Fanni Goldman v. Brooklyn Center For Psychotherapy, Inc.
ORDER denying 58 Motion for Reconsideration: Because Defendant has not satisfied the strict standards of Local Civil Rule 6.3 and Federal Rule of Civil Procedure 59(e), its motion for reconsideration is denied. Ordered by Judge Pamela K. Chen on 4/11/2018. (Rediker, Ezekiel)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
MEMORANDUM & ORDER
15-CV-2572 (PKC) (PK)
- against BROOKLYN CENTER FOR
PAMELA K. CHEN, United States District Judge:
Defendant Brooklyn Center for Psychotherapy, Inc. (“BCP”) filed this action on March 22,
2018 (Dkt. 58), seeking reconsideration of the Court’s March 19, 2018 Order denying BCP’s
motion for summary judgment (see Dkt. 57). For the reasons stated herein, BCP’s motion is
On May 5, 2015, Plaintiff filed this action alleging that BCP failed to reasonably
accommodate her hearing disability in violation of the Americans with Disabilities Act (“ADA”),
the Rehabilitation Act, the New York State Human Rights Law (“NYSHRL”), and the New York
City Human Rights Law (“NYCHRL”). (Dkt. 1.)1 The parties completed discovery on August 3,
2016. BCP moved for summary judgment on March 8, 2017. (Dkt. 47.) Plaintiff filed a crossmotion for partial summary judgment on the issue of liability on March 9, 2017. (Dkt. 50.) At
Plaintiff’s request, the Court held oral argument on the parties’ cross-motions on March 15, 2018.
(Dkt. 53.) The dispositive issue with respect to summary judgment was whether the record
The Court assumes the parties’ familiarity with the facts of this case.
contains sufficient evidence for a jury to find that Plaintiff’s disability was a “substantial cause”
of BCP’s denial of mental health services to Plaintiff’s son. See Henrietta D. v. Bloomberg, 331
F.3d 261, 279 (2d Cir. 2003). The Court found that it did, and denied the parties’ cross-motions
for summary judgment on March 19, 2018. (Dkt. 57.) On March 22, 2018, BCP filed its motion
for reconsideration. (Dkt. 58.) Plaintiff opposed BCP’s reconsideration motion on April 4, 2018
(Dkt. 60), and BCP filed its reply on April 9, 2018 (Dkt. 61).
STANDARD OF REVIEW
Under Fed. R. Civ. P. 59(e) and Local Civil Rule 6.3, the decision to grant or deny a motion
for reconsideration “is within the sound discretion of the district court . . . and is an extraordinary
remedy to be employed sparingly in the interests of finality and conservation of scarce judicial
resources.” Hernandez v. Doe, 16-CV-2375 (KAM)(LB), 2016 WL 7391989, at *2 (E.D.N.Y.
Dec. 21, 2016) (citing Mangino v. Inc. Vill. of Patchogue, 814 F. Supp. 2d 242, 247 (E.D.N.Y.
2011)). Generally, a motion for reconsideration will be “denied unless the moving party can point
to controlling decisions or data that the court overlooked—matters, in other words, that might
reasonably be expected to alter the conclusion reached by the court.” Shrader v. CSX Transp.,
Inc., 70 F.3d 255, 257 (2d Cir. 1995). It is “well-settled” that a motion for reconsideration is “not
a vehicle for relitigating old issues, presenting the case under new theories, securing a rehearing
on the merits, or otherwise taking a ‘second bite at the apple.’” Analytical Surveys, Inc. v. Tonga
Partners, L.P., 684 F.3d 36, 52 (2d Cir. 2012) (citation omitted).
In its motion for reconsideration, BCP makes two arguments. First, BCP argues that
Plaintiff’s ADA claim is moot now that BCP has contracted with a company called Sign Talk to
provide American Sign Language (ASL) interpreter services for deaf and hard of hearing patients,
and because Plaintiff’s son no longer needs mental health treatment. (Dkt. 58, at 8-9.)2 Second,
BCP argues that BCP did not discriminate against Plaintiff with “deliberate indifference,” a
requirement for awarding monetary damages under the Rehabilitation Act. (Id. at 9-11.) For the
following reasons, the Court denies both of these arguments.
Plaintiff’s Arguments Are Not New
As an initial matter, Plaintiff’s two arguments are not new; rather, BCP has merely
recapitulated arguments made in its motion for summary judgment. (See Dkt. 47-1, at 19-22.) BCP
has therefore failed to demonstrate an “intervening change of controlling law, the availability of new
evidence, or the need to correct a clear error or prevent manifest injustice” in the Court’s denial of
BCP’s motion for summary judgment. Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d
1245, 1255 (2d Cir. 1992). Nor does BCP identify any critical facts that the Court overlooked in its
prior order. (See generally Dkt. 57.)
