UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK --------------------------------------------------------------X MB, and RB, a minor, by his parent, RRB,
Plaintiffs, ORDER -against- 14-CV-4670 (SJF)(GRB)
ISLIP SCHOOL DISTRICT, ISLIP SCHOOL DISTRICT BOARD OF EDUCATION, CHAD FILED WALLERSTEIN, individually and in his official capacity, CLERK TIMOTHY MARTIN, individually and in official capacity, TINA BALLINA, individually and in her official capacity, 6/16/2015 4:23 pm JOE MODICA, individually and in his official capacity, U.S. DISTRICT COURT DONNA CARBONARO, individually and in her official EASTERN DISTRICT OF NEW YORK capacity, BARBARA NELSON, individually and in her LONG ISLAND OFFICE official capacity, JEAN TORRES, individually and in her official capacity, and KRISTINE O’MALLEY, individually and in her official capacity,
Defendants. --------------------------------------------------------------X FEUERSTEIN, J.
Plaintiffs MB and RB, a minor, by his parent, RRB (collectively “plaintiffs”) commenced
this action on August 6, 2014 and filed an amended complaint on August 15, 2014 [Docket Entry
No. 5 (“Amended Complaint” or “Am. Compl.”)] against defendants Islip School District
(“District”), Islip School District Board of Education (“Board”), Chad Wallerstein
(“Wallerstein”), Timothy Martin (“Martin”), Tina Ballina (“Ballina”), Joe Modica (“Modica”),
Donna Carbonaro (“Carbonaro”), Barbara Nelson (“Nelson”), Jean Torres (“Torres”), Kristine
O’Malley (“O’Malley”) (collectively “defendants”) alleging disability discrimination under the
Americans with Disabilities Act, 42 U.S.C. § 12101 (“ADA”) and Section 504 of the
Rehabilitation Act of 1973, 29 U.S.C. § 794 (“Rehabilitation Act”), violation of New York State
Human Rights Law (“NYSHRL”) Exec. Law §290 et seq., violation of plaintiff’s constitutional
right to equal protection under the Fourteenth Amendment of the U.S. Constitution pursuant to
42 U.S.C. § 1983 (“Section 1983”), negligence, negligence per se, and negligent infliction of
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emotional distress. Pending before the Court are defendants’ motion to dismiss the Amended
Complaint pursuant to Rules 12(b)(1) and 12(b)(6) of the Federal Rules of Civil Procedure
[Docket Entry No. 20 (“Motion to Dismiss”)] and plaintiffs’ cross-motion to amend the
Amended Complaint pursuant to Rule 15(a) of the Federal Rules of Civil Procedure. [Docket
Entry No. 25 (“Cross-Motion to Amend”)]. For the reasons set forth below, the Motion to
Dismiss is granted in part and denied in part, and the Cross-Motion to Amend is granted in part
and denied in part.
I. BACKGROUND
A. Factual Background 1
RB is a fifteen (15) year old boy with Klinefelter Syndrome, Obsessive Compulsive
Disorder (“OCD”), anxiety disorder, seizure disorder (epilepsy), tic disorder (Tourette’s
syndrome), developmental delays, mild mental retardation, brain trauma and autism. [Docket
Entry No. 26, Ex. B (“Proposed Second Amended Complaint” or “Proposed SAC”) ¶ 1]. As a
result of these disorders, RB suffers from involuntary movements and comments associated with
his tic disorder, panic attacks, severe anxiety, many characteristics of autism (id. ¶ 18) and
involuntarily performs rituals which require him to “tic-tap,” move, and curse involuntarily. Id.
¶ 30. Plaintiffs allege that over the course RB’s education within the District, he has been the
target of “continuous discrimination, harassment, neglect and bullying by his teachers,
administrators and students.” Id. ¶ 2.
1. 2011-2012 Academic Year
RB was homeschooled from second to sixth grade, but began attending Islip Middle
School in the 2011-2012 academic year in an inclusive/collaborative seventh grade class. Id. ¶
1 The following facts are taken from the Proposed SAC.
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20. On September 14, 2011, RB received his first suspension following an incident where, after
he climbed on bleachers in the gymnasium, his aide grabbed him, pulled him off the bleachers
and across the gymnasium floor in front of general education students, and brought him to the
principal’s office where he received a lunch detention. Id. ¶¶ 21-23. Defendant Wallerstein, the
acting principal, instructed the aide not to allow RB to leave the office until his mother arrived at
the school. Id. ¶ 24. RB was extremely nervous and anxious to be alone in the principal’s office
for several hours with the aide who had mistreated him and attempted to exit the principal’s
office, at which point the aide blocked his exit, causing RB to panic, a result of his anxiety
disorder, and push past his aide to leave the office, for which defendant Wallerstein escalated
RB’s punishment to a two (2) day suspension from school. Id. ¶¶ 25-27. Following RB’s
suspension, his two part-time aides were replaced by Mr. Silver, a full-time aide, which
purportedly exacerbated the symptoms of his disabilities, particularly his OCD and tic disorder,
and caused him to receive multiple lunch detentions throughout the 2011-2012 school year. Id.
¶¶ 30-31. On October 17, 2011, RB was suspended for five (5) days for reaching around his
special education teacher, Jean Torres, to complete his tic taps of Mr. Silver. Id. ¶¶ 32-33.
Plaintiffs allege that instead of proposing a Functional Behavioral Assessment (“FBA”)
or a Behavior Intervention Plan (“BIP”) and instructing RB’s teachers and administrators on how
to deal with his disabilities, the District teachers and administrators routinely punished RB, sent
him out of class, degraded and humiliated in front of his classmates, failed to implement the
agreed upon requirements of his IEP by failing to provide copies of class notes and modified
homework assignments, and in October 2011, pressured RB’s parents to remove him from the
co-teach classroom and place him in a self-contained special education classroom. Id. ¶¶ 34-38.
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Plaintiffs allege that defendant Martin, the principal at the time, forced RB to transition into the
self-contained class and reclassified him as a sixth grader, moving him back one grade. Id. ¶ 38.
In November 2011, RB was moved into a self-contained classroom with fourteen (14)
other students, one of whom, named “L”, began to bully RB on a regular basis because of his
disabilities, particularly his uncontrollable tics. Id. ¶¶ 40-52. RB reported this bullying to his
teacher on multiple occasions but his complaints were routinely ignored and no action was taken
to address the bullying of RB. Id.
2. 2012 Annual IEP Review
A Committee on Special Education (“CSE”) meeting was held on May 31, 2012 for the
annual review of RB’s IEP. Id. ¶ 53. At that meeting, it was determined that a Behavioral
Improvement Plan (“BIP”) would be incorporated into RB’s IEP. Id. ¶¶ 3, 54. Plaintiffs allege
that RB’s IEP specified that his teachers would receive training from a behavioral consultant but
that no training ever took place. Id. ¶ 55. Plaintiffs allege they requested RB receive class notes
and assistive technology for writing, but this agreement was never put into RB’s 2012-2013 IEP.
Id. ¶ 56. Plaintiffs also allege that they requested RB be placed in a co-teach classroom and
protected (id. ¶ 58), but that defendant Martin threatened that RB would not be able to attend
school in the District unless he agreed to placement in self-contained classroom for the 2012-
2013 school year. Id. ¶ 59. Plaintiffs allege this was a retaliatory action for their complaints
regarding the discriminatory treatment of RB. Id. ¶ 59.
3. 2012-2013 Academic Year
During the 2012-2013 academic year, L continued to bully RB, causing RB severe
anxiety and fear of school. Id. ¶¶ 60-68. MB alerted RB’s teacher to this bullying and requested
that the boys be separated, but the teacher continued to pair the boys in class, causing more
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bullying of RB. Id. ¶ 65. RB also reported the bullying to the school psychologist on multiple
occasions but the school psychologist purportedly did not respond and allowed the bullying to
persist. Id. ¶ 66.
