Boka v. Shafer et al

Filing 52

OPINION. Based on the conclusions set forth above, Defendants' motion to dismiss the Amended Complaint is granted, and the motions of the Plaintiff for a stay, conversion to summary judgment and fees are denied. This opinion terminates the above entitled action in addition to ECF Nos. 9, 17, 28. It is so ordered. re: 28 MOTION to Stay re: 17 MOTION to Dismiss Amended Complaint filed by Zoltan Boka, 9 FIRST LETTER MOTION for Extension of Time to File Answer addressed t o Judge Robert W. Sweet from Christopher Coulston dated December 15, 2015. Document filed by James B. Milliken, Katherine Raymond, The City University of New York. (Signed by Judge Robert W. Sweet on 7/11/2016) (rjm) (Main Document 52 replaced on 7/13/2016) (rjm).

USDCSDNY

DOCUMENT
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
------------------~--------------------x

ELECTRONICALLY FILED
DOC#:
DATE FILED:

ZOLTAN BOKA,
Plaintiff,

15 Civ. 6629

-against-

OPINION

DR. VALERIE SHAFER, ET AL.,
Defendants.

---------------------------------------x
A P P E A R A N C E S:

Pro Se
ZOLTAN BOKA
3564 89TH Street, Apt. 4C
Queens, NY 11372

Attorneys for Defendants
ERIC T. SCHNEIDERMAN
Attorney General of the State of New York
1 2 0 Broadway, 24 th Floor
New York, NY 10271
By:
Christopher V. Coulston, Esq.

Sweet, D. J.

Defendants City University of New York ("CUNY"); Katherine
Raymond in her official and individual capacity; James B.
Milliken in his offic ial and individual capacity; Sharon Lerner
in her official and individual capacity; Douglas Whalen in his
off icial capacity; William Kelly in his official capacity;
Matthew Schoengood in his official capacity; and Chase Robinson
in his official capacity (the "Individual Defendants," and, with
CUNY, the "Defendants") have moved pursuant to Rules 12(b) (1)
and 12(b) (6) of the Federal Rules of Civil Procedure to dismiss
the October 23, 2015 amended complaint (the "Amended Complaint")
of plaintiff Zoltan Baka, pro se ("Baka" or the "Plaintiff").
The Plaintiff has moved for a stay, to convert the Defendants'
motion for summary judgment, and for fees in connection with
service. Based on the conclusions set forth below, the motion of
the Defendants to dismiss the Amended Complaint is granted, and
the motions of the Plaintiff for a stay, conversion to summary
judgment and fees are denied.

1

I.

Prior Proceedings

Boka is a former doctoral student at the Graduate School
and University Center of CUNY (the " Graduate Center " ) . I n August
2012 , Plaintiff was dismi ssed from the Speech-Language - Hearing
Sciences ( " SLHS " ) program after failing the "First Examinat i on "
the second t i me . See Arn . Comp l.

~

28 and Ex. 18 . Under t he

Graduate Center ' s policies , failing the First Examination twice
leads to immediate termination from t h e program . Id ., Ex . 18.
The Pl aintiff unsuccessfu l ly challenged th i s te r mination in an
Article 78 proceeding , where he was represented by counsel .
Zoltan Boka v The City University of New York. et al . , Supreme
Court , New York County , Index No. 101346/2013. There , the Court
addressed many of the issues raised in Plaintiff ' s Amended
Complaint , including whether Pl aintiff had sought an
accommodation spec i fical l y for his First Examinat i on . See i d .,
Ex . 26. The Court concluded that he had not.

Plaintiff ' s Complaint , filed August 21 , 20 1 5 , a l leges that
he was not offered a reasonable accommodation to pass the First
Examination and was wrongfully expe ll ed from the SLHS program
after requesting one and contains th i rteen separate causes of
the following f ede r a l and state common law claims . His Amended
Comp l aint was filed October 23 , 20 1 5 .
2

•

Rehabilitation Act

(Counts 1 and 2) ;

•

U. S . C. § 1983 (Counts 3 and 4) brought against
Defendants Marton and Lerner ;
Fraud under New York common law (Counts 5-8) ;
14th Amendment due process cla i ms

(Counts 9- 11) ;

and
Breach of contract under New York common law
(Counts 12-13) .

Defendants i nclude CUNY , as well as the foll ow ing present and
former CUNY employees : former Graduate Center President William
Ke l ly ; Graduate Center President Chase Robinson; CUNY
Chance ll or , James B . Mi ll iken ; Graduate Center professors , Dr .
Valerie Shafer , Dr . Lorraine Obler , Dr. Douglas Wha l en , and Dr .
Klara Marton ; CUNY counsel , Katherine Raymond ; Director of
Student Affairs at the Graduate Center , Sharon and Vice
President for Student Affairs at the Graduate Center , Matthew
Schoengood.

