Doe v. New York College of Osteopathic Medicine of New York Institute of Technology et al

Filing 248

ORDER granting in part 235 NYIT's Motion for Summary Judgment. On July 21, 2023, this Court denied in part and deferred ruling on in part 235 NYIT's Motion for Summary Judgment. The Court reserved decision on the claims which Plaintif f's former counsel withdrew in Plaintiff's 236 Opposition to NYIT's Motion for Summary Judgment. For the reasons stated in the attached, the Court holds that Plaintiff is bound by his former counsel's withdrawal of his remaining claims. Accordingly, the Court grants 235 NYIT's Motion for Summary Judgment as to those claims. Ordered by Judge Nina R. Morrison on 2/28/2024. (AD)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
Ajay Bahl,

OPINION AND ORDER

Plaintiff,

No. 2:14-cv-04020-NRM-LGD

v.
New York College of Osteopathic
Medicine of New York Institute of
Technology,
Defendant.

NINA R. MORRISON, United States District Judge:
On July 21, 2023, this Court issued an order denying in part and deferring
ruling on in part Defendant New York Institute of Technology’s (“NYIT”) motion for
summary judgment. See Summ. J. Order, ECF No. 242. The Court reserved decision
regarding certain claims that Plaintiff Ajay Bahl’s former counsel had withdrawn in
a brief filed in February 2023, and which Bahl, now proceeding pro se, has indicated
a desire to pursue. After reviewing the parties’ positions and the relevant legal and
factual background, the Court concludes that Bahl is bound by his former counsel’s
withdrawal of his claims. The Court thus grants summary judgment for NYIT on
Bahl’s remaining claims.

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BACKGROUND 1
On June 27, 2014, Ajay Bahl filed a complaint against NYIT, sued as New York
College of Osteopathic Medicine of New York Institute of Technology, as well as three
other Defendants that have since been terminated from the action. Compl., ECF No.
1.
Bahl’s complaint arises out of his enrollment in NYIT’s Doctor of Osteopathic
Medicine program. His complaint alleged that NYIT pressured him into taking a
medical leave of absence during his third-year clinical rotations, id. at 6–7, during
which he was diagnosed with Attention Deficit Hyperactivity Disorder, Generalized
Anxiety Disorder, DEF (Deficits in Executive Functioning), and Cluttering (fluency
speaking and expressive language dysphasia disorders), id. at 9. Bahl later returned
to his studies and completed his required coursework but was required to pass the
Comprehensive Osteopathic Medical Licensing Examination (“COMLEX”) II CE and
PE tests to graduate. Id. at 11. According to Bahl, he requested accommodations
from NYIT for the COMLEX II tests based on his disabilities. Id. at 11–19. He
alleged that NYIT denied his requests for accommodations and, as a result, he was
unable to complete the program and has suffered emotional and financial damages.
Id. at 19.
On February 2, 2015, Bahl filed a motion to amend his complaint, Mot. to

The Court assumes familiarity with the factual and procedural background
of this matter, as explained in the Court’s prior decisions in this case, see Order on
Mot. to Amend, ECF No. 75; Summ. J. Order, ECF No. 242, and highlights only those
facts relevant to the instant dispute.
1

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Amend Compl., ECF No. 49, which the Court granted in part and denied in part on
June 28, 2015, Order on Mot. to Amend, ECF No. 75. As relevant here, the Court
denied Bahl’s request to seek injunctive relief in connection with his claims pursuant
to the Americans with Disabilities Act of 1990. Id. at 14. Bahl’s complaint, as
amended, alleged that NYIT violated the Rehabilitation Act of 1973 and New York
State Human Rights Law by failing to accommodate his disability. Am. Compl., ECF
No. 77 at 25–27, 43–46.