In September 2012, Mr. Silver, RB’s full-time aide, was replaced with two part-time
aides. Id. ¶ 69. Plaintiffs allege these aides did not understand RB’s disabilities and learning
needs because despite the requirements of RB’s IEP, no behavioral consulting was provided to
these new part-time aides. Id. RB’s difficulty adjusting to these two new aides made him
depressed and extremely anxious, which exacerbated his tic disorder. Id. ¶ 70. RB was
suspended for two (2) days as a result of an October 9, 2012 incident during which RB followed
one of his new aides across the classroom to complete his tic tapping. Id. ¶¶ 71-73. Plaintiffs
allege that RB’s suspension was a result of his disability and defendants’ failure to implement
the requirements of RB’s IEP. Id. ¶ 73. On March 18, 2013, RB was disciplined with several
days of after school detention for an incident in which he grabbed a teacher’s sweatshirt; an
action that plaintiffs allege stemmed from his anxiety disorder. Id. ¶¶ 74-75. On April 10, 2013,
RB was given a five (5) day suspension and advised that he was not allowed to have any contact
with other students following an incident where “he had an involuntary tic in which he
unintentionally made contact with [a teacher’s] face.” Id. ¶ 76. RB subsequently began to suffer
emotional and physical manifestations of his stress and anxiety about attending school, including
exacerbations of his tic disorder and difficulty eating and sleeping, and was emotionally unable
to return to school for the remainder of the 2012-2013 school year. Id. ¶¶ 77-78.
4. Manifestation Review
On May 7, 2013, at a CSE Meeting for a Manifestation Review, the CSE determined that
RB’s disciplinary infractions were a manifestation of his disabilities which were handled
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incorrectly because the BIP specified in his IEP was never properly implemented, and RB’s
parents and administrators agreed to expunge RB’s disciplinary record from his file and remove
all infractions. Id. ¶¶ 81-83.
5. Home Tutoring and Retaliation
RB was unable to return to school for the remainder of the 2012-2013 school year and
was provided with home tutors. Id. ¶¶ 84-86. Despite scoring eighty-five (85) on his final
Social Studies exam, one hundred (100) on his final Pre-Algebra exam, ninety-seven (97) on his
Science final exam, and sixty-five (65) on his Reading Lab final exam, RB was given a grade of
sixty-five (65) in every class for the fourth quarter of the 2012-2013 school year. Id. ¶¶ 86-87.
RB’s parents complained to the District about RB’s grades but no action was taken to correct
them. Id. ¶ 88. In August 2013, RB’s parents informed the District that RB would not be
returning to school and requested a cross-contract (or school choice) whereby the District would
pay for RB to attend school outside the District. Id. ¶ 89. The District contacted Commack
Union Free School District, East Islip Union Free School District, Bayport-Blue Point School
District, Lindenhurst Union Free School District, Connetquot School District, and Smithtown
Central School District and requested that RB be considered for placement but the request was
denied by each of these districts. Id. ¶¶ 90-91. Plaintiffs allege that despite the agreement at the
Manifestation Review, RB’s disciplinary record was not expunged and each school district
received notification of RB’s disciplinary infractions. Id. ¶ 91. Plaintiffs allege that this was
done “intentionally to spite [RB’s] parents for their complaints of discriminatory practices within
the District” (id. ¶ 92) and was “retaliatory in nature against a disabled student.” Id.
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6. 2013-2014 Academic Year
For the 2013-2014 school year, RB’s parents requested the same home tutors with whom
RB worked in the last quarter of the 2012-2013 school year, however the District sent tutors
from a different agency who were not provided with access to the appropriate curriculum or text
books, “effectively den[ying] RB any real education.” Id. ¶¶ 94-95. Plaintiffs alleged that MB
made numerous complaints and requests that went unheeded by the District in “direct retaliation
against Plaintiff for complaining of discriminatory practices within the District.” Id. ¶ 95. RB
and his family were forced to move to Massapequa, New York to get an appropriate education
for RB. Id. ¶ 96. RB is currently receiving psychological counseling from the Family Service
League and the services of a social worker. Id. ¶ 97.
B. Procedural Background
Plaintiffs initiated this action by filing a complaint on August 6, 2014, which they
amended on August 15, 2014. See Am. Compl. On October 17, 2014, defendants served their
Motion to Dismiss, which plaintiffs opposed and cross-moved to amend the Amended
Complaint. See Cross-Motion to Amend. The Proposed Second Amended Complaint removes
the cause of action under the NYSHRL, adds a claim for retaliation under the ADA and the
Rehabilitation Act, and removes all individual defendants other than Wallerstein and Martin (the
“Individual Defendants”). See Proposed SAC.
Federal Rule of Civil Procedure 15 governs amendments to pleadings and provides, in
pertinent part, “a party may amend its pleading only with the opposing party’s written consent or
the court’s leave. The court should freely give leave when justice so requires.” Fed. R. Civ. P.
15(a)(2). Notwithstanding these liberal standards, the decision to grant or deny a party’s motion
for leave to amend “is within the sound discretion of the district court.”
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Southold, 48 F.3d 674, 685 (2d Cir. 1995) (citing John Hancock Mut. Life Ins. Co. v. Amerford
Int’l Corp., 22 F.3d 458, 462 (2d Cir. 1994)). A court may deny leave to amend in
circumstances of “‘undue delay, bad faith, futility of the amendment, [or]... prejudice.’” Aetna
Cas. & Sur. Co. v. Aniero Concrete Co., Inc., 404 F.3d 566, 603-04 (2d Cir. 2005) (quoting
Richardson Greenshields Secs., Inc. v. Lau, 825 F.2d 647, 653 n.6 (2d Cir.1987)). A proposed
amendment is futile where the claims would not survive a motion to dismiss. Dougherty v. Town
of North Hempstead Bd. of Zoning Appeals, 282 F.3d 83, 88 (2d Cir. 2002).
Because plaintiffs moved to amend the Amended Complaint while defendants’ motion to
dismiss was pending, the Court has “a variety of ways in which it may deal with the pending
motion to dismiss, from denying the motion to dismiss as moot to considering the merits of the
motion in light of the amended complaint.” Schwartzco Enters. LLC v. TMH Mgmt., LLC, No.
14-civ-1082, 2014 WL 6390299, at *1 (E.D.N.Y. Nov. 17, 2014) (internal quotations and
citation omitted). As plaintiffs do not seek to add new defendants, and defendants had sufficient
opportunity to respond to the Proposed SAC, the merits of the motion to dismiss will be
considered in light of the proposed SAC. See Costello v. Town of Huntington, No. 14-civ-2061,
2015 WL 1396448, at *1 (E.D.N.Y. Mar. 25, 2015) (“the Court will consider the merits of
Defendant’s motion [to dismiss] in light of the allegations in the proposed Amended
Complaint”); Schwartzco Enterprises LLC, 2014 WL 6390299, at *2 (“the merits of the Motion
to Dismiss will be considered in light of the proposed amended complaint”).