The Amended Complaint alleges the relationship of the
parties. The Plaintiff enrolled i n the SLHS Doctoral Program at
the CUNY Graduate Center in 2008. Arn . Compl ., p . 2. A
3

requirement o f the SLHS program is that each student is required
to write a " First Examination ," a paper pr oposing a research
project that the student designs . Id ., Ex . 25 ,

~

6 . A student ' s

academic advisor is permitted to give the student feedback on
two drafts of the First Examinati o n prior to submitting it . Id .
The student may also resubmi t the exam once if he or she does
not receive a passing grade on the first submission. Id .,

~

7.

The SLHS Handbook states that " the first draft of the exam must
be submi tted to the student ' s advisor by January 31 of the
student ' s second year . Then the 1st exam process must be
finished by the end of that semester . Students may not continue
in the program after completing 45 graduate credits if they ha ve
n o t passed the First Examination. " Ver. Pet. , Ex. 38 , Ex . A to
the Declaration of Christopher Coulston , dated January 29, 20 16
( " Coulston Deel. " ) . In April 2012, near the end of his third
year as a student in the program , Defendant Marton informed
Plaintiff that he would not be allowed to register for the Fall
2012 semester without submitting and passing his First
Examination . Am. Compl ., Ex . 25,

~

14 . On May 8 , 2012 , Plaintiff

submitted a First Examination research paper for evaluation, and
received a failing grade. Id.,

~~

15-16. On July 2, 2012 , after

recei v ing written feedback fr om the t hr ee professors who
r ev iewed his first attempt , Plaintiff submitted a revised
Examination paper. Id .,

~

16 - 17; Ve r . Pet. ,
4

~

23 . On August 17 ,

2012, Plaintiff was notified that he had received a failing
grade on his resubmission of the First Examination. Ver. Pet.,
~

38. On August 23 , 2012 , Plaint iff requested a leave of

absence. Ver. Pet,

62. Under the SLHS program's policies, a

~

student is only permitted to retake the exam one time, and on
August 24 , 20 12, after receiving his request for a leave of
absence , Defendant Marton informed Plaintiff that his
matriculation in the program was terminated. Ver. Pet., Ex. 38 ;
Am. Compl ., Ex. 25 ,

~

22 .

Plaintiff has al l eged that the actual motivation for his
termination was discrimination based on his disability and
retaliation for his request for an accommodation. Plaintiff
suffered a traumatic brain injury in infancy that has led to
various neurological impairments. Am. Compl., p. 1. In February
2012 , after having difficulties with a statistics examination,
Defendant Lerner recommended that Pl aintiff receive a
neuropsychological evaluation to determine what accommodations
might be appropriate f o r him. See Id., p. 2 , Ex. 2 and 24,

~~

11. On June 18, 2012 , Defendant Lerner received a
Neuropsychological Assessment prepared by Dr. Sarah Bronson.
Id., p. 2 , Exs. 2 and 3. The Assessment recommended three
accommodations : 1) organizational assistance from professors
with writing papers; 2) take home examinations in all courses ;
5

9-

and 3) a note taker . Id . , Ex . 2. On July 5 , 2012, three days
after re - submitting his First Examination , Plaintiff and
Defendant Lerner met to discuss Dr . Bronson ' s recommendations.
Id ., p . 2 , Ex . 24 ,

~

14 . In her aff i rmation submitted in the

subsequent Article 78 proceeding , Defendant Lerner explained
that during this meeting she advised Plaintiff about how they
could implement these recommendations , particularly with respect
to writing assignments. Defendant Lerner stated in her
affirmation that she agreed to assist Plaintiff in locating a
writing coach and during discussions with his professors on
receiving additional feedback and reviewing mode l examp l es prior
to submitting h i s research papers . Id. Defendant Lerner stated
in her affirmation that these accommodations were prospective
accommodations for Plaintiff ' s next semester . Id .,

~

15 .

On October 2 , 2013 , following his termi nation from the
program , and after appealing his termination through the
Graduate Center ' s appeals process , Ver . Pet .

~~

68-72 , Plaintiff

commenced an Article 78 proceeding. In that proceeding,
Plaintiff alleged that he had been dismissed from the SLHS
pr o gram in violation of the ADA , the Rehabil i tation Act , the New
York State Human Rights Law and the New York City Human Rights
Law . Ver. Pe t .,

~

1 . As in this litigation , Plaintiff named

Defendants Robinson , Lerner , Marton , Kelly , and Schoengood as
6

Respondents. In the Article 78 proceeding, as here,

Plaintiff

alleged that Defendants had "ignor[ed] a requ est for reasonable
accommodations" and retaliated against Plaintiff by terminating
him from the SHLS Program after receiving his request for an
accommodation. Ver . Pet . ,

~~

73 - 75. Plaintiff also asserted that

Defendants did n o t comply with the 2009-2010 student handbook an allegation that appears again in Plaintiff's Thirteenth cause
of action in this litigation. Ver . Pet .

~

76; Am . Compl.

~

159.

On April 1, 20 14 , a hearing was held before Judge Eileen
Rakower to address Plaintiff's petition. Judge Rakower concluded
that it was not arbitrary and capricious for CUNY to terminate
Plaintiff from the program. Am . Compl., Ex . 26 , 15:16-7. Judge
Rakower explained that Plaintiff had never requested an
accommodation for his First Examination (Id. , 9:22-3) and that
CUNY was fully prepared to accommodate him in the semester
beginning in Fall 2012

(Id . , 12:4-6) . Plaintiff did not appeal

this decision.

