Doe v. New York College of Osteopathic Medicine of New York Institute of Technology et al
MEMORANDUM AND ORDER denying as moot 42 Motion to Dismiss for Lack of Jurisdiction; denying as moot 44 Motion to Dismiss for Failure to State a Claim; granting in part and denying in part 49 Motion to Amend/Correct/Supplement. For the reas ons stated herein, Plaintiffs motion to amend his Complaint is granted in part and denied in part. Plaintiff is directed to file his Amended Complaint in accordance with the rulings made herein within five (5) days. In addition, the pending motions t o dismiss filed by Defendants NBOME and Plainview Hospital are denied as moot since they are directed to the original Complaint, which is no longer the operative pleading in this action. Defendants are directed to advise the Court, in writing, within ten (10) days, whether they intend to move to dismiss the Amended Complaint or, since discovery is currently ongoing and set to close in approximately five months, whether they will instead move for summary judgment upon the close of discovery. The Clerk of the Court is directed to terminate the motions pending at Docket Entries 42 , 44 , and 49 .. Ordered by Judge Leonard D. Wexler on 7/28/2015. (Fagan, Linda)
IN CLERK'S OFFICE
U S DISTRICT COURTED NY
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
LONG ISLAND OFFICE
MEMORANDUM AND ORDER
NEW YORK COLLEGE OF OSTEOPATHIC
MEDICINE OF NEW YORK INSTITUTE OF
TECHNOLOGY ("NYCOM-NYIT" or "NYCOM");
THE NATIONAL BOARD OF OSTEOPATHIC
MEDICAL E)(AMINERS ("NBOME");
and NORTH SHORE LONG ISLAND JEWISH
PLAINVIEW HOSPITAL ("NS-LIJ"),
KEVIN T. MULHEARN, ESQ.
BY: Kevin T. Mulhearn, Esq.
Attorney for Plaintiff
60 Dutch Hill Road, Suite 8
Orangeburg, New York 10962
NORTON ROSE FULBRIGHT US LLP
BY: Douglas P. Catalano, Esq.
Neil G. Sparber, Esq.
Samantha Beltre, Esq.
Attorneys for Defendant New York Institute of Technology
666 Fifth Avenue
New York, New York 10103
NI)(ON PEABODY LLP
BY: Christopher G. Gegwich, Esq.
Alexander E. Gallin, Esq.
Attorneys for Defendant Plainview Hospital
50 Jericho Quadrangle, Suite 300
Jericho, New York 11753
WEXLER, District Judge:
Before the Court are motions to dismiss Plaintiffs Complaint by Defendants National
Board of Osteopathic Medical Examiners ("NBOME") and Plainview Hospital (the "Hospital),
sued herein as North Shore Long Island Jewish Plainview Hospital. In opposition to the within
motions, Plaintiff, without leave of Court, cross-moves to amend his Complaint to add new
causes of action against Plainview Hospital and Defendant New York Institute of Technology
("NYIT"), sued herein as New York College of Osteopathic Medicine of New York Institute of
Technology. Both Plainview Hospital and NYIT oppose Plaintiff's motion to amend. 1
Despite the procedural violation of Plaintiff's motion, the Court will allow the motion to
amend the Complaint and will address it first. For the following reasons, Plaintiff's motion to
amend the Complaint is granted in part and denied in part.
In July 2008, Plaintiff, Ajay Bah! ("Bah!" or "Plaintiff'), an individual who suffers from a
myriad of attention-deficit, speech, reading, language and anxiety-related disabilities,
commenced studies in Defendant NYIT's four-year osteopathic medicine program. (Proposed
Am. Compl. ~~ I 0-11.) Plaintiff completed his first two years of course work at NYIT without
incident, passing all of his classes. (Id.
I 0, 12.)
In July 2010, upon Plaintiff's successful completion of his second year of studies at
NYIT, Plaintiff was required to take his first Comprehensive Osteopathic Medical Licensing
NYIT did not file a motion to dismiss Plaintiff's Complaint, instead filing an Answer.
NBOME, who has a motion to dismiss pending, does not oppose Plaintiff's motion to amend the
Examination, Level 1, known as the "COMLEX I" examination, which is the first of a series of
three cognitive exams that NYIT students are required to pass. (Id. ~ 13.) The COMLEX I is a
full-day, eight-hour examination administered by Defendant NBOME consisting of 400
computerized, multiple choice questions, given in two sections of four-hour blocks, separated by
a forty-minute break. (!!h) Plaintiff failed the COMLEX I exam on his first attempt. (Id.)
Pursuant to the NYIT student handbook, Plaintiff commenced a "COMLEX I Mandatory
Administrative Leave of Absence." (Id.)
Three months later, in October 2010, Plaintiff again took the COMLEX I examination
and passed, which officially qualified Plaintiff to work in a hospital setting.
thereafter began his third year medical student clinical rotations. (Id.) Between October 2010
and June 2011, Plaintiff successfully completed all of his assigned third-year core clinical
In June 2011, Plaintiff began a ten-week surgical rotation at Plainview Hospital. (Id.