In opposing plaintiffs’ Cross-Motion to Amend, defendants do not argue that granting
plaintiffs’ motion would prejudice defendants, unduly delay the proceedings, or countenance any
bad faith, but rather argue that the proposed amendment would be futile because the Proposed
SAC is subject to dismissal for the reasons set forth in defendants’ Motion to Dismiss. [Docket
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Entry No. 23 (Reply Memorandum of Law in Further Support of Defendants’ Motion to Dismiss
(“Def. Reply”)), at 1-3]. Therefore, plaintiffs’ Cross-Motion to amend should be granted to the
extent that the proposed amendments are not futile. See Haag v. MVP Health Care, 866
F.Supp.2d 137, 140 (N.D.N.Y. 2012) (“Indeed, if the proposed [SAC] cannot survive the motion
to dismiss, then plaintiffs’ cross-motion to amend will be denied as futile.”) (citing Dougherty,
282 F.3d at 88). “An amendment to a pleading is futile if the proposed claim could not withstand
a motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(6).” Annunziato v. Collecto, Inc., 293 F.R.D.
329, 333 (E.D.N.Y. 2013) (citing Lucente v. Int’l Bus. Machs. Corp., 310 F.3d 243, 258 (2d Cir.
2002)).
II. DISCUSSION
A. Standards of Review
“When a defendant moves to dismiss under Rule 12(b)(1) for lack of subject matter
jurisdiction, and also moves to dismiss on other grounds, such as Rule 12(b)(6) for failure to
state a claim upon which relief can be granted, the Court must consider the Rule 12(b)(1) motion
first.” Bobrowsky v. Yonkers Courthouse, 777 F. Supp. 2d 692, 703 (S.D.N.Y. 2011); see Rhulen
Agency, Inc. v. Alabama Ins. Guar. Ass’n, 896 F.2d 674, 678 (2d Cir. 1990) (“Where, as here,
the defendant moves for dismissal under Rule 12(b)(1), as well as other grounds, the court
should consider the Rule 12(b)(1) challenge first since if it must dismiss the complaint for lack of
subject matter jurisdiction, the accompanying defenses and objections become moot and do not
need to be determined.”) (internal citations omitted). “A case is properly dismissed for lack of
subject matter jurisdiction pursuant to Rule 12(b)(1) when the district court lacks the statutory or
constitutional power to adjudicate it.” Makarova v. United States, 201 F.3d 110, 113 (2d Cir.
2000); see Fed. R. Civ. P. 12(b)(1). “It is axiomatic that federal courts are courts of limited
9
jurisdiction and may not decide cases over which they lack subject matter jurisdiction. Unlike
failure of personal jurisdiction, failure of subject matter jurisdiction is not waivable and may be
raised at any time by a party or by the court sua sponte. If subject matter jurisdiction is lacking,
the action must be dismissed.” Lyndonville Sav. Bank & Trust Co. v. Lussier, 211 F.3d 697, 700-
01 (2d Cir. 2000); see also Henderson ex rel. Henderson v. Shinseki, 562 U.S. 428, 434, 131
S.Ct. 1197, 1202, 179 L.Ed.2d 159 (2011) (“[F]ederal courts have an independent obligation to
ensure that they do not exceed the scope of their jurisdiction, and therefore they must raise and
decide jurisdictional questions that the parties either overlook or elect not to press…Objections
to subject matter jurisdiction…may be raised at any time.”). Accordingly, “before deciding any
case we are required to assure ourselves that the case is properly within our subject matter
jurisdiction.” Wynn v. AC Rochester, 273 F.3d 153, 157 (2d Cir. 2001) (citations omitted). In
resolving a motion to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1), a
district court may refer to evidence outside the pleadings. See Makarova, 201 F.3d at 113. A
plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the
evidence that it exists. Id.
The standard of review on a motion made pursuant to Rule 12(b)(6) of the Federal Rules
of Civil Procedure is that a plaintiff plead sufficient facts “to state a claim to relief that is
plausible on its face.” Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167
L.Ed.2d 929 (2007). A claim has “facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Ashcroft v. Iqbal, 556 U.S. 662, 678, 129 S.Ct. 1937, 173 L.Ed.2d 868
(2009). The pleading of specific facts is not required; rather a complaint need only give the
defendant “fair notice of what the…claim is and the grounds upon which it rests.” Erickson v.
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Pardus, 551 U.S. 89, 93, 127 S.Ct. 2197, 167 L.Ed.2d 1081 (2007) (internal quotation marks and
citation omitted). “A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of
the elements of a cause of action will not do.’” Iqbal, 556 U.S. at 678, 129 S.Ct. 1937, 173
L.Ed.2d 868 (quoting Twombly, 550 U.S. at 555, 127 S.Ct. 1955, 167 L.Ed.2d 929). “Nor does a
complaint suffice if it tenders ‘naked assertion[s]’ devoid of ‘further factual enhancement.’” Id.
(quoting Twombly, 550 U.S. at 557, 127 S.Ct. 1955, 167 L.Ed.2d 929). “Factual allegations
must be enough to raise a right to relief above the speculative level, on the assumption that all
the allegations in the complaint are true (even if doubtful in fact).” Twombly, 550 U.S. at 555,
127 S.Ct. 1955, 167 L.Ed.2d 929 (international citations omitted). The plausibility standard
requires “more than a sheer possibility that a defendant has acted unlawfully.” Iqbal, 556 U.S. at
678, 129 S.Ct. 1937, 173 L.Ed.2d 868. Moreover, in deciding a motion pursuant to Rule
12(b)(6), the Court must liberally construe the claims, accept all factual allegations in the
complaint as true, and draw all reasonable inferences in favor of the plaintiff. See Aegis Ins.
Servs., Inc. v. 7 World Trade Co., L.P., 737 F.3d 166, 176 (2d Cir. 2013); Grullon v. City of New
Haven, 720 F.3d 133, 139 (2d Cir. 2013). However, this tenet “is inapplicable to legal
conclusions,” and “[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, 129 S.Ct. 1937, 173 L.Ed.2d
868; see also Wilson v. Dantas, 746 F.3d 530, 535 (2d Cir. 2014). “While legal conclusions can
provide the framework of a complaint, they must be supported by factual allegations.” Iqbal,
556 U.S. at 679, 129 S.Ct. 1937, 173 L.Ed.2d 868; see also Ruston v. Town Bd. for Town of
Skaneateles, 610 F.3d 55, 59 (2d Cir. 2010) (“A court can choose to begin by identifying
pleadings that, because they are no more than conclusions, are not entitled to the assumption of
truth.”) (quotations and citations omitted).
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B. Federal Law Claims
1. Subject Matter Jurisdiction
Defendants move to dismiss the ADA, Rehabilitation Act, and Section 1983 claims (the
“Federal Law Claims”) pursuant to Rule 12(b)(1) of Federal Rules of Civil Procedure arguing
that plaintiffs’ failure to exhaust the administrative remedies provided for in the Individuals with
Disabilities Education Act (“IDEA”) deprives the Court of subject matter jurisdiction. [Docket
Entry No. 22 (Memorandum of Law in Support of Defendants’ Motion to Dismiss (“Def.
Mem.”)), at 4-8]. Plaintiffs argue that they were not required to exhaust their administrative
remedies under the IDEA [Docket Entry No. 24 (Plaintiffs’ Memorandum in Support of Cross-
Motion to Amend and in Opposition to Defendants’ Motion to Dismiss (“Pl. Opp.”)), at 15-19],
and that even if their claims were subject to the IDEA’s exhaustion requirement, their failure to
exhaust their administrative remedies should be excused under one or more of the futility
exceptions. Pl. Opp., at 10-11.
a. IDEA’s Exhaustion Requirement
“The IDEA’s central mandate is to provide disabled students with a ‘free appropriate
public education’ in the least restrictive environment suitable for their needs.” Cave v. East
Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008); see also Polera v. Bd. of
Educ. of Newburgh Enlarged City Sch. Dist., 288 F.3d 478, 481-82 (2d Cir. 2002) (“The
IDEA…mandates federal grants to states to provide disabled children with ‘a free appropriate
public education’ in the least restrictive appropriate environment.”). “Under the educational
scheme of the IDEA…parents of students with disabling conditions are guaranteed ‘both an
opportunity for meaningful input into all decisions affecting their child’s education and the right
to seek review of any decisions they think inappropriate.’” Cave, 514 F.3d at 245 (quoting
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v. Doe, 484 U.S. 305, 311-12, 108 S.Ct. 592, 98 L.Ed.2d 686 (1988)). “Educators and parents of
a child covered by the IDEA must jointly develop an ‘individualized education program’ (‘IEP’)
for each year of the child’s education.” Polera, 288 F.3d at 482. “The IEP is the central
mechanism by which public schools ensure that their disabled students receive a free appropriate
public education.” Id.