However, although the Court previously considered (and
rejected) these two arguments, because it did not do so explicitly in its earlier decision, it does so
Plaintiff’s Claim for Injunctive Relief under the ADA Is Not Moot
BCP first argues that Plaintiff’s request for injunctive relief under the ADA, and thus her
ADA claim3, is moot. The Court disagrees.
“[A]s a general rule, ‘voluntary cessation of allegedly illegal conduct does not deprive the
tribunal of power to hear and determine the case, i.e., does not make the case moot.’” Los Angeles
Cty. v. Davis, 440 U.S. 625, 631 (1979) (quoting United States v. W.T. Grant Co., 345 U.S. 629,
Page numbers refer to the pagination generated by the CM/ECF system, and not the
document’s internal pagination.
Title III of the ADA only allows for injunctive relief, not damages. Powell v. National
Bd. of Med. Exam’rs, 364 F.3d 79, 86 (2d Cir. 2004).
632 (1953)); see also Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167,
189 (2000) (“[A] defendant’s voluntary cessation of a challenged practice does not deprive a
federal court of its power to determine the legality of the practice.”). A case does become moot,
however, if “(1) there is no reasonable expectation that the alleged violation will recur and (2)
interim relief or events have completely and irrevocably eradicated the effects of the alleged
violation.” Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94, 110 (2d Cir. 2010).
“[A] party ‘claiming that its voluntary compliance moots a case bears the formidable burden of
showing that it is absolutely clear the allegedly wrongful behavior could not reasonably be
expected to recur.’” Seidemann v. Bowen, 499 F.3d 119, 128 (2d Cir. 2007) (citation omitted).
BCP argues that injunctive relief is moot because (1) BCP has contracted for ASL services
with Sign Talk and (2) Plaintiff’s son no longer needs mental health treatment. (Dkt. 58, at 8-9.)
The Court finds these arguments unavailing. BCP’s decision to enter into a contract with Sign
Talk for interpreting services on May 29, 2015 does not mean that BCP’s discriminatory behavior
could not recur. The mere existence of a contract is insufficient to show that BCP has “completely
and irrevocably eradicated” practices alleged by Plaintiff. Clear Channel Outdoor, 594 F.3d at
110. BCP could choose to end its relationship with Sign Talk at any time, thereby resurrecting the
set of circumstances that prompted this litigation. Rosa v. 600 Broadway Partners, LLC, 175 F.
Supp. 3d 191, 198–99 (S.D.N.Y. 2016) (“If we conclude that [plaintiff’s] claims are moot, then
should [defendant] determine that future litigation is unlikely, it may well calculate that its new
policy is no longer the preferable course of action and revert to the old policy it prefers and
apparently believes to be legal.”) (quoting Sheely v. MRI Radiology Network, P.A., 505 F.3d 1173,
1189 (11th Cir. 2007)). Moreover, it is still possible for BCP’s employees to deny interpreter
services to prospective patients despite the existence of a contract for these services with Sign
Talk. See Heard v. Statue Cruises LLC, 16-CV-01079 (ALC), 2017 WL 2779710 at *3 (S.D.N.Y.
June 26, 2017) (holding that a mootness challenge fails where defendant cruise liner remedied the
alleged ADA access violation with a “plate wedge” because “[d]efendant could simply choose to
stop using the new plate wedge or its employees could inadvertently fail to do so.”). In other
words, should the Court dismiss this action as moot, there is nothing that prevents BCP from again
violating Plaintiff’s rights under the ADA.
Additionally, BCP has not shown that it has adopted proper policies to ensure that its intake
procedures will no longer violate the ADA. In its opposition to BCP’s motion for reconsideration,
Plaintiff stated, “BCP does not, as a matter of current policy or practice, explicitly ask prospective
or current patients or companions about their communication needs or preference(s)”; “BCP does
not have a policy addressing the provision of interpreters”; and “BCP has not trained its staff on
how to appropriately accommodate deaf or hard of hearing individuals since the filing of the
Complaint in this matter.” (Dkt. 60 at 10.) Indeed, BCP has provided no information that it has
revised its procedures to better accommodate deaf patients. As a result, BCP has not met “the
formidable burden of showing that it is absolutely clear the allegedly wrongful behavior could not
reasonably be expected to recur.” Seidemann, 499 at 128.
