(6)
motion to dismiss. Iqbal, 556 U.S. at 679. Determining whether
a complaint does so is “a context-specific task that requires
the reviewing court to draw on its judicial experience and
common sense.” Id.; accord Harris, 572 F.3d at 72.
II. IDEA Claim Against the District
As Defendant correctly notes, the Amended Complaint
does not make clear the extent to which Plaintiffs intend to
assert an IDEA claim against the District for monetary damages.
(See Def.’s Br. at 6.) Although the “wherefore” clause of the
Amended Complaint omits any reference to the IDEA, the Amended
Complaint itself makes various references to the IDEA and
whether the District provided Congemi with a FAPE. Moreover,
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Judge Boyle’s R&R and this Court’s September Order addressed
Plaintiffs’ motion only insofar as Plaintiffs sought to bring an
IDEA claim for money damages against the individual defendants,
leaving open the viability of any such claim against the
District.
The September Order did, however, imply that an IDEA
claim against the District for money damages could not stand.
(September Order at 7.) The Court now explicitly holds that,
for the reasons expressed in both the R&R and the September
Order, Defendant’s motion in this regard is GRANTED, and
Plaintiffs’ claim against the District under the IDEA for money
damages is DISMISSED. The Court notes that Plaintiffs have
again moved to amend. As such, Plaintiffs’ IDEA claim against
the District is DISMISSED WITHOUT PREJUDICE.
III. ADA and RA Claims
Defendant next moves to dismiss Plaintiffs’ ADA and RA
claims because Plaintiffs’ allegations “claim that [Congemi] was
denied a free appropriate public education (FAPE) by the
District” and allegations that “merely challenge an IEP fail to
state a claim upon which relief can be granted.” (Def.’s Br. at
8.) Moreover, Defendant asserts that Plaintiffs’ claims are
devoid of any merit because the SRO has already determined that
Congemi was not denied access to school education programs and
services. (Def.’s Br. at at 10.)
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Defendant raised these same issues, albeit with less
specificity, in opposition to Plaintiff’s first motion to amend.
(See generally Def.’s Opp. to First Mot. to Amend.) The Court
carefully considered Defendant’s arguments then, even citing to
some of the very same case law to which Defendant cites in its
current brief. (Compare September Order at 6 with Def.’s Br. at
11 (both citing to French v. N.Y. State Dep’t of Educ., No. 10-
CV-4298, 2011 WL 5222856 (2d Cir. Nov. 2, 2011).) Moreover, the
Court specifically rejected Judge Boyle’s R&R on this point,
which had found in favor of the District. Accordingly, and for
the same reasons as asserted in the September Order, Defendant’s
motion in this regard is DENIED.
IV. Statute of Limitations
Finally, Defendant maintains that Plaintiffs’ claims
are barred by the applicable statute of limitations. The Court
disagrees.
As Defendant correctly points out, the timeline of
events and the specific school years at issue are wholly unclear
from the Amended Complaint, and Plaintiffs allegations make few,
if any, references to actual dates. In fact, the only
particular dates mentioned in the Amended Complaint are November
7, 2007 through January 25, 2008, during which time Congemi was
“left home . . . without any home instruction, special education
services/supports, and/or counseling . . . .” (Am. Compl.
14
¶ 83.) According to Defendant, Congemi was placed into the EAC,
which it describes as a “nonpublic school,” in January 2008 and,
as such, Plaintiffs’ allegations presumably pertain primarily,
if not entirely, to events prior to such placement. (Def.’s Br.
at 15-16.)
Plaintiffs’ claims under the RA and the ADA are
subject to a three-year statute of limitations. See Piazza v.
Florida Union Free Sch. Dist., 777 F. Supp. 2d 669, 687
(S.D.N.Y. 2011); Scaggs, 2007 WL 1456221, at *9; BD v. DeBuono,
130 F. Supp. 2d 401, 424 (S.D.N.Y. 2000). “When either of these
claims accrues is determined by federal law, and in the Second
Circuit, a cause of action accrues when the plaintiff knows or
has reason to know of the injury that is the basis of the
action.” BD, 130 F. Supp. 2d at 424 (internal quotation marks
and citation omitted).
Here, at least some of Plaintiffs’ claims pertain to
the 2009-2010 school year and, particularly, Congemi’s
graduation in 2010. In fact, in permitting Plaintiffs to file a
First Amended Complaint, the Court’s analysis of Plaintiffs’ RA
and ADA claims focused on allegations regarding manipulation of
Congemi’s test scores and acceleration of progress to
graduation. (September Order at 6.) Although not abundantly
clear from the Amended Complaint, Plaintiffs apparently allege
that the District continued to develop Congemi’s IEP even after
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he was placed in the EAC.6 Additionally, Congemi graduated with
a diploma from the District. (See Def.’s Br. at 3; Pls.’ Opp.
Br. at 8.) Plaintiffs commenced this action on March 30, 2011,
and therefore their claims regarding the 2009-2010 school year
are clearly within the three year statute of limitations.