17.) One morning during this rotation, as Plaintiff was preparing to observe a surgical procedure,
a Plainview Hospital Operating Room ("OR") Scrub Technician advised Plaintiff that his sleeves
were too long to wear with surgical scrubs.
18.) The Scrub Technician ordered Plaintiff to
change his clothes. (!d.) Rather than changing his clothes, Plaintiff adjusted his sleeves so that
they were no longer exposed under the surgical scrubs. (Id.) Plaintiff showed his adjustment to
the Scrub Technician and asked for her approval. (Id.) The Scrub Technician shrugged and
replied "I guess so" and she and Plaintiff entered the OR. (Id.)
A few days later, the Director of Medical Education at Plainview Hospital, Dr. Gary
Rachlin, advised Plaintiff that the Scrub Technician had filed a complaint to the Hospital's
Department of Medical Education, alleging that Plaintiff had not obeyed her orders. (Id.
23.) Plaintiff disputed the Scrub Technician's version of events and Dr. Rachlin agreed to look
further into the matter. (Id.
20.) Approximately one week later, Plaintiff asked Dr. Rachlin if
he had spoken with the Scrub Technician but it did not appear that he had contacted her.
21.) Months later, Plaintiff asked Dr. Abraham Jeger, Professor and Associate Dean of Clinical
Education at NYIT, if he knew whether the issue with the Scrub Technician had been resolved.
22.) Dr. Jeger and NYIT Dean Mary Ann Achtziger warned Plaintiff that if he asked Dr.
Rachlin about the incident again, he would likely fail his surgical clerkship. (Id.)
On or about June 29,2011, Plaintiff was summoned to a meeting with Dr. Rachlin. (Id.
23.) During this meeting, Dr. Rachlin indicated that he found Plaintiffs speech patterns to be
undesirable, criticizing what he referred to as Plaintiff's "anxious" way of speaking and
describing Plaintiffs speech as "incoherent."
24.) Dr. Rachlin advised Plaintiff that he
intended to share these criticisms with Dr. Jeger and that he planned to check Plaintiffs
academic record for anything "glaring." (Id.
On or about July I, 2011, Plaintiff met with Drs. Rachlin and Jeger, as well as unnamed
others at the Hospital.
26.) Dr. Jeger advised Plaintiff that he believed Plaintiff would be
"anxious" and would "have problems" throughout his surgical rotation, were he to continue the
rotation. (.!d.) Plaintiff was provided with two options by Drs. Rachlin and Jeger- he could
either agree to a "voluntary" medical leave of absence, to begin immediately, or he could fail his
surgical clerkship. (Id.) Dr. Jeger assured Plaintiff that if he agreed to the medical leave of
absence, Plaintiff's transcript would reflect the fact that he had successfully completed- and
passed- six weeks of the ten-week surgical rotation. (Id.
36.) Dr. Jeger further assured
Plaintiff that he could finish the rest of the surgical rotation later, without prejudice to his
academic standing? (Id.)
Plaintiff discussed this proposal with Dr. Leonard Goldstein, NYIT's Associate Clinical
Dean, who advised Plaintiff that he did not think a medical leave was necessary. (Id. ~ 27.)
However, Dr. Goldstein urged Plaintiff to take the leave of absence and to take the two-part
COMLEX II examination during his leave of absence. (!4, ~ 28.) Plaintiff felt that he had no
choice but to consent to the "voluntary" medical leave of absence. (!4, ~ 35.)
While on his leave of absence, Plaintiff registered for the COMLEX II CE exam, as
suggested by Dr. Goldstein. (Id.
39.) However, shortly after Plaintiff completed his
registration, he learned that he had been de-registered by NYIT. (Id.) When Plaintiff asked Dr.
Jeger why NYIT had de-registered him, Dr. Jeger replied, "If you took the [COMLEX II CE]
exam [while on medical leave] and failed, you would blame it on being sick. And if you passed,
you would say you were healthy." (!4,)
During the summer and fall of 20 II, while on medical leave, Plaintiff sought treatment
and insight into his disabilities. (Id.
40.) Plaintiff was diagnosed with the following
conditions: (I) Attention Deficit Hyperactivity Disorder; (2) Generalized Anxiety Disorder; (3)
DEF (Deficits in Executive Functioning); and (4) Cluttering (fluency speaking and expressive
language dysphasia disorders). (!d.) The foregoing conditions slow down Plaintiff's written and
Contrary to Dr. Jeger's assurances, Plaintiff later learned that he had received credit for
only five weeks of the surgical rotation, not six. (Proposed Am. Compl. ~ 36.) Moreover,
Plaintiff's transcript stated that Plaintiff had withdrawn from his surgical rotation. (!4, ~ 37.)
Plaintiff pointed out the transcript error to NYIT Assistant Dean Felicia Bruno, who agreed it
was incorrect. (!d.~ 38.) However, Plaintiff's transcript was never corrected. (!4,) Plaintiff
ultimately received full credit for the surgical rotation upon completion of the course following
his medical leave of absence. (Id. ~ 3 7.)
verbal testing speed but have no effect on his intellectual abilities or acumen.
