Trisvan v. The New School Center for Media

Filing 7

ORDER adopting Report and Recommendations re 6 Report and Recommendations: The Court hereby ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No. 6) is ADOPTED in its entirety for the reasons set forth herein; and t he Court further ORDERS that the Plaintiff's complaint (Dkt. No. 1 ) is DISMISSED WITH LEAVE TO AMEND claims under the ADA, Truth in Lending Act, Title VI of the Civil Rights Act of 1964, New York General Business Law sections 349 and 350, and Rule 901 of the New York CPLR; and the Court further ORDERS that Plaintiff shall file an amended complaint within THIRTY (30) DAYS of the filing date of this Order; and the Court further ORDERS that if Plaintiff fails to file an amended complaint wit hin THIRTY (30) DAYS of this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case without further order of this Court.Signed by U.S. District Judge Mae A. D'Agostino on 8/30/2024. (Copy served via regular mail)(ham)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
____________________________________________
JOHN TRISVAN,
Plaintiff,
vs.

1:24-CV-755
(MAD/DJS)

THE NEW SCHOOL CENTER FOR MEDIA,
Defendant.
____________________________________________
APPEARANCES:

OF COUNSEL:

JOHN TRISVAN
378 Monroe Street
Brooklyn, New York 11221
Plaintiff, pro se
Mae A. D'Agostino, U.S. District Judge:
ORDER
On June 7, 2024, pro se Plaintiff John Trisvan ("Plaintiff") filed a complaint asserting
claims against the New School Center for Media ("New School"), see Dkt. No. 1, and a motion
for leave to proceed in forma pauperis ("IFP"). See Dkt. No. 2. On August 12, 2024, Magistrate
Judge Stewart issued an Order granting Plaintiff leave to proceed IFP. See Dkt. No. 5. The same
day, Magistrate Judge Stewart issued a Report-Recommendation and Order recommending that
Plaintiff's complaint be dismissed with leave to amend pursuant to 28 U.S.C. § 1915(e)(2)(B).
See Dkt. No. 6.
Plaintiff has not filed any objections to the Report-Recommendation and Order. When a
party declines to file an objection, the court reviews a recommendation for clear error. See
O'Diah v. Mawhir, No. 9:08-CV-322, 2011 WL 933846, *1 (N.D.N.Y. Mar. 16, 2011) (citations

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and footnote omitted); see also McAllan v. Von Essen, 517 F. Supp. 2d 672, 679 (S.D.N.Y. 2007).
After the appropriate review, "the court may accept, reject or modify, in whole or in part, the
findings or recommendations made by the magistrate judge." 28 U.S.C. § 636(b)(1). Because
Plaintiff has not filed an objection, the Court will review the recommendation for clear error.
"[I]n a pro se case, the court must view the submissions by a more lenient standard than
that accorded to 'formal pleadings drafted by lawyers.'" Govan v. Campbell, 289 F. Supp. 2d 289,
295 (N.D.N.Y. 2007) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)) (other citations
omitted). The Second Circuit has stated that the court is obligated to "make reasonable
allowances to protect pro se litigants" from inadvertently forfeiting legal rights merely "because
of their lack of legal training." Govan, 289 F. Supp. 2d at 295 (quoting Traguth v. Zuck, 710 F.
2d 90, 95 (2d Cir. 1983)).
The Court finds no clear error in Magistrate Judge Stewart's Report-Recommendation and
Order. Magistrate Judge Stewart correctly determined that Plaintiff failed to set forth a
cognizable federal cause of action under either 20 U.S.C. § 1097 or 18 U.S.C. § 371, because
neither statute allows for a private right of action. See Dkt. No. 6 at 4; see also Michelson v.
Merrill Lynch, Pierce, Fenner & Smith, Inc., 669 F. Supp. 1244, 1254 (S.D.N.Y. 1987) (noting
that "courts have held that a violation of the federal conspiracy statute, 18 U.S.C. § 371, does not
give rise to a civil cause of action") (citations omitted). Neither has Plaintiff alleged that New
School had a fiduciary relationship with him, or that he is a bankruptcy trustee, as required to
bring a claim under section 720 of the New York Business Corporation Law. See Sec. Inv. Prot.
Corp. v. Stratton Oakmont, Inc., 234 B.R. 293, 329 (Bankr. S.D.N.Y. 1999) (citing Scherling v.
Rem (In re Princeton Industries, Inc.), 39 B.R. 140, 142 (Bankr. S.D.N.Y. 1984)) ("Nonetheless,
§ 720 of the BCL, which explicitly permits suit by a bankruptcy trustee [ ] permits recovery for