The instant motions were marked fully submitted on March
2 4, and May 19 , 2016.

7

II.

Standard of Review

Summary judgment is appropriate only wh ere "there i s no
genuine issue as to any material fact and

the moving party

is entitled to a judgment as a matter of l aw ."

Fed. R. Civ. P.

56 (c) .

"[T]he substantive law will identify which facts are

material." Anderson v . Liberty Lobby,

Inc., 477 U.S. 242 , 248

( 198 6)

A dispute is " genuine " if "the evidence is such that a
reasonable jury could return a verdict for the nonmoving party ."
Id.

The relevant inquiry on application for summary judgment is

" whether the evidence presents a suff i cient disagreement to
require submission to a jury or whether it is so one-sided that
one party must prevail as a matter of l aw."

Id. at 251-52.

A

court is not charged with weighing the evidence and determining
its truth, but with determining whether there is a genuine issue
for trial .

Westinghouse Elec. Corp . v . N.Y. City Trans i t Auth .,

735 F . Supp . 1205, 1212 (S .D.N. Y. 1990)

(quoting Anderson , 477

U.S. at 249) . "[T]he mere existence of some alleged factua l
dispute between the parties will not def eat an otherwise
properly supported motion for summary judgment; the requirement
is that there be no genuine issue of material fact ." Anderson ,
477 U.S . at 247 - 48

(emphasis in original)
8

Plaintiff's prose status alters the interpretat i o n of
Plaintiff's submissions , but not the burdens of law on either
party. Pro se submis s i ons are held "t o less stringent standards
than forma l pleadings drafter by l awye r s " and must be read to
"raise the strongest arguments they suggest ." Olle v . Co lumbia
Univ ., 332 F . Supp . 2d 599 , 607
App'x 383

(2d Cir. 2005)

(S . D.N.Y . 2004) , aff'd, 1 36 F.

(c itati ons omitted) . In addition, " even

wh en a nonmoving party chooses the perilous path of failing t o
submit a response t o a summary judgment motion," the burden
remains on the defendant to demo n strate summary judgment is
appropriate as a matter of law . Amaker v . Foley, 2 74 F.3 d 677 ,
681

(2d Cir . 2001) ; see also Vermont Teddy Bear, 373 F. 3d a t

244 ;

Holtz v . Rockefeller & Co ., In c ., 258 F. 3d 62, 74 n . 1 (2d Cir.
2001) ; Booker v . Fed. Reserve Bank of New Yo rk, Nos. 0 1 Ci v .
2 2 9 0 ( DC)

&

0 1 Ci v . 2 2 91 ( DC) , 2 0 0 3 WL 1 213 1 4 8 , at * 12

( S . D. N . Y .

Mar . 17 , 2003) ; Mattel , In c . v . Pitt, 229 F . Supp . 2d 3 1 5 , 320
(S .D. N.Y. 2002) .

However, proceeding pro se " does not ot h e rwis e r e li eve a
liti gant from t h e usual requirements o f summary judgment, and a
p r ose party's ' ba l d assertion,' unsupported by evidence , i s not
suff i cient to overcome a motion for summary judgment ." Cole v .
Ar tuz , No . 93 Civ . 5981 (WHP) (JCF) , 1 999 WL 983876 , at *3
(S . D. N.Y . Oct . 28 , 1999)

(quot ing Carey v . Crescenzi , 923 F. 2d
9

18, 21
424,

III.

(2d Cir. 1991)); see also Lee v . Coughlin,

902 F.Supp.

429 (S.D . N. Y. 1995).

The Eleventh Amendment Bars Plaintiff's Common Law and Due
Process Claims

The Eleventh Amendment bars claims against the State in
federal court unless the State has unequivocally consented to
suit or Congress has unequivocally and properly abrogated the
State ' s immunity from suit . Pennhurst State Sch . & Hosp . v.
Halderman , 465 U.S. 89 ,

99 (1984) . This immunity extends to

entities considered " arms of the state ," such as the senior
colleges of CUNY , see Clissuras v. City Univ . of N.Y. , 359 F.3d
79 , 82

(2d Ci r. 2004)

(citation and quotation marks omitted) , as

well as the state officials working at those entities on beha l f
of the State (i . e. , in their official capacities) . Pennhurst ,
465 U. S . at 121-23 .

"Where litigants accuse state officers of violating state
common law when acting in the course and scope of their
employment , the Eleventh Amendment prevents the litigant from
raising the claim in federal court whether the litigant seeks
damages or injunctive relief , and whether the litigant invokes
the court ' s original or pendent jurisdiction ." Hughes v . Savell,
902 F . 2d 376 , 378

(5th Cir. 1990)
10

(internal quotation marks and

citations omitted); see also Santiago v . N. Y. State Dep ' t of
Corr . Servs. , 945 F.2d 25 (2d Cir . 1991)

(holding that the

Eleventh Amendment bars suits brought directly pursuant to the
Fourteenth Amendment) ; Quern v. Jordan , 440 U. S . 332, 341-45
(1979)

(holding that Congress did not abrogate state sovereign

immunity by enacting

§

1983) . "Neither CUNY nor the State of New

York has waived its immunity to suit in federal court," for
either state law claims or federal

§

1983 claims . Mi l es v.