Accordingly, Defendant’s motion to dismiss because all of
Plaintiffs’ claims are beyond the statute of limitations is
DENIED.
In response to Defendant’s motion, Plaintiffs also
maintain that they were required to exhaust their claims through
administrative remedies, including their RA and ADA claims, and
given that they did so in a timely fashion, none of their claims
are time-barred. (Pls.’ Opp. Br. at 7.) Plaintiffs apparently
raise the issue of equitable tolling, although they do not say
so explicitly. “Statutes of limitations are generally subject
6 In response to Defendant’s motion, Plaintiffs submit an affidavit from Rekowicz clarifying the extent to which the District was involved after Congemi’s placement with the EAC. (Pls.’ Opp. Br. Ex. C, Rekowicz Aff.) The Court, however, is confined to the allegations made in the Amended Complaint. See Pani v. Empire Blue Cross Blue Shield, 152 F.3d 67, 71 (2d Cir. 1998). In addition, Defendant responds that at least some of these allegations are new and were not previously litigated in the administrative process, thus requiring dismissal because they were not exhausted. (Def.’s Reply Br., Docket Entry 41-1, at 5-6.) Plaintiffs have alleged exhaustion (Am. Compl. ¶¶ 87- 106) and, although Defendant has provided the Court with the SRO’s decision regarding the 2007-2008 and 2008-2009 school years, it is not clear what was raised regarding the 2009-2010 school year. Accordingly, to the extent that Defendant argues that the Amended Complaint raises claims that were not exhausted, its motion is DENIED. 16
to equitable tolling where necessary to prevent unfairness to a
plaintiff who is not at fault for her lateness in filing.”
Gonzalez v. Hasty, 651 F.3d 318, 322 (2d Cir. 2011) (internal
quotation marks and citation omitted). Further, “[e]quitable
tolling is an extraordinary measure that applies only when
plaintiff is prevented from filing despite exercising that level
of diligence which could reasonably be expected in the
circumstances.” Id. (internal quotation marks and citation
omitted) (emphasis omitted). Federal courts look to state
equitable tolling rules unless it would defeat the goals of the
federal statute. Piazza, 777 F. Supp. 2d at 691 (quoting M.D.
Southington Bd. of Educ., 334 F.3d 217, 224 (2d Cir. 2003)).
Defendant does not seem to dispute that Plaintiffs
were required to exhaust their administrative remedies.
Certainly, the IDEA requires exhaustion of administrative
remedies. See Scaggs, 2007 WL 1456221, at *4 (citing 20 U.S.C.
§ 1415(l)). In addition, this exhaustion requirement has been
extended to related claims, such as those under the RA and ADA.
Id. at *4 (“[T]he IDEA statute requires plaintiffs with any
claims related to the education of disabled children, whether
brought under IDEA or another statute (i.e., the ADA), to
exhaust the administrative remedies available under IDEA prior
to initiating a federal lawsuit.” (emphasis in original)).
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Courts have been reluctant to apply equitable tolling,
particularly where tolling would defeat such goals of the IDEA
as “the expeditious resolution of educational programming
disputes.” M.D., 334 F.3d at 224; see also Piazza, 777 F. Supp.
2d at 691-92 (declining to extend equitable tolling to IDEA
claims due to plaintiff’s status as a minor). However, the
Second Circuit has applied the doctrine to instances where the
plaintiff was required to exhaust his administrative remedies.
See Gonzalez, 651 F.3d at 323-24 (holding that equitable tolling
should apply where an inmate was required to exhaust his
administrative remedies under the Prison Litigation Reform Act).
As Plaintiffs have alleged the time period during which they
exhausted their administrative remedies, and have argued--
without opposition--that they were required to do so, “this is
the extraordinary case to which equitable tolling may apply,
especially at the motion to dismiss stage.” Harrison v.
Lutheran Med. Ctr., No. 05-CV-2059, 2010 WL 3924292, at *8
(E.D.N.Y. Mar. 23, 2010), adopted by 2010 WL 4038791 (E.D.N.Y.
Sept. 29, 2010); cf. J.W. ex rel. J.E.W. v. Fresno Unified Sch.
Dist., 570 F. Supp. 2d 1212, 1222-23 (E.D. Cal. 2008) (equitably
tolling time to bring claim under Section 504 of the RA while
the plaintiff exhausted administrative remedies as required by
the IDEA). Accordingly, Defendant’s motion is DENIED.
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CONCLUSION
For the foregoing reasons, Defendant’s motion to
dismiss the Amended Complaint is GRANTED IN PART and DENIED IN
PART. It is GRANTED with respect to Plaintiffs’ IDEA claims for
money damages, and such claims are DISMISSED WITHOUT PREJUDICE.
It is DENIED with respect to Plaintiffs’ RA and ADA claims.
SO ORDERED.
/s/ JOANNA SEYBERT______ Joanna Seybert, U.S.D.J.
Dated: September 10 , 2013 Central Islip, NY
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