“The IDEA requires that states offer parents of a disabled student an array of procedural
safeguards designed to help ensure the education of their child[.]” Id. (citing 20 U.S.C. §
1415(a)). “If a parent believes that her child’s IEP or the school’s implementation of the IEP
does not comply with the IDEA, the parent may file a ‘due process complaint’ with the
appropriate state agency.” B.M. v. New York City Dep’t of Educ., 569 F. App’x 57, 58 (2d Cir.
June 18, 2014) (citing 20 U.S.C. § 1415(b)(6)); see also Cave, 514 F.3d at 245 (“Parents
are…entitled to request a due process hearing in order to present complaints as ‘to any matter
relating to the identification, evaluation, or educational placement of the child, or the provision
of a free appropriate public education.’”) (quoting 20 U.S.C. § 1415(b)(6)(A)); 20 U.S.C. §
1415(f), (g) and (h) (delineating the procedural safeguards for parties filing a complaint and their
right to seek review through local and state administrative processes). “Districts are then
permitted a thirty-day ‘resolution period’ to address alleged deficiencies without
penalty.” B.M., 569 F. App’x at 58 (citing 20 U.S.C. § 1415(f)(1)(B)). “Once the resolution
period has run, a parent may continue to a due process hearing before an independent hearing
officer (‘IHO’) and appeal the resulting decision to a state review officer (‘SRO’).” Id. (citing 20
U.S.C. § 1415(f), N.Y. Educ. Law § 4404(2)); see also 20 U.S.C. §§ 1415(g).
“Only after exhaustion of th[e] procedures [set forth in Section 1415 of the IDEA] has an
aggrieved party the right to file a suit in a federal or state court.” Cave, 514 F.3d at 245 (citing 20
13
U.S.C. § 1415(i)(2)(A)); see also Coleman v. Newburgh Enlarged City Sch. Dist., 503 F.3d 198,
204-05 (2d Cir. 2007) (“It is well settled that the IDEA requires an aggrieved party to exhaust all
administrative remedies before bringing a civil action in federal or state court...”) (quoting J.S. ex
rel. N.S. v. Attica Cent. Sch., 386 F.3d 107, 112 (2d Cir. 2004)). “Failure to exhaust the
administrative remedies deprives the court of subject matter jurisdiction.” Cave, 514 F.3d at 245
(citing Polera, 288 F.3d at 483). The IDEA’s exhaustion requirement applies “not only when
[litigants] wish to file a suit under the IDEA itself, but also whenever they assert claims for relief
available under the IDEA, regardless of the statutory basis of their complaint.” Cave, 514 F.3d
at 246 (emphasis in original).
b. Application of the IDEA’s Exhaustion Requirement
Plaintiffs’ Federal Law Claims allege violations of the ADA, Section 504 of the
Rehabilitation Act and Section 1983, all of which are subject to the IDEA’s exhaustion
requirement “if the relief sought under those statutes would also be available under the IDEA.
Cave, 514 F.3d at 245 n.2 (“the IDEA’s exhaustion requirement applies equally to relief
available under other statutes, such as the ADA, Section 504, and § 1983, if the relief sought
under those statutes would also be available under the IDEA.”). Plaintiffs argue that they “were
not required to exhaust their administrative remedies because they are not seeking a remedy
available under the IDEA…[r]ather, plaintiffs are seeking a redress of the unlawful
discrimination endured by RB, predicated upon his disability and manifest in the disparate
discipline and treatment he received from Defendants.” Pl. Opp., at 16-17. Plaintiffs allege that
“this is not a case about special education, or challenging the adequacy of services rendered to a
disabled student…[r]ather [the] complaint alleges deliberate indifference to bullying, harassment
and discrimination of [RB] by teachers, administrators, and other students, based on [RB’s]
14
disability” (id. at 17) (emphasis in original), and thus because they allege “discrimination beyond
a mere violation of the IDEA” (id.), the IDEA’s exhaustion requirement is not applicable.
However, while plaintiffs allege that their claims “do not concern the adequacy of [RB’s]
educational services, but rather the discipline he was subjected to because of his disability” (id.
at 19), the Proposed SAC alleges that unequal treatment and disparate discipline to which RB
was subjected based upon his disability impacted his educational services because he was
“denied…the opportunity to benefit from the Defendant District and Board’s educational
services” (Proposed SAC ¶ 101) and that the “disparate discipline became so pervasive that it
detracted from RB’s educational experience that he had to be homeschooled, and eventually
relocated to another school district effectively denying him equal access to the District’s
resources and opportunities.” Id. ¶ 102. As the Second Circuit has noted, “‘education, as used
within the IDEA, encompasses more than simply academics.’” Stropkay v. Garden City Union
Free Sch. Dist., 593 F. App’x 37, 40 (2d Cir. 2014) (quoting Cave, 514 F.3d at 248). Because
plaintiffs’ “claims constitute ‘grievances related to the education of disabled children,’ they are
subject to the IDEA’s exhaustion requirements.” Stropkay, 593 F. App’x at 40 (quoting Polera,
288 F.3d at 481). Like the discrimination claims, plaintiff’s retaliation and Section 1983 claims
also relate to the interplay between RB’s disability and the educational services provided to him
and/or his treatment by teachers and school administrators. 2 Because plaintiffs’ Federal Law
Claims “all relate to the identification, evaluation, or educational placement of [RB], or his
treatment by his teacher because of his disability...these claims all invoke [RB’s] right to a free
2 See Proposed SAC ¶ 107 (alleging that defendants retaliated against plaintiffs “by failing to expunge [RB’s] disciplinary record as agreed upon, artificially lowering his grades, failing to provide tutors with a curriculum or instruction, sending entire record with the disciplinary actions and low grades to other schools”); Pl. Opp. at 19 (“Plaintiffs allege constitutional violations of RB’s right to Equal Protection stemming from the inappropriate discipline and deliberate indifference to instances of bullying”).
15
appropriate public education…[and] are squarely within the ambit of the IDEA.” Baldessarre v.
Monroe-Woodbury Cent. Sch. Dist., 820 F. Supp. 2d 490 (S.D.N.Y. 2011), aff’d sub nom.
Baldessarre ex rel. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 496 F. App’x 131 (2d Cir.
2012); see also Gardner v. Uniondale Pub. Sch. Dist., No. 08-civ-847, 2008 WL 4682442, at *9
(E.D.N.Y. Oct. 21, 2008) (“plaintiffs must comport with the requirements of IDEA, which is
intended to remedy precisely the type of claim presented here – namely, that local school
authorities failed to adequately provide a disabled student with appropriate educational services
and educational environment. As the gravamen of plaintiffs’ action here relates to the
deprivation of free and appropriate educational services, which is clearly within the ambit of the
IDEA, their request for damages pursuant to other federal statutes and state tort law does not
allow them to evade the statute’s exhaustion requirement.”) (internal citation omitted).