Baruch Coll ., No . CV07 - 1214 CPS/RLM , 2008 WL 222299 , at *3
(E.D . N.Y. Jan . 25, 2008) ; see also Jones v . Nat'l Comm . &
Surveillance Networks , 409 F . Supp . 2d 456, 467
aff ' d , 266 F. App ' x 31 (2d Cir . 2008)

(S . D. N.Y . 2006) ,

(summary order) ;

Pennhurst , 465 U.S . at 121.

Accordingly, Plaintiff's claims against CUNY and the
Individual Defendants in their official capacities for fraud
(causes of action five through eight) and breach of contract
(causes of action twelve through thirteen), as wel l as his due
process claims (causes of action three, four , nine , ten , and
eleven) are barred as a matter of law under Fed . R . Civ . P .
12 (b) (1) .

11

IV.

The Article 78 Proceeding Bars Plaintiff's Due Process
Claim

Plaintiff ' s Third, Fourth, Ninth , Tenth and Eleventh causes
of action assert due process violations . See Arn . Compl .

~~

80 -

100 , 130-140. Plaintiff alleges that Defendants deprived him of
his l egitimate property interest in his education without due
process by submitting false declarations during the Article 78
proceed in g in violation of the 14th Amendment . See

~~

82 , 88 ,

137 , 140 .

The due process clause does not protect aga i nst all
deprivations of constitutionally protected interests; it only
protects those taken " without due process of law," i.e., not i ce
and an opportunity to be heard. Zinermon v . Burch, 494 U.S . 113,
125 (1990)

(citation omitted) . Under Artic l e 78 of New York ' s

Civil Practice Law and Rules , Plaintiff had the opportunity to
have a hearing and the means to remedy his alleged depr i vation
of due process . Giglio v. Dunn , 732 F.2d 1133 , 1134

(2d Cir.

1984). The availabi l ity of an Article 78 proceeding alone, even
when Plaintiff fails to avail himself of it, satisfies the
" requisites of due process ." Id . Here, Plaintiff pursued an
Article 78 hearing , was represented by counsel during the
proceeding , submitted a lengthy petition with dozens of
12

•
exhibits , and his petition was ultimately dismissed . See Am.
Compl. , p. 3 , Ex. 26. Accordingly , the Third, Fourth, Ninth ,
Tenth and Eleventh causes of action are dismissed as a matter of
law against all Defendants . Plaintiff concedes that the issues
raised in his prior Article 78 proceeding and in this federal
proceeding are identical and that those issues were resolved
against him in his Article 78 case. Plaintiff argues , however ,
that issue preclusion based on a prior Article 78 determination
simply does not apply to cases like his. See Pl.'s Opp . Mem . at
6 . Plaintiff cites two cases in support of this argument . Id .

Plaintiff cites Davidson v. Capuano , 792 F.2d 275 (2 d Cir .
1986) , but that case c o ncerns cla i m preclusion , not issue
prec l usion. Plaintiff also cites Colon v . Coughlin , 58 F.3d 865
(2d Cir . 1995), which concerns the preclusive effect of an
Article 78 review of findings in an admini strative pr i son
disciplinary hearing . There , the Court stated in dicta that
there was a question whether "collateral estoppel shou l d ever
apply to fact issues determined in a prison disciplinary hearing
and reviewed for substantial evidence in an Art i cle 78
proceeding , given the 'procedural laxity ' of such prison
hearings.u Id.

(internal citations omitted). Plaintiff

interprets this to suggest that issue preclusion can never apply
in a subsequent federal proceeding based on judicial
13

determinations in Article 78 proceedings . However, the Court in
Colon was only addressing this issue with respect to prison
hearings, and declined to resolve that issue anyway. Here ,
Plaintiff is challenging the decision to terminate his
matriculation in a PhD program . He previously challenged that
determination in judicial proceedings brought before the New
York State Supreme Court pursuant to Article 78 during which he
had a full and fair opportunity to litigate that determination ,
and he has pointed to no case law suggesting concerns over
"procedural laxity" in such proceedings .

V.

Collateral Estoppel Bars Plaintiff ' s Acconunodation and
Retaliation Claim

Federal courts look to New York law to determine the
preclusive effect of a New York State Court judgment in a
subsequent federal action. Rameau v . N. Y.S. Dep't of Health , 741
F . Supp. 68 , 70 (S . D. N. Y. 1990) . "Under New York law , issue
preclusion precludes a party from relitigating an issue in a
subsequent action or proceeding an issue clearly raised in a
prior action or proceeding and decided against that party or
those in privity , whether or not the tribunals or causes of
action are the same . " Latino Officers Assoc . v . City of N. Y.,
253 F. Supp. 2d 771, 783 (S . D. N.Y . 2003)

14

(citing Ryan v. New

York Tel. Co. , 62 N.Y.2d 494, 500 (1984)) . This holds true for
Article 78 proceedings . Id. at 783 - 83 .

