Weinberger v. The City of New York et al

Filing 53

MEMORANDUM OPINION AND ORDER re: 45 MOTION to Dismiss . filed by Dean Tow, The City Of New York, Kerry J. Kelly, David J. Prezant, James E. Leonard, Daniel A. Nigro, James Chey, Michael D. Weiden. For the foregoing reasons, Defenda nts' motion to dismiss is GRANTED in part and DENIED in part. Unless and until the Court orders otherwise, Defendants shall file an answer with respect to Weinberger's remaining claims within three weeks of this Memorandum Opinion and Or der. Additionally, the parties shall appear for an initial pretrial conference with the Court on September 20, 2018, at 2:30 p.m., in Courtroom 1105 of the Thurgood Marshall United States Courthouse, 40 Centre Street, New York, New York. In accorda nce with the Notice of Initial Pretrial Conference (Docket No. 27), the parties shall file a joint letter and proposed Case Management Plan no later than the Thursday before the conference. The Clerk of Court is directed to terminate Docket No. 45. SO ORDERED. (Initial Conference set for 9/20/2018 at 02:30 PM in Courtroom 1105, 40 Centre Street, New York, NY 10007 before Judge Jesse M. Furman.) (Signed by Judge Jesse M. Furman on 8/21/2018) (ne)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
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:
JASON WEINBERGER,
:
:
Plaintiff,
:
:
-v:
:
THE CITY OF NEW YORK, et al.,
:
:
Defendants.
:
:
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08/21/2018
17-CV-9998 (JMF)
MEMORANDUM OPINION
AND ORDER

JESSE M. FURMAN, United States District Judge:
Plaintiff Jason Weinberger brings suit against the City of New York and various officials
from the New York City Fire Department (“FDNY”), alleging violations of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. § 12101 et seq.; Section 504 of the Rehabilitation Act, 29
U.S.C. § 794 et seq.; Title 42, United States Code, Section 1983; as well as state and local laws.
(Docket No. 1 (“Compl.”), ¶ 1). In brief, Weinberger alleges that Defendants discriminated
against him when they rejected his application to become a firefighter for medical reasons. (See
id. ¶¶ 258-93). Defendants now move, pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure, for partial dismissal of the Complaint. (Docket No. 45). In particular, they seek to
dismiss Weinberger’s ADA claims on the ground that they are untimely and his Section 1983
claims for failure to state a claim. (Docket No. 48 (“Defs.’ Mem.”), at 4-7). They also seek a
ruling that Weinberger is collaterally estopped from relitigating “any factual issues” that were

decided against him in proceedings before the New York City Civil Service Commission
(“CSC”) and in an Article 78 proceeding in New York State court. (See id. at 7-11).1
Defendants’ arguments may ultimately carry the day, but — with one exception — they
are not well taken at this stage of the proceedings. First, while Weinberger failed to file a charge
of discrimination with the Equal Employment Opportunity Commission within 300 days of his
final notice of disqualification, he alleges facts that, if true, could support a claim of equitable
tolling. (See Compl. ¶¶ 63-68, 73, 79, 87, 94-98, 157; see also Pl.’s Mem. 7-8). To be sure, he
ultimately faces an uphill battle on that front, as equitable tolling applies only in “rare and
exceptional circumstances, where . . . extraordinary circumstances prevented a party from timely
performing a required act, and that the party acted with reasonable diligence throughout the
[tolling] period.” Walker v. Jastremski, 430 F.3d 560, 564 (2d Cir. 2005) (internal quotation
marks omitted). But the issue ultimately turns on facts and inferences that are in dispute and thus
cannot be resolved on a motion to dismiss. Second, while the CSC and Article 78 proceedings
may ultimately bar Weinberger from relitigating certain facts, see, e.g., Dolan v. Roth, 170 F.
App’x 743, 746 (2d Cir. 2006), the Court cannot determine on the current record — let alone
with the requisite “clarity and certainty” — what facts were determined in those proceedings.
Postlewaite v. McGraw-Hill, 333 F.3d 42, 49 (2d Cir. 2003) (internal quotation marks omitted);
see also, e.g., United States v. E. River Hous. Corp., 90 F. Supp. 3d 118, 151 (S.D.N.Y. 2015)
(noting that the determination of whether preclusion applies involves a “multifaceted inquiry”

1

In addition, Defendants move in one paragraph to dismiss Weinberger’s ADA and
Rehabilitation Act claims to the extent they are brought against the individual Defendants in their
individual, rather than official, capacities. (See Defs.’ Mem. 5). In his opposition, however,
Weinberger concedes (or at least clarifies) that the individual Defendants “are not . . . named in
their ‘individual capacities.’” (Docket No. 49 (“Pl.’s Mem.”), at 10; see also Compl. ¶¶ 12-18).
Accordingly, that portion of Defendants’ motion is denied as moot.

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that requires consideration of “the various elements which make up the realities of litigation”
(internal quotation marks omitted)).
By contrast, Defendants’ motion to dismiss Weinberger’s Section 1983 claim of selective
enforcement is well taken. (See Pl.’s Mem. 11 (clarifying that Weinberger brings a selectiveenforcement claim and does not contend that disability and/or perceived disability are suspect or
quasi-suspect classifications under the Equal Protection Clause); see also Compl. ¶¶ 291-92).
“To state a class-of-one equal protection claim the plaintiff must allege that he has been
intentionally treated differently from others similarly situated and that there is no rational basis
for the difference in treatment.” Martine’s Serv. Ctr., Inc. v. Town of Wallkill, 554 F. App’x 32,
35-36 (2d Cir. 2014) (internal quotation marks and brackets omitted). To make such a showing,
the plaintiff must demonstrate that, “compared with others similarly situated, [he] was selectively
treated” and that such “treatment was motivated by an intention to discriminate on the basis of
impermissible considerations, such as race or religion, to punish or inhibit the exercise of
constitutional rights, or by a malicious or bad faith intent to injure the person.” Zahra v. Town of
Southold, 48 F.3d 674, 683 (2d Cir. 1995) (quoting FSK Drug Corp. v. Perales, 960 F.2d 6, 10
(2d Cir. 1992)). Here, however, the Complaint levies only a conclusory and formulaic
accusation that “Defendants . . . treated [Plaintiff] differently from others similarly situated based
on impermissible considerations such as intent to inhibit or punish the exercise of his
constitutional rights, or malicious or bad faith intent to injure him.” (Compl. ¶ 292). Because
such “threadbare recitals of a cause of action’s elements, supported by mere conclusory
statements,” are plainly insufficient to state a claim, Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009),
Weinberger’s Section 1983 claim must be and is dismissed.

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For the foregoing reasons, Defendants’ motion to dismiss is GRANTED in part and
DENIED in part. Unless and until the Court orders otherwise, Defendants shall file an answer
with respect to Weinberger’s remaining claims within three weeks of this Memorandum
Opinion and Order. Additionally, the parties shall appear for an initial pretrial conference with
the Court on September 20, 2018, at 2:30 p.m., in Courtroom 1105 of the Thurgood Marshall
United States Courthouse, 40 Centre Street, New York, New York. In accordance with the
Notice of Initial Pretrial Conference (Docket No. 27), the parties shall file a joint letter and
proposed Case Management Plan no later than the Thursday before the conference.
The Clerk of Court is directed to terminate Docket No. 45.

SO ORDERED.
Date: August 21, 2018
New York, New York

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