It also alleged that NYIT condoned third party

discrimination against Bahl, id. at 21; retaliated against Bahl and coerced,
intimidated, threatened, or interfered with him, id. at 23; violated the Rehabilitation
Act’s implementing regulations, id. at 27; created a hostile educational environment,
id. at 28; violated 28 CFR § 36.309(B)(1)(I), id. at 32; violated his right to equal
protection, id. at 33; was unjustly enriched, id. at 35; breached its contract with Bahl,
id. at 36; negligently inflicted emotional distress on Bahl, id. at 37; made negligent
misrepresentations to Bahl, id. at 38; violated New York General Business Law §
349, id. at 39; and violated NYC Admin. Code § 8-107(15)(A), id. at 46.
The parties proceeded with discovery for several years. During that time,
Plaintiff retained and terminated several different lawyers and at times acted pro se.
On October 31, 2022, Bahl retained attorneys from a law firm called Advocates for
Justice, Chartered Attorneys (“Advocates for Justice”). NYIT moved for summary
judgment on the Complaint in its entirety, Mem. in Supp. of Mot. for Summ. J. at 40,
ECF No. 235-5, which Bahl, through counsel Advocates for Justice, opposed. Bahl
served his opposition brief on NYIT on December 30, 2022, Order dated Dec. 12, 2022,

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and NYIT filed the fully briefed motion with the Court on February 21, 2023, see Mot.
for Summ. J., ECF No. 235; Opp’n to Summ. J., ECF No. 236; Reply in Support of
Mot. for Summ. J., ECF No. 237.
Bahl’s opposition expressly withdrew his “claims for disparate treatment
discrimination, retaliation, hostile learning environment, aiding and abetting
discrimination, equal protection, breach of an implied agreement, negligent infliction
of emotional distress, negligent misrepresentation, deceptive practices, and his New
York City Human Rights Law claims.” Opp’n to Summ. J. at 5. The opposition brief
contested summary judgment only as to Bahl’s remaining failure to accommodate
claims. The Court scheduled oral argument on the motion for June 30, 2023. Order
dated June 8, 2023.
Over six months after Bahl served his summary judgment opposition on NYIT,
and on the morning of oral argument, Bahl emailed a letter 2 to the Court and all
counsel requesting “an emergency adjournment of the hearing” because he
“terminated Advocates for Justice as [his] attorneys in this case.” Letter dated June
29, 2023 (“June 29 Letter”), ECF No. 241. Bahl stated that he did so as a “result of a
longstanding lack of communication and unresolved differences as to how the case
should be prosecuted.” Id. As relevant here, he alleged that “crucial aspects of the
case” were not raised by his counsel in the opposition for summary judgment and that
“[s]everal of [his] claims” were “apparently withdrawn without [his] authorization,

The letter is dated June 29, 2023, but was “emailed to the Court and all
counsel on Friday, June 30, 2023, at 8:16 a.m.” Minute Order dated July 1, 2023.
2

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and in some cases against [his] explicit instruction.” Id. He elaborated that “most
crucial of these is [his] claim for injunctive relief (reinstatement to medical school),
which the Court previously denied as moot because it mistakenly believed that [he]
had already graduated.” Id.
The Court proceeded with the oral argument hearing as scheduled, with Bahl
and counsel for both sides present. Before turning to the merits of the summary
judgment motion, the Court asked Bahl to provide more information regarding the
concerns raised in his June 29 Letter. Tr. of June 30, 2023 Hearing (“June 30 Tr.”)
at 3:16–25; 4:1–3, ECF No. 245. Bahl averred that “the day [the motion] was due was
the first time there was any drafts, missing things were shown to me. And I, you
know, was never interviewed or had a chance to communicate.” June 30 Tr. at 4:4–
7. Bahl also stated that he had expected his attorneys to make additional arguments
in further briefing, which did not occur. June 30 Tr. at 4:8–25.
The Court then questioned Bahl’s counsel, who stated that the only concern
Bahl raised regarding the summary judgment briefing related to Bahl’s retaliation
claim. June 30 Tr. at 5:18–25. Bahl wanted to continue to pursue his retaliation
claim, but his counsel told Bahl that they “could not, under Rule 11, make that
argument because [he] thought it was frivolous.” June 30 Tr. at 5:23–6:3. Bahl’s
counsel stated that he did not hear from Bahl for several months after that, and Bahl
did not raise any other concerns. June 30 Tr. at 6:4–7:4.
The Court then told Bahl that it planned to proceed with argument as to Bahl’s
failure to accommodate claims, June 30 Tr. 9:11–20, but stated that if Bahl “g[o]t a

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new lawyer and [has] arguments as to why [the Court] should let [him] revive [his]
other claims or consider summary judgment on those,” the Court would hear those
arguments.