M , 41.) An
assessment by Dr. Paul Yellin, dated September 23, 2011, concluded that Plaintiff's "struggles
... constitute a disability significant enough to qualify for accommodation under the Americans
with Disabilities Act." (Id., 42.)
During his medical leave, Plaintiff also met with Dr. Sergei Belkin, NYIT's School
Psychiatrist. (Id., 44.) Dr. Belkin warned Plaintiff that if he brought up his anxiety-related
issues to NYIT, he would be dismissed from school. (Id.) Dr. Belkin's warning further
aggravated Plaintiffs anxiety-related disabilities. (Id., 45.) Plaintiff returned to his studies at
NYIT in September 20 II and successfully completed his third and fourth-year rotations by
October 2012. (Id., 48.)
While Plaintiff completed all of his course and clinical clerkship requirements for
graduation from NYIT, he also was required to take, and pass, two more examinations,
COMLEX II CE and COMLEX II PE, in order to graduate.
(!4,, 49.) The COMLEX II CE
exam consists of eight hours of testing, given in two four-hour sessions in tbe course of one day.
(Id., 50.) The COMLEX II CE exam is a problem-based exam that assesses knowledge of
clinical concepts and medical decision-making. (Id.). The COMLEX II PE exam is a clinical
skills exam administered over the course of seven hours. (Id. , 51.) In this exam, students
perform live evaluations of multiple "patients" and write their comments out by hand. (Id.) The
COMLEX II PE is strictly timed. (Id.) Botb exams are graded on a pass/fail basis. (Id.)
Plaintiff asked NYIT for permission to apply for appropriate and reasonable testing
accommodations for the COMLEX II CE and COMLEX II PE exams. (Id., 52.) In response to
Plaintiff's request, NYIT Assistant Dean Bruno advised Plaintiff that, as per a rule set forth in the
NYIT student handbook, he would be dismissed from school if he did not attempt both the
COMLEX II CE and COMLEX II PE exams prior to his stated graduation date of December 31,
Again, Plaintiffs anxiety worsened. (Id.
In reliance on Assistant Dean Bruno's instructions, Plaintiff registered for both the
COMLEX II CE and COMLEX II PE exams.
63.) Plaintiff took both exams in December
2012 without any accommodations and failed both exams. (.!Q,).
In January 2013, Plaintiff began a mandatory six-month COMLEX leave of absence. (Id.
64.) In April2013, Plaintiff registered to take the COMLEX II PE exam a second time. (Id.
65.) Plaintiff again took the COMLEX II PE exam without any accommodation and again failed
the exam. (I d.
In May 2013, Plaintiff applied to the NBOME for extended time to take the COMLEX II
CE exam based on his diagnosed disabilities with respect to reading fluency and reading rate.
68.) Approximately six weeks later, the NBOME denied Plaintiff's accommodation
In June 2013, Plaintiff applied to the NBOME for extended time to take the COMLEX II
PE exam to accommodate his expressive language dysphasia. (.!Q, ~ 70.) The NBOME did not
respond to Plaintiff's request. (Id.)
Plaintiff followed up with the NBOME regarding his accommodation request. (Id.
The NBOME advised Plaintiff that a "mix up" had prevented them from processing Plaintiff's
accommodation request. (Id.) Finally, the NBOME informed Plaintiff that it might consider
processing his accommodation request by the impending September 5, 2013 test date if he
submitted additional information documenting his accommodation needs. (Id.
Plaintiff provided the additional information requested by the NBOME; however, his
submission was ultimately rejected by an NBOME official who advised Plaintiff that it would
take too long for them to consider the material. (Id. , 73.) Despite Plaintiff's attempts to explain
why he needed accommodations, the NBOME rejected Plaintiff's accommodation requests for
both the COMLEX II CE and COMLEX II PE exams. (Id., 74.)
On or about August 30,2013, Plaintiff's counsel submitted a letter to NYIT's Office of
Disability Services ("ODS"), requesting that Plaintiff be allowed to take a six-month medical
leave of absence to allow him to take both the COMLEX II CE and COMLEX II PE exams by
February 2014. (Id., 75.) The letter was supported by medical evidence documenting Plaintiffs
diagnosed disabilities. (Id.)
Plaintiff thereafter met with Alyssa Aprovenzano, a representative ofNYIT's ODS, who
advised Plaintiff that he was a student with a disability entitled to a reasonable accommodation
relative to the two COMLEX II exams.
Ms. Aprovenzano further advised Plaintiff that
ODS would try to get Plaintiff his requested accommodations for the COMLEX II exams
scheduled for September 5, 2013, or, if not possible, for a later date. (Id.) Finally, Ms.
Aprovenzano informed Plaintiff that if the reasonable accommodations could not be arranged in
time for the scheduled exams, ODS would actively support Plaintiff's request for a medical leave
of absence to take the COMLEX II exams at a later date and would assist Plaintiff in securing
reasonable testing accommodations from the NBOME. (Id.)