In October 2013 , Plaintiff initiated an Article 78
proceeding against CUNY and many of the same individual
defendants named in this action (Defendants Kelly, Robinson ,
Lerner, Marton and Schoengood) and in his petition, Plaintiff
specifically alleged violations o f the ADA and the
Rehabilitation Act based on a failure to accommodate and
retaliation. Plaintiff also alleged the same relevant facts in
his Article 78 Petition as he does here , claiming that he did
not receive an accommodation for the First Examination because
of the report of Dr . Sarah Bronson, who provided a
Neuropsychological Assessment of Plaintiff in June 20 12. See
Ver. Pet.,

~~

1 9- 28; Am . Comp l.,

~~

39 - 79 , Ex . 2 .

Judge Rakower determined whether Plaintiff had ever
requested an accommodation for the First Examination . Th e Court
stated that "[Plaintiff] didn ' t ask for any accommoda tion with
regard to the first examinat i on 1' prior to his dismissal . Am.
Compl. , Ex. 26 , 9 : 232 - 3 . Indeed , Plaintiff's counsel
acknow ledged on the record that " [i]t is true that here was no
such letter" requesting a specific accommodation for the First
Examination . Id., 10:4-5. While it is not exp li citly stated in
15

Plaintiffs Amended Complaint , Plaintiff appears to suggest that
a February 2012 email from Sharon Lerner discussing
accommodations generally was a specific request for an
accommodation for the First Examination . See Arn . Compl .

~

34 .

That document was already before Judge Rakower in the Article 78
proceeding , Ver. Pet., Ex. 2 , as was Dr . Bronson's report, id . ,
Ex . 5 , and many other documents that are now appended to the
Amended Complaint . See Ver. Pet., Exs . 11 - 16 , 19, 25 , 29) . The
Article 78 Court stated that given the nature of the First
Examination, a project with virtually no time restraints, an
accommodation would have made no impact and nothing " would have
been different had there been more time to submit [the
Examination]." Arn. Compl. , Ex. 26, 15:21-3. Judge Rakower
concluded the request for an accommodation and the first and
second submissions of the First Examination were on " parallel
tracks . " Id. , 11 : 23-4 . Plaintiff re-submitted his First
Examination on July 2 , 2012 before meeting with Defendant Lerner
to discuss possible accommodations on July 5, 2012. See Ver .
Pet.,

~

23; Arn. Compl.

~

43.

Plaintiff also presented his theory to Judge Rakower
regarding the attribution of retaliatory motives to CUNY.
Plaintiff alleged in his petition that he was dismissed less
than two hours after submitting his request for an
16

accommodation , and that such a dismissal was an "ill egal act of
retaliation." Ver. Pet .,

<][

74-5. The Court pointed out that the

submission of the report requesting specific accommodations was
occurring on " parallel tracks" with the review of the First
Examination. Am . Compl., 26 , 11 : 23 - 4 . Judge Rakower conc luded
that "[ CUNY was] fully prepared to work with him once the new
semester started " based on the suggestions of Dr. Bronson . Id.,
12 : 5 - 6 .

Plaintiff's Petition in the Art i cle 78 Proceeding
spec i fically alleged violations of the ADA and the
Rehabilitation Act based on a fa ilure to accommodate and
retaliation, and those claims were c l early described in
Plaintiff's petition, based on the same facts as those presented
here. Plaintiff's

§

1983 , fraud and breach of contract claims

seek to relitigate his request for an accommodation, even though
Judge Rakower already has considered this evidence , and ruled in
favor of Defendants. Plaintiff has already availed himself o f
the opportunity to litigate those i ssues, and is now
collaterally estopped . Ver . Pet.

<][

l; see Parker v . Bl auvelt

Volunteer Fire Co . , 93 N. Y. 2d 343 , 350 , 712 N.E.2d 647

17

(1999)

Plaintiff also presented his theory that Defendants did not
comply with the 2009 - 2010 Student Handb ook in his Verified
Petition, which now appears as the Thirteenth Cause of Action
for breach of contract . Ver. Pet ,

~

76 . Judge Rakower rejected

this al legati on as well , stating there was no violation of the
2009 handbook and that claim should also be dismi ssed . Am.
Compl ., Ex. 26 , 15:11-5.

Accordingly, all causes of action founded upon Pl aintiffs
alleged request for an accommodation for the First Examination
are precluded by the prior Article 78 proceeding , and the First,
Second , Third,

Fifth, Sixth , Seventh , Eighth , Twelfth and

Thirteenth causes of action are dismissed .

VI.