June 30 Tr. at 10:2–7.

The Court then gave Bahl the option of

terminating counsel and arguing the failure to accommodate claims pro se, but Bahl
opted to have his counsel argue on his behalf. June 30 Tr. at 9:15–16, 17:16–19.
In the Court’s minute entry for the June 30 hearing, it directed Bahl or his
counsel to inform the Court whether Bahl intended to continue being represented by
counsel. Minute Order dated July 1, 2023. On July 7, 2023, Bahl wrote a letter to
the Court stating that he intended to seek other counsel in this case. Letter dated
July 7, ECF No. 239. The Court then issued an order on July 12 directing Bahl to
confirm plans to proceed pro se or have new counsel enter an appearance by August
11, 2023. Order dated July 12, 2023. 3 In the same order, the Court noted Bahl’s
argument in his June 29 Letter that his counsel “conceded claims without Plaintiff’s
knowledge or consent.” Id. The Court directed NYIT to “file a letter brief in support
of its position that Plaintiff remains bound by the concessions made in the
memorandum of law filed by his former counsel in response to Defendant’s motion for
summary judgment, and any legal arguments as to waiver it wishes to make in
support of that position.” Id. The Court further directed Plaintiff to respond to
Defendant’s letter brief within 30 days of its filing. Id.

Bahl has not filed a response to this Order. On July 11, 2023, Advocates for
Justice filed a motion to withdraw as Bahl’s counsel, Mot. to Withdraw, ECF No. 240,
which this Court granted on February 27, 2024, Order on Mot. to Withdraw, ECF No.
247. Bahl is thus currently acting pro se.
3

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On July 21, 2023, the Court denied NYIT’s motion for summary judgment as
to Bahl’s failure to accommodate claims. Summ. J. Order. However, the Court noted
that “decision on NYIT’s motion for summary judgment as to the remaining claims in
the Amended Complaint is reserved pending further briefing by the parties as to
whether Bahl has waived his right to oppose summary judgment on those claims.”
Id.
On August 11, NYIT filed a letter arguing that Bahl is bound by the
concessions Bahl’s former counsel made in their opposition to NYIT’s motion for
summary judgment. Letter dated Aug. 11, 2023 (“August 11 Letter”), ECF No. 244.
As of this writing, Bahl has not responded to NYIT’s letter.
DISCUSSION
In its August 11 Letter, NYIT contends that Bahl’s former attorneys were
acting as his agents when they withdrew Bahl’s claims and, therefore, Bahl is bound
by their concessions. The Court agrees.
As a general matter, in “our system of representative litigation,” “each party is
deemed bound by the acts of his lawyer-agent and is considered to have ‘notice of all
facts, notice of which can be charged upon the attorney.’” Link v. Wabash R. Co., 370
U.S. 626, 634 (1962). Therefore, “where a party voluntarily chooses an attorney as
his or her representative in a litigation, the party cannot subsequently ‘avoid the
consequences of the acts or omissions of this freely selected agent.’” Stone v. Town of
Westport, No. 3:04-cv-18, 2007 WL 108454, at *7 (D. Conn. Jan. 12, 2007) (quoting
Link, 370 U.S. at 633–34).
However, there are certain instances where, if a party can show that his
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attorney was acting without authority, that party can be relieved from his attorney’s
actions. For example, courts have long recognized “that the decision to settle a case
rests with the client alone.” United States v. Int’l Bhd. of Teamsters, Chauffeurs,
Warehousemen & Helpers of Am., AFL-CIO, 986 F.2d 15, 19 (2d Cir. 1993). Courts
have thus noted that “a settlement agreement is binding only if the attorney (the
agent) had the client’s (the principal’s) actual or apparent authority to enter into the
agreement.” Hillair Cap. Invs., LP v. Smith Sys. Transp., Inc., 640 F. App’x 49, 51
(2d Cir. 2016). Therefore, while courts “‘presume that an attorney-of-record who
enters into a settlement agreement, purportedly on behalf of a client, had authority
to do so,’ th[at] presumption is rebuttable.” Gomez v. City of New York, 805 F.3d 419,
424 (2d Cir. 2015) (quoting Int’l Bhd., 986 F.2d at 20). And where a party rebuts the
presumption that his attorney acted with the requisite authority, he is entitled to
relief from the settlement. Id. at 425.
It is unclear whether the decision to withdraw claims, like the decision to settle
a case, “rests with the client alone.” Int’l Bhd., 986 F.2d at 19. At least one court in
this Circuit has held that it does not. In Stone v. Town of Westport, the United States
District Court for the District of Connecticut considered an almost identical issue to
the one before this Court. 2007 WL 108454, at *7. There, like here, plaintiffs alleged
that their former counsel withdrew “certain of their claims . . . without their consent”
and sought “restoration of the withdrawn claims.” Id. The court noted that because
“[a]n attorney and his or her client(s) stand in a ‘relationship of principal and agent,
with the attorney being the agent . . . and acting with, at least, apparent authority,”