On September 19, 2013, Plaintiff contacted NYIT Dean Achtiziger regarding his August
30, 2013 application to the ODS for a medical leave of absence.
denied Plaintiffs request for a medical leave in an email dated September 20, 2013, stating that
Plaintiff was not eligible for medical leave because he was already on a mandatory COMLEX
leave of absence. (Id.
78.) Dean Achtiziger further advised Plaintiff that he was not an active
student when he requested the medical leave. (Id.
Plaintiff thereafter retained a civil rights attorney, who commenced a dialogue with
NYIT's Assistant General Counsel, asking that NYIT not dismiss or de-register Plaintiff while he
filed a complaint with the United States Department of Education's Office of Civil Rights
("OCR"), allowing the OCR time to investigate. (Id.
On or about September 24, 2013, Plaintiff filed an internal grievance petition with NYIT,
alleging that its' COMLEX leave policy prohibiting a student on COMLEX leave from
simultaneously taking another form ofleave - specifically, medical leave - as well as its policy of
strictly and without exception linking graduation with advance completion of the COMLEX II
exams violates the Americans with Disabilities Act. (Id.
81.) In response to Plaintiff's internal
grievance petition, NYIT, on October 21, 2013, warned Plaintiff that if he did not receive the
requested accommodations from the NBOME and pass both the COMLEX II CE and COMLEX
II PE exams by January 31,2014, he would be dismissed from school. (Id.
By correspondence dated January 31,2014, NYIT's counsel advised Plaintiff that it
"might not" dismiss Plaintiff if it was provided with a copy of Plaintiffs OCR complaint that
was filed on January 29, 2014. (Id.
85.) Plaintiff's counsel spoke with NYIT's counsel that
same day and advised NYIT's counsel that the NBOME would require at least three months in
advance of a COMLEX II testing date to consider any accommodation requests and that scoring
for the COMLEX II PE exam would take an additional ten to twelve weeks. (.!4 ~ 87.)
Accordingly, it was impossible for Plaintiff to have his accommodation request considered and
decided by the NBOME, and take both COMLEX II exams and have them scored by the January
31, 2014 deadline imposed by NYIT. (Id.)
Plaintiff commenced the within action on June 27,2014, alleging disability
discrimination in violation of the Americans with Disabilities Act of 1990 (the "ADA"), 42
U.S.C. § 12101 et seq., and Section 504(a) of the Rehabilitation Act of 1973,29 U.S.C. § 701 et
seq., as well as a host of state law claims. Plaintiff now seeks to amend his Complaint as
follows: (1) to request injunctive relief pursuant to Title III of the ADA; (2) to add causes of
action for retaliation against Plainview Hospital pursuant to both the ADA and the Rehabilitation
Act; (3) to add a claim for tortious interference with contract against NYIT; and (4) to add a
cause of action pursuant to the New York City Human Rights Law against all Defendants.
Federal Rule of Civil Procedure 15 governs the amendment of pleadings and provides, in
pertinent part, that "a party may amend its pleading only with the opposing party's written
consent or the courts's leave. The court should freely give leave when justice so requires." Fed.
R. Civ. P. 15(a)(2). The decision to allow such leave is firmly within the discretion of the district
court. See Libertv Mut. Ins. Co. v. First Brighton Transp. Mgmt., No. 07 CV 715, 2008 U.S.
Dist. LEXIS 31791, at * 11-12 (E.D.N. Y. Apr. 16, 2008) (citing Zenith Radio Com. v. Hazeltine
Research. Inc., 401 U.S. 321,330 (1971)). Leave to amend is generally granted unless there
appears to be bad faith or unnecessary delay on the part of the movant, or permitting the
proposed amendment would be futile. See Foman v. Davis, 371 U.S. 178, 182 (1962).
"[T]he standard for futility with respect to a motion to amend under Rule 15 is identical
to the standard for a Rule 12(b)(6) motion to dismiss- namely, the court must determine whether
the allegations in the complaint state a claim upon which relief can be granted." Catholic
Diocese of Rockville Centre v. Inc. Vill. of Old Westburv, 09 Civ. 5195,2012 WL 1392365 at
*5 (E.D.N.Y. Apr. 23, 2012) (quoting Crippen v. Town of Hempstead, 07 Civ. 3478, 2009 WL
803117, at* 1 n. 1 (E.D.N.Y. Mar. 25, 2009)). In order to defeat a Rule 12(b)(6) motion, an
individual must plead enough facts to "state a claim to relief that is plausible on its face."
Ashcroft v. Iqbal, 556 U.S. 662,678 (2009) (quoting Bell At!. Com. v. Twombly, 550 U.S. 544,
570 (2007)). "The court must construe the facts alleged by the party proposing the amendment to
be true and view them in the most favorable light." Hartman v. County of Nassau, No. 04 CV
1784, 2008 U.S. Dist. LEXIS 34729, at *55 (E.D.N.Y. Apr. 28, 2008) (citing Narvarte v. Chase
Manhattan Bank, N.A., No. 96 CV 8133, 1998 U.S. Dist. LEXIS 15530, at *1 (S.D.N.Y. Oct. 1,
1998)). However, the court is not "bound to accept as true a legal conclusion couched as a
factual allegation." Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 570). A plaintiff must
offer "more than an unadorned, the-defendant-unlawfully-harmed-me-accusation." Iqbal, 556
U.S. at 678. The party opposing amendment bears the burden of demonstrating that leave to
amend would be prejudicial or futile. See Blaskiewicz v. County of Suffolk, 29 F. Supp. 2d 134,
137 (E.D.N.Y. 1998) (citation omitted).