Accordingly, absent an applicable exception, plaintiffs were required to exhaust their
administrative remedies under the IDEA prior to filing this action.
c. Exceptions to the IDEA’s Exhaustion Requirement
“The exhaustion requirement is excused when exhaustion would be futile because the
administrative procedures do not provide an adequate remedy.” Cave, 514 F.3d at 249. “To
show futility, a plaintiff must demonstrate that ‘adequate remedies are not reasonably available’
or that ‘the wrongs alleged could not or would not have been corrected by resort to the
administrative hearing process.’” Coleman, 503 F.3d at 205 (quoting J.G. v. Bd. of Educ. of
Rochester City Sch. Dist., 830 F.2d 444, 447 (2d Cir. 1987), Heldman v. Sobol, 962 F.2d 148,
158 (2d Cir. 1992)). The Second Circuit has “accepted arguments of futility where parents were
not informed of administrative remedies…where the state agency was itself acting contrary to
law…where the case involves systemic violations that could not be remedied by local or state
16
administrative agencies…an emergency situation exists (e.g., the failure to take immediate action
will adversely affect a child’s mental or physical health)” (Baldessarre ex rel. Baldessarre, 496
F. App’x at 134 (quotations and citations omitted)) or “where the complaint alleges that the
defendant school district “had failed to implement the clearly-stated requirements of the IEPs.”
Stropkay, 593 F. App’x at 41 (quoting Polera, 288 F.3d at 488). In addition, “if plaintiffs can
demonstrate that there is no relief available to them through the administrative process, they may
avail themselves of the futility…exception[ ] to the exhaustion requirement…” Taylor v.
Vermont Dep’t of Educ., 313 F.3d 768, 790 (2d. Cir. 2002).
Plaintiffs concede that they “did not exhaust the administrative review process required
by the IDEA with regards to disproportionate and discriminatory discipline” (Pl. Opp., at 10) but
argue that their failure to exhaust “should be excused under the futility exceptions” because: (1)
defendants failed to implement the requirements of RB’s IEP, specifically by failing to put into
place a Behavioral Intervention Plan or behavioral consulting as required by RB’s IEP (id. at 10-
11); (2) “the administrative process would not have corrected the alleged wrongs” because RB
was emotionally damaged and “no administrative process could have repaired [this] emotional
damage” (Pl. Opp., at 11); and (3) defendants “failed to inform Plaintiff of the administrative
process” and thus “[RB] and his family were never informed of their rights, or informed of the
administrative process.” Pl. Opp. at 11.
The Court need not address each potential futility exception because, as noted supra, the
exhaustion requirement “will be excused where…the parents have not been notified that
[administrative remedies] were available to them.” Weixel v. Bd. of Educ. of City of New York,
287 F.3d 138, 149 (2d Cir. 2002). Based upon the allegations in the Proposed SAC, which are
accepted as true for purposes of this motion, administrative remedies were not available to
17
plaintiffs because they were “never informed of their due process rights or procedure for which
to challenge the IEP” (Proposed SAC ¶ 56) and therefore “could not be required to exhaust their
administrative remedies.” Id. ¶ 57; see also Conway v. Bd. of Educ. of Northport-E. Northport
Sch. Dist., No. 13-civ-5283, 2014 WL 3828383, at *13 (E.D.N.Y. Aug. 1, 2014) (“[b]ased upon
the allegations in the complaint, which are accepted as true for purposes of this motion,
administrative remedies were not available to plaintiff because defendants did not inform her
about the procedural safeguards of the IDEA at any time during the 2012–2013 academic year, in
violation of Section 1415 of the IDEA”); Keitt v. New York City, 882 F. Supp. 2d 412, 435-36
(S.D.N.Y. 2011) (“accepting as true, at this stage of the litigation, [plaintiff’s] allegations that
Defendants failed to provide notice of the procedural safeguards available under the IDEA,
[plaintiff] has satisfied his burden of demonstrating that the futility exception to the exhaustion
requirement applies.”); Mason By & Through Mason v. Schenectady City Sch. Dist., 879 F.
Supp. 215, 218-19 (N.D.N.Y. 1993) (declining to dismiss action on exhaustion grounds where
plaintiff claimed “that the School District persistently failed to inform her (and other parents) of
the procedural protections as the IDEA requires”) (internal citations and quotations omitted). 3
3 At the Court’s direction, defendants submitted documentation allegedly establishing they provided plaintiffs with notice of their due process procedural safeguard rights pursuant to the IDEA. [Docket No. 30, at 1]. The letter submitted by defendants refers to the District’s policy to provide a copy of a “Procedural Safeguards Notice” at a student’s “initial referral to a CSE and also with other communications to a parent” and contends that “[t]he plaintiffs, therefore, received the Notice at each of those times.” Id. Defendants also submitted letters sent to plaintiffs noting the Procedural Safeguards Notice previously sent and noting that plaintiffs could request an additional copy [Docket Entry No. 30, Ex. 2], and one letter from March 25, 2011 stating that “a copy of the Procedural Safeguards Notice” was enclosed, however the exhibit does not attach a copy of the 2011 Procedural Safeguards Notice. Id. Even assuming plaintiffs received a copy of the 2011 Procedural Safeguards Notice sent on March 25, 2011, and assuming the 2011 Procedural Safeguards Notice complied with statutory requirements of the IDEA, “[a] copy of the procedural safeguards available to the parents of a child with a disability shall be given to the parents…1 time a year…[and] also…upon initial referral or parental request for evaluation; upon the first occurrence of the filing of a complaint under subsection (b)(6); and upon request by a parent.” 20 U.S.C. § 1415(d). The documentation submitted by defendants does not demonstrate that defendants complied with the IDEA by providing plaintiffs a copy of the procedural safeguards available to them each academic year. See Conway, 2014 WL 3828383, at *13 (“administrative remedies were not
18
Therefore, the branch of defendants’ Motion to Dismiss seeking dismissal pursuant to
Rule 12(b)(1) of the Federal Rules of Civil Procedure for plaintiffs’ failure to exhaust their
administrative remedies is denied based on the allegations in the Proposed SAC that plaintiffs
were never informed of the administrative remedies available to them.
2. Individual Liability under the ADA and the Rehabilitation Act
Defendants have moved to dismiss the ADA and Rehabilitation Act claims asserted
against the individual defendants because “there is no individual liability under the ADA or the
Rehabilitation Act.” Def. Mem., at 8 n.1. Because “[n]either the ADA nor the Rehabilitation
Act provides for individual liability premised on claims for monetary damage” (Kane v. Carmel
Cent. Sch. Dist., No. 12-civ-5429, 2014 WL 7389438, at *10 (S.D.N.Y. Dec. 15, 2014)), and
because plaintiffs seek only monetary damages, the ADA and Rehabilitation Act claims against
the individual defendants must be dismissed. See Castro v. City of New York, 24 F. Supp. 3d
250, 259 (E.D.N.Y. 2014) (dismissing ADA and Rehabilitation Act claims against individual
defendants because neither statute provides for individual liability for claims for monetary
damages); Cohn v. KeySpan Corp., 713 F. Supp. 2d 143, 154-55 (E.D.N.Y. 2010) (same).
3. Equal Protection Claim
Plaintiffs and defendants agree that plaintiffs’ Equal Protection claim asserts a “class-of-
one” claim. Def. Mem., at 9-12; Pl. Opp., at 20-22. In a “class of one” equal protection claim,
“the plaintiff uses the existence of persons in similar circumstances who received more favorable
treatment than the plaintiff...to provide an inference that the plaintiff was intentionally singled
out for reasons that so lack any reasonable nexus with a legitimate governmental policy that an
improper purpose–whether personal or otherwise–is all but certain.” Prestopnik v. Whelan, 249
available to plaintiff because defendants did not inform her about the procedural safeguards of the IDEA at any time during the 2012–2013 academic year, in violation of Section 1415 of the IDEA”).