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“a client is not generally excused from the consequences of his attorney’s nonfeasance
or negligence.” Id. The Court thus held that plaintiffs were bound by their former
counsel’s “decision to voluntarily withdraw their claims.” Id.
In a footnote, the Court explained that “[t]his principle of representative
litigation that a client is held to his or her attorney[’s] legal judgment to withdraw a
claim is thus distinct from the operative principle in the context of settlement
discussions that ‘the decision to settle a case belongs to the client alone.’” Id. at *7
n.7 (quoting Johnson v. Schmitz, 237 F. Supp. 2d 183, 188 (D. Conn. 2002)). The
Court thus did not consider whether the plaintiffs did, in fact, authorize their former
counsel to withdraw the claims.
Consistent with the Stone v. Town of Westport Court’s reasoning, other courts
have recognized the “three major aspects of decision-making in litigation that are
exercised by a client: the decision to bring suit, the decision as to which attorney to
retain, and the decision to settle.” United States Sec. & Exch. Comm’n v. Collector's
Coffee Inc., 602 F. Supp. 3d 488, 506 (S.D.N.Y. 2022). While “[a] potential fourth area
occurs when clients are called upon to make strategic decisions about the progress of
a case,” “such decisions are not required of clients in all cases, and counsel frequently
have no need to obtain a client’s permission to make such decisions.” Id. Because
Bahl’s former counsel did not settle Bahl’s entire lawsuit, they may not have needed
Bahl’s consent to make the strategic decision of withdrawing some of Bahl’s claims
and continuing to pursue others.
Yet the Second Circuit has also stated that “the decision to settle or otherwise

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dismiss claims ‘rests with the client’ and is ‘not automatically bestowed on retained
counsel.’” Gomez, 805 F.3d at 424 (emphasis added) (cleaned up). This language
indicates, albeit indirectly, that voluntary termination of claims may be the
functional equivalent of settlement and thus require a client’s authorization. In
many circumstances, there will be little functional difference between settling and
withdrawing a party’s claims. In an abundance of caution, therefore, this Court
assumes without deciding that Bahl’s former counsel’s decision to withdraw his
claims requires the same scrutiny as do decisions to settle the action itself.
In the settlement context, courts have held that “[t]o overcome the general
presumption that an attorney-of-record has authority to settle, ‘any party challenging
an attorney’s authority . . . bears the burden of proving by affirmative evidence that
the attorney lacked authority.’” Hillair Cap., 640 F. App’x at 52. Relying on that
principle here, the Court concludes that Bahl has not met his burden. In so doing,
the Court is limited to considering Bahl’s arguments raised in his June 29 Letter and
at the June 30 hearing, as Bahl has not responded to NYIT’s August 11 Letter.
Starting with Bahl’s June 29 Letter, Bahl alleged that several of his claims
had “apparently been withdrawn without [his] authorization, and in some cases
against [his] explicit instruction.” June 29 Letter. But the only example Bahl gave
in his Letter was his “claim for injunctive relief, . . . which the Court previously denied
as moot.” Id. As NYIT points out, the Court had previously denied Plaintiff’s motion
to amend the Complaint to add this claim, and thus, the claim “could not have been
withdrawn.” August 11 Letter at 3.