Plaintiff's Proposed Requests for Injunctive Relief Pursuant to the ADA
Plaintiffs Proposed Amended Complaint seeks to add several requests for injunctive
relief in connection with his ADA claims, as follows: (1) a declaratory judgment that Defendants
violated the ADA; (2) an order enjoining Defendants from (a) discriminating against medical
students with disabilities; (b) failing to make reasonable accommodations necessary to afford a
disabled person an equal opportunity to complete his or her medical school program; (c) aiding,
abetting, inciting, compelling or coercing any violation of the ADA; (3) an order compelling
Defendants to (a) modify their policies, practices and procedures to comply with the ADA; (b)
train all management, administrators and staff about anti-discrimination laws, particularly with
respect to the rights of medical students with disabilities; (c) develop written procedures
regarding the proper treatment of medical students with disabilities; and (4) an order mandating
Plainview Hospital to, in coordination with NYIT, facilitate an accurate reporting of Plaintiff's
transcript for his surgical clerkship evaluation.' (Proposed Am. Compl. Wherefore Clause Nos.
21-23, 36.) Plainview Hospital opposes Plaintiff's request to amend on futility grounds,
asserting that Plaintiff does not have standing to seek the requested injunctive relief.
Title III of the ADA proscribes discrimination against disabled individuals in public
accommodations. See Powell v. Nat'! Bd. ofMed. Exam'rs, 364 F.3d 79, 85 (2d Cir. 2004). As
the Court of Appeals for the Second Circuit has made clear, "[a] private individual may only
obtain injunctive relief for violations of aright granted under Title III [of the ADA]; he cannot
recover damages." ld. at 86.
The Supreme Court has established specific standing requirements for plaintiffs seeking
injunctive relief. See Citv of Los Angeles v. Lyons, 461 U.S. 95 (1983); O'Shea v. Littleton, 414
Plaintiff's transcript reflects a "W(R)" for his surgical clerkship, indicating that he
withdrew and repeated it. Plaintiff seeks an order directing the Hospital and NYIT to amend his
transcript to reflect an accurate grade of"P" or pass. (Proposed Am. Compl. Wherefore Clause
U.S. 488 (1974). To establish standing to seek injunctive relief, a plaintiff "must show that he
'has sustained or is immediately in danger of sustaining some direct injury' as the result of the
challenged official conduct and the injury or threat of injury must be both 'real and immediate,'
not 'conjectural' or 'hypothetical."' Lyons, 461 U.S. at 101-02 (citations omitted). "Past
exposure to illegal conduct does not in itself show a present case or controversy regarding
injunctive relief ... if unaccompanied by any continuing, present adverse effects."4 O'Shea, 414
U.S. at 495-96. More specifically, in the ADA context, a plaintiff seeking to establish standing
for injunctive relief"must not merely allege past injury, but also a risk of future harm." Access 4
AIL Inc. v. Trump Int'l Hotel and Tower Condo., 458 F. Supp. 2d 160, 167 (S.D.N.Y. 2006).
Plaintiff cannot meet the requirements set forth above to establish the necessary standing
to pursue his proposed requests for injunctive relief. As alleged in the Proposed Amended
Complaint, Plaintiff has satisfied all of his requirements for graduation from NYIT and for
completion of his surgical clerkship rotation at Plainview Hospital. Accordingly, Plaintiff cannot
establish any future harm that he may suffer as a result of any allegedly discriminatory policies
and procedures implemented by Defendants since there is no need for Plaintiff to return to NYIT
or Plainview Hospital as a medical student or to take any more examinations administered by the
NBOME. See Access 4 All, 458 F. Supp. 2d at 168 ("[T]he failure to allege ... an intention or
desire to return to the place where a plaintiff encountered an ADA violation, or merely alleging
an intention to return 'some day' merits dismissal of the claim [for injunctive relief].").
Declaratory judgment is similarly "inappropriate when it is sought to adjudicate past
acts." Scheinerv. ACT Inc., No. 10-CV-0096, 2013 U.S. Dist. LEXIS 25204, at *10 (E.D.N.Y.
Feb. 24, 2013) (citing SEC v. Credit Bancorn. Ltd., 738 F. Supp. 2d 376, 388-89 (S.D.N.Y.