Plaintiff's Discrimination Claim Under the ADA or the
Rehabilitation Act is Inadequately Alleged

Plaintiff ' s claim under the ADA or Rehabilitation Act for
failure to accommodate fails to state a plausible claim . To
state a claim under e ither act , a plaintiff '' must demonstrate
(1) that she is a qualified individual with a disability ;

(2)

that the defendants are subject to one of the Acts ; and (3)

that

she was denied the opportunity to participate in or benefit from
defendants' services , programs, or activities , or was otherwise

18

discriminated against by defendants , by reason of her
disability ." Harris v. Mills , 572 F . 3d 66 , 73 - 74

(2d Cir. 2009)

(noting that the standards for the ADA and the Rehabi l itation
Act are generally equivalent)

(citing Powe ll v . Nat ' l Bd . of

Med . Examiners , 364 F . 3d 79 , 85 (2d Cir . ), opinion corrected ,
51 1 F . 3d 238

(2d Cir . 2004)) . Here , Plaintiff never asserts what

accommodation he would have needed to assist him in passing the
First Examination. Plaintiff fails to estab l ish that he was
denied the opportunity to participate or benefit from
Defendants '

services or programs by reason of his disability.

See Felix v. N.Y . City Transit Auth ., 324 F . 3d 102, 1 07
2003)

(2d Cir .

( " The ADA mandates reasonable accommodation of people with

disabi l ities in order to put them on an even playing field with
the non - disabled ; it does not authorize a preference for
disab l ed people generally ." ) The Plaintiff fails to plead the
third requirement for stating a claim for discrimination under
the ADA or Rehabilitation Act .

On June l 2012 , Petitioner provided Defendant Lerner with a
Neuropsychol ogica l Assessment conducted by psycho l ogist Sarah L .
Bronson , which Pl aintiff has attached as Exhibit 2 to his
Amended Complaint. The report provides three recommendations for
accommodations: 1)

" organizational assistance from his

professors when producing written work; " 2) take home tests in
19

his statistics classes ; and 3) assistance with taking notes . Arn .
Compl. , Ex. 2 (Recommendations section) . None of these potentia l
accommodations wou l d have assisted Plaintiff in passing the
Fi rst Examination , which is a paper proposing a research project
designed by the student . Arn. Compl. , Ex . 25 ,

~

6. A student is

permitted feedback from a professor on two drafts of the First
Exami nation paper before it is submitted , and a student may
retake the examination once if he or she fails . Id. ,

~

7.

Plaintiff , who had just completed his third year in the program
at the time of his dismissal , had a l ready had a number of years
to work on his first examination . The Plaintiff sent a fo l low - up
letter to Defendant Lerner discussing potential accommodations
and aga i n made no mention of seeking an accommodation for the
Fi rst Examination. Arn . Compl. , Ex . 7 . Instead, Plaintiff listed
three specific suggestions of accommodat i ons for statistics
courses . Id. Plaint i ff seems to acknowledge the lack of a
request for an accommodation for his First Examination in his
Amended Complaint by stating that " he asked for he l p to complete
the required work that wou l d lead to a Ph.D. " Id. ,

~

49 .

Plaint i ff had not spoken to Defendant Lerner when he resubmitted his First Examination , Ver . Pet .,
~

~

23 ; Arn . Compl .

43 , and the only document attached to his Amended Complaint

that mentions a potential accommodation for the First
Examination is an email he sent on August 23, 2012 after
20

learning he had failed the First Examination on August 17 , 2012 .
Ver . Pet ,

~

38; Am. Compl. , Ex. 16.

As determined by Judge Rakower, and as is clear from the
Verified Petition and the Amended Complaint and its exhibits,
Plaintiff did not request an accommodation for the First
Examination prior to his second failure, nor alleged what
accommodation would have assisted him in passing the First
Examination , which he had already submitted prior to discussing
accommodat i ons with Defendant Lerner. Accordingly , Plaintiff has
failed to allege that CUNY failed to provide, or that he
requested, a reasonable accommodation for the First Examination,
and Pla in tiff ' s first cause of action is dismissed on that
basis .

VII.

Plaintiff's Retaliation Claim Under the ADA or the
Rehabilitation Act is Inadequately Alleged

To plead a retaliation claim under the ADA or the
Rehabilitation Act, a plaintiff must allege that " (1) he engaged
in an activity protected by the ADA;
of this activity ;

(2) the employer was aware

(3) the employer took adverse employment

action against him; and (4) a causal connection exists between
the alleged adverse action and the protected activity ." Treglia

21

v. Town of Manlius, 313 F.3d 713, 719 (2d Cir . 2002)

(citation

omitted) .

Here, Plaintiff has not alleged that Defendants were aware
of his request for an accommodation or that a causal connection
exists between his request for an accommodation and his
termination from the program. Plaintiff alleges in his Amended
Comp l aint that Defendant Marton only became aware of the request
for an accommodation on the day he was dismissed from the
program - August 24 , 20 1 2 - when he alleges that he sent i t to
her. Am. Compl., p 67. Plaintiff also seems to allege that the
decision to terminate him had nothing to do with the request for
an accommodation, but was instead based on an alleged scheme by
Defendants Shafer , Whalen, Marton and Obler, none of whom were
alleged to be aware of any r equest for an accommodation until
the actual termination to expel him from the program. Id., 5564 . But Plaintiff had failed the First Examination for the
second time on August 17, 20 1 2 , id., Ex. 14, and he was notified
of his failure on the same day. Id., Ex. 25,

~

1 9 . Since

Plaintiff had already failed the First Examination and was
notified of it on August 17, 2012, there can be no causal link
since he had already failed out of the program based on the
program's policies, and was aware of hi s failure.