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Nor did Bahl make any specific arguments as to claims that his former counsel
withdrew during the June 30 Hearing. Indeed, while Bahl indicated that he had been
dissatisfied with his counsel’s briefing and their communication, he did not explicitly
reallege that his former counsel withdrew his claims without his consent. June 30
Tr. 4:4–5:1. To the contrary, Bahl stated that “on the day [the summary judgment
opposition] was due the first time there was any drafts, missing things were shown
to [him],” June 30 Tr. 4:4–7—indicating that Bahl had reviewed the withdrawn
claims when the opposition brief was served on NYIT in December 2022 (or at the
latest, before it was filed in February 2023), yet did not voice any objection with the
Court or otherwise indicate that he had not ultimately consented to the withdrawal
of those claims.
For his part, Bahl’s former counsel stated that Bahl wanted him to raise a
retaliation claim, but that they “sat and talked about it” and Bahl’s counsel told Bahl
that he “could not, under Rule 11, make that argument because [he] thought it was
frivolous. And then [they] didn’t talk for months.” June 30 Tr. at 5:24–6:3. Bahl’s
former counsel also stated that he told Bahl: “if you have a good alternative, if you
have something that you think is missing, we will ask the Judge to file a
supplemental memo.” June 30 Tr. at 6:24–7:1. However, according to Bahl’s counsel,
“other than [with respect to] the retaliation claim, [they] never heard another thing
from him.” June 30 Tr. at 7:2–4.
On this record, the Court cannot conclude that Bahl’s former counsel lacked
authority to withdraw Bahl’s claims. Other than asserting as much in his June 29

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Letter, Bahl has made no specific arguments explaining which claims his former
counsel wrongfully withdrew. Bahl’s former counsel’s statements during the June 30
Hearing indicate that Bahl was aware that his claims had been withdrawn at the
time the opposition brief was served on NYIT, yet only raised his concerns with the
Court six months later. Bahl’s delay in bringing this matter to the Court’s attention
further indicates that his former counsel acted with Bahl’s authority when
withdrawing Bahl’s claims. See Hillair Cap., 640 F. App’x at 53 (finding a year and
a half “delay in raising” concerns about a settlement to be “fatal to [a party’s] claim
that [its attorney] lacked apparent authority.”). Bahl is thus bound by his former
counsel’s concessions.
The Court notes that “in circumstances where a former attorney and his client
dispute the giving of authority, courts generally require the holding of an evidentiary
hearing on the question of authorization.” Gomez, 805 F.3d at 424 (quoting Michaud
v. Michaud, 932 F.3d 77, 81 (1st Cir. 1991)). However, the Court concludes that an
evidentiary hearing would not be appropriate here. Bahl’s conclusory allegation
regarding his counsel’s unauthorized withdrawal of his claims is insufficient to
“raise[] a factual dispute” meriting an evidentiary hearing. Id. Moreover, Bahl’s
failure to elaborate on that allegation during the June 30 Hearing or to submit a
response to NYIT’s August 11 Letter indicates that an evidentiary hearing would not
be a productive use of this Court’s resources.
CONCLUSION
For the foregoing reasons, Bahl is bound by his former counsel’s withdrawal of

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his claims against NYIT as set forth in Bahl’s brief dated December 30, 2022, and
filed with the Court on February 21, 2023. See Opp’n to Summ. J. Accordingly, the
Court grants NYIT’s motion for summary judgment as to those claims.
SO ORDERED.

/s/ NRM
__________________________
NINA R. MORRISON
United States District Judge
Dated:

February 28, 2024
Brooklyn, New York

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