All of the discrimination alleged in the Proposed Amended Complaint is based on past
events that occurred while Plaintiff was enrolled in NYIT and participating in his surgical
clerkship at Plainview Hospital. Since Plaintiff fails to allege how he will suffer any future harm
absent injunctive relief, his requests for injunctive relief in connection with his ADA claims are
In addition, Plaintiff's requests for injunctive relief are moot. A case is moot where "the
parties lack a legally cognizable interest in the outcome" of the action such that the plaintiff no
longer has a "personal stake" in the action. Fox v. Bd. of Trustees of State Univ. ofNY, 42 F.3d
135, 140 (2d Cir. 1994). Mootness results where "interim relief or events have eradicated the
effects of the defendant's act or omission, and there is no reasonable expectation that the alleged
violation will recur." Irish Lesbian and Gay Org. v. Guiliani, 143 F.3d 638,647 (2d Cir. 1998).
The Second Circuit "has consistently held that students' declaratory and injunctive claims
against the universities that they attend are mooted by the graduation of the students." Fox, 42
F.3d at 140 (citing Cook v. Colgate Univ., 992 F.2d 17, 19 (2d Cir. 1993); see also Briefv.
Albert Einstein CoiL ofMed., No. 10-2580-cv, 423 Fed. Appx. 88, 90 (2d Cir. June I, 2011)
("As a preliminary matter, because Brief has now graduated from medical school, received his
M.D., and is participating in (or has already completed) a pediatrics residency program, his claim
for injunctive relief is moot."). Since Plaintiff has completed all of his course and clinical
clerkship requirements necessary for graduation, (Proposed Am. Compl.
49), injunctive relief
under the ADA cannot provide Plaintiff with any legally cognizable benefits at this point.
For the foregoing reasons, Plaintiffs motion to amend his Complaint with respect to the
requests for injunctive relief pursuant to Title III of the ADA is denied as futile.
Plaintiff's Proposed Discrimination and Retaliation Claims
Plaintiff next seeks to amend his Complaint to add the Hospital to his Fourth Cause of
Action for discrimination in violation of Section 504(a) of the Rehabilitation Act, (Proposed Am.
127-36), and to add a retaliation claim against all Defendants pursuant to the
109-26.) The Hospital opposes the amendment on the grounds of
futility. NYIT does not address this cause of action in their opposition.
"Both the Rehabilitation Act and the ADA protect disabled persons from discrimination
in the provision of public services." Weixel v. Bd. ofEduc., 287 F.3d 138, 146 (2d Cir. 2002);
see also Powell v. Nat'! Bd. ofMed. Exam'rs, 364 F.3d 79, 85 (2d Cir. 2004). Since the
standards for discrimination and retaliation under the ADA and the Rehabilitation Act are, in
most cases, the same, the Second Circuit has directed that the claims may be considered together.
See Powell, 364 F.3d at 85 (citing Henrietta D. v. Bloomberg, 331 F.3d 261,272 (2d Cir. 2003)).
"At this very early stage of the litigation," Plaintiffs disability discrimination
claim is sufficient if the complaint alleges that "(I) [Plaintiff] has a disability for purposes of
Section 504/ADA, (2) [he] is otherwise qualified for the benefit that has been denied, and (3)
[he] has been denied the benefit by reason of his disability." Weixel, 287 F.3d at 146-47 (citing
Doe v. Pfrommer, 148 F.3d 73,82 (2d Cir. 1998)). The only element in dispute appears to be the
third- that Plaintiff was denied the benefit by reason of his disability.
Construing the facts alleged in the Proposed Amended Complaint liberally, and in the
light most favorable to Plaintiff- as the Court must at this juncture -the Proposed Amended
Complaint states a claim for disability discrimination under the Rehabilitation Act, such that
permitting Plaintiff to amend his Complaint would not be futile. As the Proposed Amended
Complaint sets forth, in June 2011, Plaintiff met with Dr. Rachlin, the Hospital's Director of
Medical Education, who disparaged Plaintiff's speech patterns and advised Plaintiff that he
planned to speak to the Associate Dean of Clinical Education at NYIT, Dr. Jeger, about Plaintifs
speech. (Proposed Am. Compl.
23-25.) On July 1, 2011, during a meeting with Drs. Rachlin
and Jeger, Plaintiff was informed that, due to his perceived disabilities, he would have problems
continuing his surgical rotation and was presented with two options - agree to a voluntary
medical leave of absence or fail the surgical clerkship. (Id.
26.) While these allegations may
not be enough for Plaintiff to ultimately prevail against the Hospital, at this early stage, they are
sufficient to state a claim for disability discrimination.
Accordingly, Plaintiff's motion to amend to add a cause of action against the Hospital for
disability discrimination pursuant to the Rehabilitation Act is granted.
With respect to retaliation under the ADA or the Rehabilitation Act, a plaintiff
must establish the following elements: (1) Plaintiff was "engaged in protected activity;" (2) "the
alleged retaliator knew that [P]laintiff was involved in protected activity;" (3) "an adverse
decision or course of action was taken against [P]laintiff;" and (4) "a causal connection exists
between the protected activity and the adverse action." Weixel, 287 F.3d at 148; see also
Roggenbach v. Touro Coli. of Osteopathic Med., 7 F. Supp. 3d 338, 346 (S.D.N.Y. 2014).