22

As alleged , Plaintiff has not indicated that Defendant
Marton or any other decision maker was aware of his request for
an accommodation , and even if they were, the request was made
after Plaintiff had failed the First Examination. There is no
causal connection between the request and the decision to
terminate him from the program .

Accordingly , the Second cause of action is d i smissed .

VIII.

Plaintiff's Fraud Claim is Inadequately Alleged

Plaintiffs Fifth, Sixth , Seventh and Eighth causes of
action appear to assert a claim of fraud based on third party
reliance . Plaintiff contends that Prestige Builder & Mgmt. LLC
v . Safeco Ins. Co. of Am . , 896 F . Supp. 2d 198

(E . D.N . Y. 2012)

demonstrates that third party reliance is a recognized doctrine
in New York common law. However , the question of whether third
party reliance provides a basis for a fraud claim under New York
law was recently certified to the New York Court of Appeals in
Pasternack v . Lab. Corp . of Am. Holdings , 8 07 F.3d 14, 22 - 23 (2d
Cir . 2015) . The New York Court of Appeals has since answered in
the negative: "[T]his Court has stated on a number of occasions
that a fraud claim requires the plaintiff to have relied upon a
misrepresentation by a defendant to his or her detriment.
23

We, therefore, decline to extend the reliance element of fraud
to include a claim based on the reliance of a third party,
rather than the plaintiff." Pasternack v . Lab. Corp . of Am .
Holdings, No. 112 , 2016 WL 3543713 (N.Y. June 30, 2016).

Even if Plaintiff were able to proceed based on third party
reliance, Plaintiff must still show " a representation of
material fact , falsity,

scienter , reliance and injury." Id. at

22 (internal quotes and citations omitted) . A claim for common
law fraud under New York law must also satisfy the requirements
of the heightened pleading standard under Rule 9(b) of the
Federal Rules of Civil Procedure . JBC Holdings NY , LLC v.
Pakter , 931 F. Supp. 2d 514 , 531 (S . D. N. Y. 2013). To meet the
heightened pleading standard under Rule 9(b) , a plaintiff must
plead the elements of fraud with particularity . Id . at 532 .
Specifically , " the complaint must :

( 1) specify the statements

that the plaint i ff contends were fraudulent ,
speaker ,

(2)

identify the

(3) state where and when the statements were made , and

(4) explain why the statements were fraudulent ." Mills v. Polar
Molecular Corp . , 12 F.3d 1170, 1175 (2d Cir. N. Y. 1993).
Plaintiff must also allege a strong inference of fraudu l ent
intent , which may be established either "(a) by alleging facts
to show that defendants had both motive and opportunity to
commit fraud , or (b) by alleging facts that constitute strong
24

circumstantia l evidence o f conscious misbehavior or
recklessness ." JBC Holdings,

931 F . Supp . 2d at 531 (internal

quotes and citations omitted) . Plaintiff has not met this
standard .

Plaintiff has failed to al l ege why any statements made by
the Defendants were false.

Plaintiff ' s a ll egat i ons of fraud are

simply that he believes Defendant ' s Whalen , Lerner , Marton and
Attorney General Steve Banks made mi sreprese ntations during the
Article 78 proceeding . Arn. Compl.

~

104, 111, 118 and 126. The

basis for this belief is not provided beyond his subjective
belief that the referenced statements are false, and has not
articulated why the statements were fa l se .

For these reasons , the Fifth-Eighth causes of action are
dismissed .

IX.

Plaintiff Fails To State Claims Against Individual
Defendants Raymond, Milliken, Kelly, Schoengood And
Robinson.

Pl aintiff has failed t o a ll ege facts that would support any
c laims against Defendants Raymond , Milliken , Kelly , Schoengood ,
or Robinson i n their individual or offic i al capacities .
Pl a intiff al l eges that " Defendants CUNY , Kelly , Lerner , Marton ,
Obler , Raymond , Schoengood , Shafer , and Whalen knew that
25

Plaintiff is learning disabled ," Arn . Compl.

~

7 , but does not

identify any acts by Defendant Raymond that were discriminatory
or retaliatory in nature . Indeed, the only allegation in
Plaintiff ' s retaliation cause of action is that Defendant
Raymond spoke with Defendant Lerner about possible
accommodations . See id .,

~

72 . Plaintiff then states, without

any basis whatsoever , that Raymond " presumably advised Defendant
Lerner to break the law. " Id . The exhibit referenced by
Plaintiff does not suggest any unlawful conduct by Defendant
Raymond . It is not stated what advice she offered or how such
advice was unlawful , and Plaintiff no specific allegations
regarding this alleged conduct .