19
F. App’x 210, 212-13 (2d Cir. 2007) (internal citations and quotations omitted). To prevail on a
“class of one” claim, plaintiff must demonstrate that “‘she has been intentionally treated
differently from others similarly situated and that there is no rational basis for the difference in
treatment.’” Pappas v. Town of Enfield, No. 14-2134, 2015 WL 2146140, at *1 (2d Cir. May 8,
2015) (quoting Analytical Diagnostic Labs, Inc. v. Kusel, 626 F.3d 135, 140 (2d Cir. 2010)). “A
successful claim requires ‘an extremely high degree of similarity between [the plaintiff] and
[her] comparators.’” Id. (citing Fortress Bible Church v. Feiner, 694 F.3d 208, 222 (2d Cir.
2012)). “Indeed, the plaintiff must point to at least one other individual whose circumstances,
aside from being treated more favorably than plaintiff, are ‘prima facie identical’ in all other
respects.” Rinaldi v. City of New York, No. 13-civ-4881, 2014 WL 2579931, at *11 (S.D.N.Y.
June 10, 2014), report and recommendation adopted, No. 13-civ-4881, 2014 WL 4626076
(S.D.N.Y. Sept. 15, 2014) (citing Neilson v. D’Angelis, 409 F.3d 100, 104 (2d Cir. 2005)). A
plaintiff must establish that:
(i) no rational person could regard the circumstances of the plaintiff to differ from those of a comparator to a degree that would justify the differential treatment on the basis of a legitimate government policy; and (ii) the similarity in circumstances and difference in treatment are sufficient to exclude the possibility that the defendants acted on the basis of a mistake.
Pappas, 2015 WL 2146140, at *1 (citation omitted).
The Proposed SAC alleges that RB was subjected to “unfair and discriminatory
disciplinary actions” (Proposed SAC ¶ 4) and was “disciplined for the manifestations of his
disabilities which are beyond his control.” Id. ¶ 3. Plaintiffs allege that a student named “L”
was “similarly situated” to RB and that no disciplinary action was taken against L “for incidents
of physical and verbal abuse.” Id. ¶ 42. However, other than stating that “L” is “similarly
situated” to RB and that the two students were in the same self-contained classroom, plaintiffs
20
have not pleaded any facts demonstrating a high degree of similarity between L and RB, or any
facts suggesting how L engaged in similar misconduct as RB but was not punished for such
behavior. While plaintiffs allege that defendants treated RB differently from L because L “was
involved in issues resulting in the sole discipline of RB” (Pl. Opp. at 22), the allegations in the
Proposed SAC describe incidents between L and RB for which neither student was disciplined.
See Proposed SAC ¶¶ 42-52, 61-64. At most, the Proposed SAC alleges that RB was
“disciplined for the manifestations of his disabilities which are beyond his control” (id. ¶ 3)
which resulted in incidents between RB and teachers, aides or school administrators (Proposed
SAC ¶¶ 21-27; 30-33, 71-76), while L was not punished when he intentionally bullied RB. Id.
¶¶ 40-52, 60-64. Plaintiffs’ conclusory statement that L is a similarly situated to RB, without
any supporting facts to suggest an extremely high degree of similarity between L and RB is
insufficient to establish that “no rational person could regard [RB’s] circumstances…to differ
from those of [L] to a degree that would justify the differential treatment.” Pappas, 2015 WL
2146140, at *2 (citation omitted); see also Ruston, 610 F.3d at 60 (affirming district court’s
ruling that complaint failed to state a “class of one” equal protection claim where plaintiffs failed
to show that the alleged similarly-situated properties were “so similar that no rational person
could see them as different”); Marino v. City Univ. of New York, 18 F. Supp. 3d 320, 341
(E.D.N.Y. 2014) (finding plaintiff failed to state a claim for violation of the Equal Protection
Clause because plaintiff had “not adequately alleged the extremely high degree of similarity
between herself and her fellow students to survive a motion to dismiss”); Camac v. Long Beach
City Sch. Dist., No. 09-civ-5309, 2011 WL 3030345, at *16 (E.D.N.Y. July 22, 2011) (granting
motion to dismiss equal protection claim where “[a]side from assigning these unnamed students
the title of ‘similarly situated,’ the Complaint contain[ed] no other allegations showing how
21
another person’s circumstances…were prima facie identical to [plaintiff’s]”) (citations and
quotations omitted).
Therefore, the branch of defendants’ Motion to Dismiss seeking dismissal of plaintiffs’
Equal Protection Claim for failure to state a claim is granted.
4. Monell Claim
To hold a municipality liable under Section 1983, a plaintiff “must show that the
violation of constitutional rights resulted from a municipal custom or policy.” Ricciuti v. New
York City Transit Auth., 941 F.2d 119, 122 (2d Cir. 1991); see also Monell v. Dep’t of Soc.
Servs., 436 U.S. 658, 694, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978). “Monell does not provide a
separate cause of action for the failure by the government to train its employees; it extends
liability to a municipal organization where that organization’s failure to train, or the policies or
customs that it has sanctioned, led to an independent constitutional violation.” Segal v. City of
New York, 459 F.3d 207, 219 (2d Cir. 2006) (emphasis in original; citations omitted). “[T]o state
a claim for municipal liability pursuant to § 1983, a plaintiff must plead facts supporting (1) the
existence of a constitutional violation, and (2) a policy or custom giving rise to that violation that
the municipality has actively enforced or knowingly ignored.” Peterec v. City of New York, No.
14-civ-309, 2015 WL 1027367, at *6 (S.D.N.Y. Mar. 6, 2015). “In order to state a viable Monell
claim, however, plaintiff must establish some constitutional violation.” Mitchell v. Cnty. of
Nassau, 786 F. Supp. 2d 545, 563 (E.D.N.Y. 2011); see also Claudio v. Sawyer, 675 F.Supp.2d
403, 408 (S.D.N.Y. 2009) (“Under Second Circuit case law, a prerequisite to municipal liability
under Monell is an underlying constitutional violation by a state actor.”).
Based upon the foregoing, plaintiffs have failed to adequately establish an underlying
constitutional violation and their Monell claim fails as well. See Eskenazi-McGibney v.
22
Connetquot Cent. Sch. Dist., No. 14-civ-1591, 2015 WL 500871, at *14 (E.D.N.Y. Feb. 6, 2015)
(“Having concluded that [plaintiff] does not state an equal protection cause of action under
Section 1983, the Court need not address whether the District may be liable for any such claim
under Monell”); Lener v. Hempstead Pub. Sch., 55 F. Supp. 3d 267 n.14 (E.D.N.Y. 2014)
(“when a plaintiff lacks any underlying claim of a deprivation of a constitutional right, the claim
of municipal liability on the part of the municipal defendant must be dismissed as well”);
McCluskey v. Town of Southampton, No. 12-civ-2394, 2013 WL 4049525, at *10 (E.D.N.Y.
Aug. 9, 2013), appeal dismissed (Oct. 8, 2013) (“having found that plaintiff has failed to
adequately plead a predicate violation of his constitutional rights…any claim for municipal
liability necessarily fails as well”).
C. Doctrine of Primary Jurisdiction
Defendants argue that the doctrine of primary jurisdiction precludes plaintiffs’ claims
because “the review of discretionary determinations to impose discipline is, as a general rule,
committed to the Commissioner of Education by reason of the Commissioner’s specialized
expertise” (Def. Mem., at 14), that “New York State Education Law § 310 “confers broad
appellate jurisdiction on the Commissioner of Education to entertain and resolve disputes arising
within the context of the public education system” (id. at 15) and that the Commissioner of
Education “should be afforded the opportunity to resolve issues such as these, as they relate both
to the disciplinary consequences imposed for student harassment and the broad policies and
procedures of the District.” Id.