BCP has also not shown that Plaintiff’s son no longer needs access to therapy or other
mental health services offered by BCP. Plaintiff stated in her declaration that she and her son
“would consider seeking [mental health] services at Brooklyn Center for Psychotherapy” in the
future. (Dkt. 51-2.) Because Plaintiff and her son still have a “concrete interest” in seeking BCP’s
services, their case is not moot. Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Exp.
& Station Emps., 466 U.S. 435, 442 (1984) (“[A]s long as the parties have a concrete interest,
however small, in the outcome of the litigation, the case is not moot.”) (citation omitted).
Whether BCP Discriminated Against Plaintiff with “Deliberate Indifference”
Under the Rehabilitation Act Is a Question of Fact for the Jury
BCP next argues that even if it did discriminate against Plaintiff, BCP did not discriminate
with “deliberate indifference” according to the Rehabilitation Act. A plaintiff aggrieved by a
violation of the Rehabilitation Act may seek all remedies available under Title VI of the Civil
Rights Act of 1964 (42 U.S.C. § 2000d et seq.), including monetary damages. See 29 U.S.C. §
794a(a)(2). However, monetary damages are recoverable only upon a showing of an intentional
violation, specifically “deliberate indifference to the strong likelihood [of] a violation.” Loeffler
v. Staten Island University Hosp., 582 F.3d 268, 275 (2d Cir. 2009) (emphasis added).
Furthermore, “[i]n the context of the Rehabilitation Act, intentional discrimination against the
disabled does not require personal animosity or ill will. Rather, intentional discrimination may be
inferred when a ‘policymaker acted with at least deliberate indifference to the strong likelihood
that a violation of federally protected rights will result from the implementation of the [challenged]
policy . . . [or] custom.’” Id. (citation omitted). Indeed, “deliberate indifference will often be a
fact-laden question, for which bright line rules are ill-suited.” Tesoriero v. Syosset Cent. Sch. Dist.,
382 F. Supp. 2d 387, 398 (E.D.N.Y. 2005) (citation and internal quotation marks omitted).
BCP argues that Raquel Arroyo, director of Clinical Services at BCP, spent “considerable
time on two different occasions speaking with plaintiff” and offered to make calls on Plaintiff’s
behalf to secure immediate mental health services for Plaintiff’s son. (Dkt. 58, at 10.) As a result,
BCP argues that a reasonable juror would find that BCP did not discriminate against Plaintiff with
“deliberate indifference” under the Rehabilitation Act. The Court disagrees: whether BCP acted
with deliberate indifference is a question of fact for the jury. In Loeffler v. Staten Island, the
Second Circuit addressed a case involving a hospital’s refusal to provide interpreter services to a
deaf patient and wife. 582 F.3d at 275-76. In reversing the district court’s granting of summary
judgment for the hospital, the Court held that a reasonable jury could conclude that “persons at the
Hospital had actual knowledge of discrimination against [Plaintiffs], had authority to correct the
discrimination, and failed to respond adequately.” Id. at 277. Like Loeffler, the record in this case
could also support a finding of deliberate indifference. Even if BCP had a general policy of
providing interpreters, Ms. Arroyo told Plaintiff that Ms. Arroyo could not schedule an interpreter
for Plaintiff at the time of their two conversations, and that an important part of treatment required
Plaintiff’s ongoing involvement as a parent, as reflected in Ms. Arroyo’s notes of the
Conversely, there are certainly facts in the record that might lead a reasonable jury to
conclude that BCP was not deliberately indifferent. As the Court recognized in its Summary
Judgment Order, Ms. Arroyo had two extended phone conversations with Plaintiff about the best
course of treatment for Plaintiff’s son’s mental health issues. Ms. Arroyo explained that BCP’s
therapy program had no slots available for Plaintiff’s son and made an effort to refer Plaintiff to
other hospitals in the area. Ultimately, however, the question of whether BCP discriminated
against Plaintiff is one that must be resolved by a jury. See Stamm v. New York City Transit Auth.,
04-CV-2163 (SLT) (JMA), 2013 WL 244793 at *4 (E.D.N.Y. Jan. 22, 2013) (holding that dispute
of fact regarding deliberate indifference existed where “a jury could reasonably conclude that at
least one . . . official with authority to address the alleged discrimination and to institute corrective
measures on Plaintiff’s behalf had actual knowledge of ongoing discrimination against Plaintiff
but failed to respond adequately”).
Because BCP has not satisfied the strict standards of Local Civil Rule 6.3 and Federal Rule
of Civil Procedure 59(e), its motion for reconsideration is denied.
/s/ Pamela K. Chen
Pamela K. Chen
United States District Judge
Dated: April 11, 2018
Brooklyn, New York
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