While "protected activity" may "refer to action taken to protest or oppose statutorily prohibited
discrimination," Cruz v. Coach Stores. Inc., 202 F.3d 560, 566 (2d Cir. 2000), it can also include
requesting a reasonable accommodation of a plaintiffs disability. See Weixel, 287 F.3d at 149
(citing Muller v. Costello, 187 F.3d 298,311 (2d Cir. 1999).
As with Plaintiffs discrimination claim, a liberal construction of the Proposed Amended
Complaint finds that Plaintiff has stated enough, at this juncture, to state a claim for retaliation.
Whether Plaintiff will ultimately prevail remains to be seen; however, taking the facts in the light
most favorable to Plaintiff, the Court fmds that permitting Plaintiff to amend his Complaint to
include a claim for retaliation pursuant to the Rehabilitation Act would not be futile.
Accordingly, Plaintiffs motion to amend with respect to this cause of action is granted.'
Plaintiff's Proposed NYCHRL Claim
Next, Plaintiff seeks to add a cause of action against all Defendants for disability
discrimination in violation of the New York City Human Rights Law, N.Y.C. Admin. Code§ 8101
(Proposed Am. Compl. ~~ 256-67.) Both the Hospital and NYIT oppose Plaintiff's
motion on futility grounds.
Title 8 of the New York City Administrative Code makes it unlawful for an owner,
lessee, or operator of any place of public accommodation to discriminate "because of the actual
or perceived ... disability ... of any person, directly or indirectly .... " N.Y.C. Admin. Code§
8-107(4)(a). To state a claim for relief under the NYCHRL, Plaintiff"must allege that the
Plaintiff also seeks to add the Hospital to his Fifth Cause of Action for violation of the
implementing regulations of the Rehabilitation Act, 45 C.F.R. § 88.4(b)(l)(v). (Proposed Am.
Compl. ~~ 137-40.) As the Hospital points out, "these regulations provide no more protection
than the Rehabilitation Act itself." Goonewardena v. N. Shore Long Island Jewish Hosp., No.
11-CV-2456, 2014 U.S. Dist. LEXIS 41659, at *31 (E.D.N.Y. Mar. 26, 2014). Nor does there
appear to be a private right of action under these regulations independent of the Rehabilitation
Act. Tellingly, Plaintiff does not even address this cause of action in his motion papers in reply
to the Hospital's opposition to the within motion. Accordingly, Plaintiffs motion to amend his
Complaint with respect to the Fifth Cause of Action is denied as futile.
Defendants discriminated against [him] 'within the boundaries ofNew York City."' Roblex v.
Cox & Co., Inc., 841 F. Supp. 2d 615,623 (E.D.N.Y. 2012) (quoting Shah v. Wilco Sys .. Inc.,
806 N.Y.S.2d 553, 558 (I" Dep't 2005)) (additional citations omitted); see also Fried v. LVI
Servs .. Inc., No. 10 Civ. 9308,2011 WL 4633985, at *12 (S.D.N.Y. Oct. 4, 2011) ("The
NYCHRL expressly limits the applicability of its protections to acts that occur within the
boundaries of New York City."). "[T]o determine the location of the discrimination under the
NYCHRL, courts look to the location of the impact of the offensive conduct." Robles, 841 F.
Supp. 2d at 623 (quoting Curto v. Med. World Commc'ns. Inc., 388 F. Supp. 2d 101, 109
(E.D.N.Y. 2005); see also Fried, 2011 WL 4633985, at *12 ("Courts have looked to the location
of the impact of the adverse action on the plaintiff to determine the location of the
Plaintiff bases his NYCHRL claim on conduct that he asserts "occurred in New York
City, or had an impact in New York City," including: (1) various communications between
Plaintiff and his attorney and representatives ofNYIT, who worked out ofNYIT's New York
City campus; (2) various communications between NYIT and Hospital personnel; and (3)
Plaintiff's completion of his surgical clerkship at LIJ's Forest Hills facility, located in Queens,
New York. (Proposed Am. Compl. ~~ 260.) According to Plaintiff, had the Hospital not
discriminated against him, he would have completed his surgical clerkship in Nassau County,
rather than New York City.
The allegations set forth in Plaintiffs Proposed Amended Complaint concerning various
communications with Defendants in New York City are insufficient to support a claim pursuant
to the NYCHRL. "[I]t is the impact of the adverse action, and not the location where acts
leading to the discrimination occur that gives rise to a claim under the NYCHRL." Robles, 841
F. Supp. 2d at 623 (citation omitted). Indeed, the very argument Plaintiff is attempting to
advance here- that a plaintiff may invoke the NYCHRL because a discriminatory decision is
made in New York City- has been explicitly rejected by numerous district courts that have
considered it. See. e.g., Robles, 841 F. Supp. 2d at 625 (finding that the NYCHRL did not apply
since Plaintiff was employed outside of New York City, even though "the decision to terminate
Plaintiff was made in New York City"); Fried, 2011 WL 4633985, at *13 (rejecting Plaintiff's
argument that the NYCHRL should apply because Defendant was headquartered in New York
City, the decision to terminate him was made in New York City and Plaintiff attending meetings
and made regular phone calls to Defendant's offices in New York City); Wahlstrom v. MetroNorth Commuter R.R. Co., 89 F. Supp. 2d 506,527 (S.D.N.Y. 2000) ("[T]he NYCHRL only
applies where the actual impact of the discriminatory conduct or decision is felt within the five
boroughs, even if a discriminatory decision is made by [a] New York City office.").