The discretionary doctrine of primary jurisdiction “potentially applies when federal
courts have original jurisdiction to hear the claim and the claim requires the resolution of issues
placed within the special competence of an administrative body” and “is used to fix forum
23
priority when the courts and an administrative agency have concurrent jurisdiction over an
issue.” Mrs. W. v. Tirozzi, 832 F.2d 748, 758-59 (2d Cir. 1987) (internal citations omitted)).
Although “[n]o fixed formula exists for applying the doctrine of primary jurisdiction” (United
States v. W. Pac. R.R. Co., 352 U.S. 59, 64, 77 S.Ct. 161, 1 L.Ed.2d 126 (1956)), courts in the
Second Circuit generally consider four factors:
(1) whether the question at issue is within the conventional experience of judges or whether it involves technical or policy considerations within the agency’s particular field of expertise; (2) whether the question at issue is particularly within the agency’s discretion; (3) whether there exists a substantial danger of inconsistent rulings; and (4) whether a prior application to the agency has been made.
Schiller v. Tower Semiconductor Ltd., 449 F.3d 286, 295 (2d Cir. 2006). “[C]ourts seldom defer
to an administrative agency when the issue involved is purely a legal question not involving
either administrative experience or expertise.” Tirozzi, 832 F.2d at 759. New York courts have
held that “[t]he general rule is that an appeal to the commissioner is the exclusive remedy where
the issue involves the professional judgment and discretion of those responsible for the
administration of public schools” however, “[w]here [ ] a statutory or constitutional provision is
the basis of the dispute or where discrete issues of law are present which do not involve matters
of policy, review...by the courts is proper.” Walker v. Board of Education, 78 A.D.2d 982, 982
433 N.Y.S.2d 660 (App. Div. 4th Dept. 1980) (citations and quotations omitted); see also H. v.
New York Medical College, 88 A.D.2d 296, 299, 453 N.Y.S.2d 196 (App. Div. 2d Dept. 1982)
(“We recognize that in cases where the issue involves the professional judgment and discretion
of educators and a statutory or constitutional provision is not the basis of the dispute and
discrete issues of law are not present, direct review by the courts of the academic policy
decisions of educators and educational institutions will not be proper”) (emphasis added).
24
Here, resolution of plaintiffs’ remaining Federal Law Claims for violations of the ADA
and the Rehabilitation Act depend upon the interpretation of those statutes, and thus do not
involve “technical or policy considerations within the Commissioner’s particular field of
expertise but rather [are] within the conventional wisdom of this Court.” G.D.S. ex rel. Slade v.
Northport-E. Northport Union Free Sch. Dist., 915 F. Supp. 2d 268, 276 (E.D.N.Y. 2012); see
also Rackmyer v. Gates–Chili Cent. School Dist., 48 A.D.2d 180, 183, 368 N.Y.S.2d 636 (App.
Div. 4th Dept. 1975) (“[W]here rights depend upon the interpretation of a statute which it is
claimed the school board or an official has violated, the courts will determine the matter
notwithstanding that another procedure for settling the controversy is available.”). Further,
plaintiffs seek compensatory and punitive damages for the alleged violations, a type of relief that
cannot be granted by the Commissioner of Education. See G.D.S., 915 F. Supp. 2d at 276 (“the
Commissioner of Education would be unable to provide the Plaintiff redress…because the
Plaintiff seeks injunctive relief, compensatory damages and punitive damages.”). Therefore, the
doctrine of primary jurisdiction does not bar adjudication of plaintiffs’ Federal Law claims and
defendants’ Motion to Dismiss on this ground is denied.
D. State Law Claims
Plaintiffs’ fourth, fifth and sixth claims all assert state law negligence claims
(collectively, the “State Law Claims”). Plaintiffs’ fourth cause of action alleges negligence and
negligent supervision and training (Proposed SAC ¶¶ 113-18), plaintiffs’ fifth cause of action
sounds in negligence per se (id. ¶¶ 119-28), and plaintiffs’ sixth cause of action is for negligent
infliction of emotional distress. Id. ¶¶ 129-36.
25
1. Failure to Name Individual Defendants in Notice of Claim
Defendants moved to dismiss the state law claims against the Individual Defendants
based upon, inter alia, plaintiffs’ “fail[ure] to name any of the individual Respondents” in the
Notice of Claim, arguing that “[i]t is well settled within New York state courts and federal courts
in the Second Circuit that [New York General Municipal Law § 50–e] requires a plaintiff to
name each defendant in the Notice of Claim in order to maintain a cause of action against that
defendant.” Def. Mem., at 18-20. 4 Plaintiffs’ notice of claim names only the District and the
Board, and not the Individual Defendants, as respondents. [Docket Entry No. 21, Ex. B]. In
their opposition, plaintiffs do not respond to this argument for dismissal of the State Law Claims
asserted against the Individual Defendants and therefore, the Court deems the State Law Claims
against the Individual Defendants to be abandoned. See Gorfinkel v. Ralf Vayntrub, Invar
Consulting Ltd., No. 11-civ-5802, 2014 WL 4175914, at *4 (E.D.N.Y. Aug. 20, 2014)
(dismissing claims against two defendants because “[p]laintiff…waived any opposition with
4 In light of plaintiffs’ abandonment of these claims, the Court need not decide which intermediate appellate New York state court to follow on how rigidly to apply General Municipal Law section 50-e. See Bailey v. City of New York, No. 14-civ-2091, 2015 WL 220940, at *21 (E.D.N.Y. Jan. 15, 2015) (noting that “[t]he New York Court of Appeals has yet to resolve a split among the intermediate appellate courts on how rigidly to apply the dictates of General Municipal Law section 50-e. The Fourth Department has held that a plaintiff need not name each individual defendant in a notice of claim. Goodwin v. Pretorius, 105 A.D.3d 207, 962 N.Y.S.2d 539, 545 (App.Div. [4th Dep’t] 2013) (“[C]ourts have misapplied or misunderstood the law in creating, by judicial fiat, a requirement for notices of claim that goes beyond those requirements set forth in the statute. If the legislature had intended that there be a requirement that the individual employees be named in the notices of claim, it could easily have created such a requirement.”). The First Department disagrees.” Cleghorne v. City of N.Y., 99 A.D.3d 443, 952 N.Y.S.2d 114, 117 (App.Div. [1st Dep’t] 2012) (“[T]he action cannot proceed against the individual defendants because they were not named in the notice of claim.”)”). Defendants’ argument for dismissal based on the failure to name the Individual Defendants in the notice of claim is plausible in light of the line of cases following the First Department’s reasoning. See Schafer v. Hicksville Union Free Sch. Dist., No. 06-civ-2531, 2011 WL 1322903, at *11 (E.D.N.Y. Mar. 31, 2011) (dismissing claims against defendants not named in Notice of Claim); Ruzza v. Vill. of Mamaroneck, N.Y., No. 14-civ-1776, 2014 WL 6670101, at *3 (S.D.N.Y. Oct. 6, 2014) (dismissing claim against individual defendant mentioned in narrative but not identified as a respondent in Notice of Claim).
26
respect to [defendants’] argument [for dismissal] by failing to oppose the…motion [to dismiss]
on that basis”); Tamir v. Bank of N.Y. Mellon, No. 12-civ-4780, 2013 WL 4522926, at *2
(E.D.N.Y. Aug. 27, 2013) (“Plaintiff has failed to provide any response to Defendants’ plausible
arguments, and, therefore, the Court deems the…claim abandoned.”); Thomas v. N.Y.C. Dep’t of
Educ., No. 10-civ-464, 2013 WL 1346258, at *17 (E.D.N.Y. Mar. 29, 2013) (“A court may, and
generally will, deem a claim abandoned when a plaintiff fails to respond to a defendant’s
arguments that the claim should be dismissed.”) (internal quotation marks omitted).