Defendant Miliken is only mentioned once in the entire
Amended Complaint , where Plaintiff that he is the employer of
Defendant Robinson , and Defendant Robinson is described as the
employer of Defendants Lerner , Marton, Ob l er , Raymond ,
Schoengood , Shafer , and Whalen . Id. ,

~

8. While Defendant

Milliken is the Chancellor of CUNY and Defendant Robinson is the
President of the Graduate Center (although not at the time of
the events described in the Amended Complaint) , they are not the
employers of any individual at the school , and there are no
allegations that either of them was aware of any of the
allegations in the Amended Complaint when they occurred.
26

Plaintiff attempts to implicate Defendants Kelly and
Schoengood through two documents . Plaintiff copied Defendant
Schoengood o n an emai l to Defendant Lerner , three days after his
matriculation as a student was terminated, see Exs.

9 and 21 ,

and Plaintiff sent Defendant Kelly a letter regarding hi s
request for accommodation on August 14 ten days before h is
termination . Ex. 8 . But Plaintiff does not state how either
individual participated in the decision to terminate Plaintiff ,
and there are no spec i fic al l egations that they did so .

For these reasons, all causes of act i o n against Defendants
Raymond , Milliken, Ke l ly , Schoengood , and Robinson are
dismissed .

X.

Plaintiff's Motion to Stay is Denied

No appropriate grounds for a stay having been presented ,
the motion i s denied .

27

XI .

The Plaintiff's Motion for Conversion to Summary Judgment is
Denied

Defendants' citations to the exhibits to Plaintiff ' s
attached exhibits is completely appropriate and consistent with
Chambers v . Time Warner, 282 F . 3d 147, 154 (2nd Cir . 2002) , cited
by Plaintiff, which concerned a lower court ' s inappropriate
re v iew of extrinsic documents . There, the Second Circuit stated
the wel l- estab lish ed rule that " on a motion to dismi ss , a court
may consider ' documents attached to the comp laint as an exhib it
or incorporated in it by reference

. documents either in

plaintiffs' possession or of which plaintiffs had knowledge and
relied on i n bringing su it.'" Id. at 153 , quoting Brass v .
American Film Technologies , Inc., 987 F . 2d 142 , 150 (2d Cir .
1993). In Chambers the lower court reviewed documents that were
outside the pleadings . Here , Defendants ' mot ion to dismiss
properly relies only on documents that were attached as exh ibits
and made part of the Amended Comp laint, incorporated therein by
r eference , and/or court records of which the Court can take
judicial notice. Accordingly , the Plaintiff's motion to convert
Defendants' motion to dismiss to a mo tion for summary judgment
is denied.

28

\·

XII .

The Plaintiff's Motion for Fees is Denied

Plaintiff seeks reimbursement for the costs associated with
attempts to serve Defendants before he provided service by mail.
The docket entries for service by mail indicate that Plaintiff
served the Individual Defendants by mail on February 21, 2016.
ECF Nos. 31 - 38. Plaintiff seeks repayment for fees for service
attempted prior to February 4, 2016 , ECF Nos . 22 - 25 , for service
on February 9 , 2016 , ECF Nos . 41-43 , and for service on January
12 , 2016 , ECF No . 44 .

Federal Rule of Civil Procedure 4(d) prescribes a duty to
individuals , corporations , and associations subject to service
under Rule 4(e) ,

(f), or (h) "to avoid unnecessary expenses of

serving the summons." To trigger the duty, the plaintiff must
provide notice of the pendant action and request waiver of
service . Fed . R. Civ. P . 4(d) (1) . "The notice and request must:
(A) be in writing and be addressed :
(i) to the individual defendant ; or
(ii) for a defendant subject to service under Rule
4(h) , to an officer , a managing or general agent , or
any other agent authorized by appointment or by l aw to
receive service of process ;
(B) name the court where the complaint was filed;
(C) be accompanied by a copy of the complaint , 2 copies of
the waiver form appended to this Rule 4 , and a prepaid
means for returning the form;
(D) inform the defendant , using the form appended to this
Rule 4, of the consequences of waiving and not waiving
service;
29

(E) state the date when the request is sent ;
(F) give the defendant a reasonable time of at least 30
days after the request was sent-or at least 60 days if sent
to the defendant outside any judicial district of the
United States-to return the waiver; and
(G) be sent by first-class mail or other reliable means.
Fed R. Civ. P . 4 (d) (1) (A)-(G).

If a defendant located in the United States fails to return
a waiver request pursuant to Rule 4(d) absent good cause , the
Court is mandated to impose on the refusing defendant "expenses
later incurred in making service " and associated motion costs to
recover those expenses . Fed. R. Civ . P . 4 (d) (2) (A).

In his letter requesting costs pursuant to Rule 4 (d) (2) ,
Plaintiff fails to allege or demonstrate the notice and request
for waiver was provided pursuant to the strict requirements of
Rule 4 (d) (1) (A) - (G). The request is therefore denied.

30

XIII.

Conclusion

Based on the conc lusi ons set forth above , Defendants '
motion to dismiss the Amended Complaint is granted , and the
motions of the Plaintiff f or a stay , conversion to summary
judgment and fees are denied . This op ini on terminates the above
entitled action in addition to ECF Nos . 9 , 1 7 , 28 .

It is so ordered .

New York, NY
July f I , 2016

W~SWEET
U.S.D.J.

'ROBERT

31