The fact that Plaintiff eventually completed his surgical clerkship within the boundaries
ofNew York City, however, gives the Court pause. While all of the allegedly discriminatory
conduct occurred and was communicated to Plaintiff in Nassau County, it is plausible that
Plaintiff felt the "impact" of that discrimination within the boundaries ofNew York City when
he was compelled to complete his surgical rotation at a hospital in Queens, rather than his
original choice of hospital in Plainview. See Welch v. UPS, 871 F. Supp. 2d 164, 180 (E.D.N.Y.
2012). Construing the facts set forth in the Proposed Amended Complaint liberally, the Court
finds that Plaintiff has stated enough, at this point, to allow a claim under the NYCHRL to
proceed. Accordingly, Plaintiff's motion to amend to add a claim pursuant to the NYCHRL is
Plaintiffs Proposed Tortious Interference with Contract Claim
Finally, Plaintiffs motion to amend seeks to add a claim for tortious interference with
contract against NYIT. NYIT opposes the motion on futility grounds.
To state a claim of tortious interference with contract under New York law, Plaintiff must
show "the existence of a valid contract between the plaintiff and a third party, defendant's
knowledge of that contract, defendant's intentional procurement of the third-party's breach of the
contract without justification, actual breach of the contract, and damages resulting therefrom."
Semper v. N.Y. Methodist Hosp., 786 F. Supp. 2d 566, 583 (E.D.N.Y. 2011) (quoting Lama
Holding Co. v. Smith Barney Inc., 88 N.Y.2d 413 (1996)). As a rule, "conclusory allegations of
interference with an unspecified contract are insufficient to plead tortious interference." Lesesne
v. Brimecome, 918 F. Supp. 2d 221,227 (E.D.N.Y. 2013) (collecting cases); 57'" St. Arts, LLC
v. Calvary Baptist Church, 861 N.Y.S.2d 946,946 (1" Dep't 2008) ("Conclusory assertions of
wrongful, intentional, malicious or improper actions, for personal profit or constituting
independent torts, are inadequate to spell out a claim ... for tortious interference with
Here, Plaintiff alleges that he had a contract with the NBOME, which was the "Bulletin
of Information" provided to all students who applied to take certain examinations administered
by the NBOME. (Proposed Am. Compl. ~ 234.) Plaintiff further alleges that NYIT had
knowledge of this contract and "intentionally procured NBOME' s breach of the contract6
without cause or justification, and through wrongful means." (!d. '1['1[234-35.) Such vague,
conclusory allegations fail to state a claim for tortious interference with contract.
Specifically, to establish NYIT's intentional procurement of a breach of contract, Plaintiff
"must show that there would not have been a breach but for the activities of the defendant."
Watts v. Jackson Hewitt Tax Serv. Inc., 675 F. Supp. 2d 274,282 (E.D.N.Y. 2009) (quoting
Innovative Networks. Inc. v. Young, 978 F. Supp. 2d 167, 180 (S.D.N.Y. 1997)). Absent from
the Proposed Amended Complaint are any factual allegations detailing "how [NYIT']s activities
were the 'but for' cause of any contractual breaches." Watts, 675 F. Supp. 2d at 282 (citing
Innovative Networks, 978 F. Supp. 2d at 180). "[T]he sheer possibility that a defendant has
acted unlawfully is insufficient as a matter of law" to state a claim for tortious interference with
contract. Watts, 675 F. Supp. 2d at 180 (citation and quotation marks omitted).
Based on the foregoing, it would be futile to permit Plaintiff to amend his Complaint to
add a claim for tortious interference with contract. Plaintiffs motion with respect to this cause
of action is accordingly denied.
For the foregoing reasons, Plaintiffs motion to amend his Complaint is granted in part
and denied in part. Plaintiff is directed to file his Amended Complaint in accordance with the
rulings made herein within five (5) days.
The NBOME is alleged to have breached its contract with Plaintiff by failing to provide
him with the reasonable testing accommodations he requested. (Proposed Am. Compl. '1[236.)
In addition, the pending motions to dismiss filed by Defendants NBOME and Plainview
Hospital are denied as moot since they are directed to the original Complaint, which is no longer
the operative pleading in this action. Defendants are directed to advise the Court, in writing,
within ten (1 0) days, whether they intend to move to dismiss the Amended Complaint or, since
discovery is currently ongoing and set to close in approximately five months, whether they will
instead move for summary judgment upon the close of discovery.
The Clerk of the Court is directed to terminate the motions pending at Docket Entries 42,
44, and 49.
Dated: Central Islip, New York
July 2B, 2015
s/ Leonard D. Wexler
VLEONARh D. WEXLER
United States District Judge
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