2. Infant-Plaintiff’s Failure to Appear for 50-h Examination
Defendants argue that the State Law Claims against the District and Board should be
dismissed based upon the infant-plaintiff’s failure to comply with defendants’ demand for an oral
examination pursuant to New York Education Law § 3813 and New York General Municipal
Law § 50-h. Def. Mem., at 20-22. Plaintiffs agree with defendants that generally “[f]ailure to
comply with the demand for an examination precludes a plaintiff from asserting claims subject to
the notice of claim requirement” (Pl. Opp., at 29), but argue that plaintiff-infant’s “severe
disabilities” excused his failure to appear at the 50-h examination. Id. at 29-30.
“Compliance with a demand for a General Municipal Law § 50–h examination is a
condition precedent to the commencement of an action against a municipal defendant, and the
failure to so comply warrants dismissal of the action.” Hymowitz v. City of New York, 122
A.D.3d 681, 682, 996 N.Y.S.2d 337, 338-39 (App. Div. 2d Dept. 2014); see also McDaniel v.
City of Buffalo, 291 A.D.2d 826, 826, 737 N.Y.S.2d 904 (App. Div. 4th Dept. 2002) (“[i]t is well
settled that a plaintiff who has not complied with General Municipal Law § 50–h (1) is precluded
from maintaining an action against a municipality”); N.Y. Gen. Mun. Law § 50–h(5) (“Where a
demand for examination has been served…no action shall be commenced against the…school
27
district against which the claim is made unless the claimant has duly complied with such demand
for examination”). “The failure to submit to such an examination, however, may be excused in
exceptional circumstances, such as extreme physical or psychological incapacity.” Steenbuck v.
Sklarow, 63 A.D.3d 823, 824, 880 N.Y.S.2d 359, 360 (App. Div. 2d Dept. 2009). “Only where a
claimant’s extreme incapacity has been shown have courts made exceptions to the General
Municipal Law’s examination provisions.” Alford v. City of New York, 115 A.D.2d 420, 421-22,
496 N.Y.S.2d 224 (App. Div. 1st Dept. 1985), aff’d in part, appeal dismissed in part, 67 N.Y.2d
1019, 494 N.E.2d 455 (1986) (citations omitted).
Here, plaintiffs have not demonstrated “extreme physical or psychological incapacity”
sufficient to excuse RB’s failure to appear at the 50-h hearing. Plaintiffs allege that RB “suffers
from multiple disabilities that impair his cognitive functions, as well as his expressive and
receptive language skills” including “Klinefelter Syndrome, mild mental retardation,
developmental delays, brain trauma and autism…and severe anxiety disorder” (Pl. Opp., at 29-
30) and compare RB to “the psychologically impaired plaintiff in Hur [v. City of
Poughkeepsie].” Id. at 29. However, in Hur, the Court did not find that plaintiff was excused
from submitting to a 50-h hearing, but held that there was “sufficient question whether the
injuries suffered by plaintiff…rendered her incapable, psychologically or otherwise, of
submitting to an oral examination…so as to require a hearing at Special Term.” Hur v. City of
Poughkeepsie, 71 A.D.2d 1014, 1015, 420 N.Y.S.2d 414, 415 (App. Div. 2d Dept. 1979).
Moreover, in Hur, the plaintiff’s injuries, which included a spinal cord injury that rendered her a
complete quadriplegic, and, according to her physician’s affidavit, almost entirely
“diaphragmatic” breathing and a “from a psychological point of view the most paralyzing sort of
vulnerability” (id. at 1014-15) were, like other cases where a plaintiff’s failure to appear at a 50-
28
h hearing has been excused, more extreme than the impairments alleged here. 5 The “unilateral
and subjective assessment of plaintiffs and their attorneys” that RB was would not be able to
meaningfully participate in a 50-h examination does not demonstrate “extreme incapacity” on the
part of RB to excuse compliance with General Municipal Law 50-h. Lara ex rel. Lara v. City of
New York, 187 Misc. 2d 882, 892, 726 N.Y.S.2d 217, 224-25 (Sup. Ct. N.Y. Cnty. 2001) (City
entitled to summary judgment where infant-plaintiff was not produced for 50-h examination “due
to concerns about how an examination would affect her mental health”); Brian VV v. Chenango
Forks Cent. Sch. Dist., 299 A.D.2d 803, 804, 751 N.Y.S.2d 59 (App. Div. 3d Dept. 2002) (no
exceptional circumstances, such as extreme physical or psychological incapacity present to
excuse six-year-old petitioner’s failure to submit to a 50-h examination where plaintiffs offered
“only the lay opinion of a victim assistance worker that an examination would be likely to
exacerbate the child’s anxiety”).
Therefore, plaintiffs’ State Law Claims against the District and Board are dismissed
based on plaintiff RB’s failure to appear for a 50-h examination. See G.D.S., 915 F. Supp. 2d at
281 (“Plaintiff’s failure to appear for a 50-h examination is fatal to his second cause of action”).
5 See also Hymowitz, 122 A.D.3d at 682 (“the failure to appear for an examination pursuant to General Municipal Law § 50–h should have been excused in light of the decedent’s death before service of the demand for her examination, the administrator’s willingness to appear at a hearing, and the defendants’ failure to demand the examination of any other person”); Legal Servs. Elderly, Disabled, or Disadvantaged of W. New York, Inc. v. Cnty. of Erie, 125 A.D.3d 1321, 1321-22, 3 N.Y.S.3d 497, 498 (App. Div. 4th Dept. 2015) (plaintiff’s failure to appear for the 50-h examination excused because plaintiff “sustained a severe brain injury and [was] permanently incapacitated” and his “former power of attorney was unable to appear at the hearing or reschedule the hearing for a later date because he was hospitalized with various ailments”); Steenbuck, 63 A.D.3d at 823-24 (failure of plaintiff, who had “sustained traumatic brain injury…was hospitalized…[had] speech, memory, and cognitive deficits, [could not] hold an intelligent conversation, and ha[d] no recall of the accident,” to appear at the 50-h hearing did not warrant dismissal of the complaint); Twitty v. City of New York, 195 A.D.2d 354, 355, 600 N.Y.S.2d 66, 67 (App. Div. 1st Dept 1993) (counsel’s representation that plaintiff suffered from quadriplegia and was unable to attend the 50-h hearing were not fraudulent representations warranting dismissal of the complaint because the representations concerning plaintiff, who was confined to her home and bed, had no practical use of her legs and arms, and was in general failing health, were substantially accurate).
29
III. CONCLUSION
For the foregoing reasons, plaintiffs’ Cross-Motion to Amend is granted in part and
denied in part and defendants’ Motion to Dismiss, deemed as directed at the Proposed SAC, is
granted in part and denied in part. Defendants’ Motion to Dismiss is denied as to plaintiffs’
ADA and Rehabilitation Act claims against the District and the Board; granted as to plaintiffs’
ADA and Rehabilitation Act claims against the Individual Defendants; granted as to plaintiffs’
Equal Protection Claim against all defendants; and granted as to plaintiffs’ State Law Claims
against all defendants. Plaintiffs’ Cross-Motion to Amend is granted insofar as plaintiffs’ ADA
and Rehabilitation Act claims against the District and the Board for disability discrimination and
retaliation remain pending in this action.
SO ORDERED.
s/ Sandra J. Feuerstein Sandra J. Feuerstein United States District Judge
Dated: June 16, 2015 Central Islip, New York
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