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breach of fiduciary duty obligations by corporate officers and directors"). The Court further
agrees that Plaintiff has failed to state a claim for relief under 15 U.S.C. § 41 or New York
Education Law section 6401, because neither statute confers rights on Plaintiff. See Dkt. No. 6 at
4-5.
The Court finds no clear error in Magistrate Judge Stewart's conclusion that, although
leave to amend would ordinarily be appropriate, there is no possibility that an amended complaint
could remedy the defects with respect to Plaintiff's claims under 20 U.S.C. § 1097, 18 U.S.C. §
371, section 720 of the New York Business Corporation Law, 15 U.S.C. § 41, or New York
Education Law section 6401. See Dkt. No. 6 at 11-13. Accordingly, these claims are dismissed
with prejudice. See Ruffolo v. Oppenheimer & Co., 987 F.2d 129, 131 (2d Cir. 1993) ("Where it
appears that granting leave to amend is unlikely to be productive, . . . it is not an abuse of
discretion to deny leave to amend").
The Court further agrees that Plaintiff has failed to state a claim for relief under Title VI of
the Civil Rights Act of 1964 because he does not mention his "race, color, or national origin in the
Complaint, let alone any intentional discrimination based on those characteristics." Dkt. No. 6 at
6; see also Manolov v. Borough of Manhattan Cmty. Coll., 952 F. Supp. 2d 522, 531 (S.D.N.Y.
2013) ("To state a claim under Title VI, a plaintiff must allege, inter alia, (1) that the defendant
discriminated against him on the basis of race; (2) that that discrimination was intentional; and (3)
that discrimination was a substantial and motivating factor for the defendant's actions").
Plaintiff's complaint states that he "informed Defendant that he suffered a disability in
which he would be afforded special accommodation those of which he was assured he would be
provided, all of which was denied to him violating [ ] rights and privileges under the ADA[.]"
Dkt. No. 1 at 4-5. The Court agrees with Magistrate Judge Stewart that Plaintiff has not set forth

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any facts supporting his allegation that he is disabled or the nature of his disability. See Dkt. No.
6 at 7-8; see also Sista v. CDC Ixis N. Am., Inc., 445 F.3d 161, 169 (2d Cir. 2006) (quotation
omitted) ("To establish a prima facie case under the ADA, a plaintiff must show by a
preponderance of the evidence that: '. . . (2) he was disabled within the meaning of the ADA'").
The Court further agrees with Magistrate Judge Stewart's conclusion that Plaintiff has not
alleged facts sufficient to support his Truth in Lending Act cause of action. See Dkt. No. 6 at 8.
Plaintiff states that he applied for tuition fees "through Defendant's assistance" but does not
otherwise set forth facts claiming that Defendant is a creditor. Dkt. No. 1 at 3. Accordingly,
Plaintiff has failed to articulate a basis of any claim under the Truth in Lending Act. See Mauro
v. Countrywide Home Loans, Inc., 727 F. Supp. 2d 145, 157 (E.D.N.Y. 2010) ("TILA's disclosure
obligations apply only to 'creditors'").
The Court agrees with Magistrate Judge Stewart that the complaint does not allege any
deceptive or misleading acts Defendant engaged in, and therefore Plaintiff has failed to state a
claim under New York General Business Law sections 349 and 350. See Dkt. No. 6 at 8-9. The
Court further agrees with Magistrate Judge Stewart that Plaintiff mentions Rule 901 of the New
York CPLR but has not stated a substantive state law claim in his complaint and therefore has not
stated any plausible basis for a class action. See id. at 9.
Finally, the Court agrees that, in light of his pro se status, Plaintiff should be granted an
opportunity to amend the complaint with respect to his claims under the ADA, Truth in Lending
Act, Title VI of the Civil Rights Act of 1964, New York General Business Law sections 349 and
350, and Rule 901 of the New York CPLR. See Nielsen v. Rabin, 746 F.3d 58, 62 (2d Cir. 2014)
("'Generally, leave to amend should be freely given, and a pro se litigant in particular should be

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afforded every reasonable opportunity to demonstrate that he has a valid claim'") (quotation
omitted).

After carefully reviewing the Report-Recommendation and Order, the entire record in this
matter, and the applicable law, the Court hereby
ORDERS that Magistrate Judge Stewart's Report-Recommendation and Order (Dkt. No.
6) is ADOPTED in its entirety for the reasons set forth herein; and the Court further
ORDERS that the Plaintiff's complaint (Dkt. No. 1) is DISMISSED WITH LEAVE TO
AMEND claims under the ADA, Truth in Lending Act, Title VI of the Civil Rights Act of
1964, New York General Business Law sections 349 and 350, and Rule 901 of the New York
CPLR; and the Court further
ORDERS that Plaintiff shall file an amended complaint within THIRTY (30) DAYS of
the filing date of this Order; and the Court further
ORDERS that if Plaintiff fails to file an amended complaint within THIRTY (30) DAYS
of this Order, the Clerk of the Court shall enter judgment in Defendant's favor and close this case
without further order of this Court; and the Court further
ORDERS that the Clerk of the Court shall serve a copy of this Order on the parties in
accordance with the Local Rules.
IT IS SO ORDERED.
Dated: August 30, 2024
Albany, New York

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