The opinion
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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CRAIG MOSKOWITZ and BARBARA MOSKOWITZ,
each on their own behalf, and as ORDER ADOPTING REPORT
parents on behalf of their minor AND RECOMMENDATION
child, S.M.,
Plaintiffs, 20-CV-1659 (KAM)(SIL)
-against-
GREAT NECK UNION FREE SCHOOL
DISTRICT, THE BOARD OF EDUCATION OF
THE GREAT NECK UNION FREE SCHOOL
DISTRICT, DANA SLACKMAN, DR.
GABRIELLA DUKE, KATE MUGNO, ROBIN
TRICHON, DR. ANTHONY IACOVELLI,
LUCIANA BRADLEY, and SARA GOLDBERG,
each Individually, and in their
respective official capacities,
Defendants.
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MATSUMOTO, United States District Judge:
Plaintiffs Craig Moskowitz and Barbara Moskowitz, on
their own behalf and on behalf of their minor child, identified
for the purposes of litigation as “S.M.” (collectively,
“Plaintiffs”), commenced this action on April 1, 2020, against
Defendants Great Neck Union Free School District (the
“District”), the Board of Education of the Great Neck Union Free
School District (the “Board”), Dana Slackman, Dr. Gabriella
Duke, Kate Mugno, Robin Trichon, Dr. Anthony Iacovelli, Luciana
Bradley, and Sara Goldberg (collectively with Slackman, Duke,
Mugno, Trichon, Iacovelli, and Bradley, the “Individual
Defendants,” and with the District and the Board, “Defendants”).
(See ECF No. 1, Compl.) Plaintiffs alleged violations of:
Section 504 of the Rehabilitation Act of 1983 (“Section 504”);
the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12101
et seq.; and 42 U.S.C. § 1983 (“Section 1983”) with respect to
Plaintiffs’ Due Process, Equal Protection, and Fourth Amendment
rights for the 2017-2018 and 2018-2019 school years, as well as
related state law claims for false imprisonment, intentional
infliction of emotional distress, negligent infliction of
emotional distress, negligence, negligent training and
supervision, negligent performance of a governmental function,
and assault and battery. (See Compl.; see also R. & R. at p.
2.) On December 11, 2020, Defendants filed their motions to
dismiss the complaint for lack of subject matter jurisdiction
pursuant to Federal Rule of Civil Procedure 12(b)(1) and failure
to state a claim pursuant to Federal Rule of Civil Procedure
12(b)(6), which Plaintiffs opposed. (See ECF No. 34, Defs.’
Mot. to Dismiss; see also ECF No. 35, Def. Slackman Mot. to
Dismiss; ECF No. 37, Pls.’ Opp.) Defendants filed a reply in
support of their motion to dismiss. (See ECF No. 41, Defs.’
Reply Mem. of Law.)
On April 1, 2021, the Court referred this matter to
United States Magistrate Judge Steven I. Locke for a Report and
Recommendation. (See Order Referring Mot., Apr. 1, 2021.) On
August 4, 2021, Judge Locke issued a Report and Recommendation
recommending that the Court grant in their entirety Defendants’
Motion to Dismiss for Failure to State a Claim and Defendant
Dana Slackman’s Motion to Dismiss for Failure to State a Claim,
recommending specifically that: (1) Plaintiffs’ Section 504 and
ADA claims against the District and the Board be dismissed
without prejudice until all administrative remedies are
exhausted; (2) Plaintiffs’ Section 1983 claims against the
District and the Board under the theory of Monell liability be
dismissed without prejudice, with leave to replead consistent
with the recommendation; (3) Plaintiffs’ Section 504, ADA, and
Section 1983 claims against the Individual Defendants be
dismissed with prejudice, as a matter of law; and, (4)
Plaintiffs’ state law claims be dismissed without prejudice.
(See ECF No. 42, R. & R. at p. 47.) The Report and
Recommendation notified the parties of their right to file
written objections within fourteen (14) days of receipt via ECF
of the Report and Recommendation. (Id. at p. 47.) The parties
were thus granted until August 18, 2021, to timely file any
objections to the Report and Recommendation. (See Docket Order,
Aug. 4, 2021.) No objections have been filed.
Where no objections to a Report and Recommendation are
made, a district court reviews the Report and Recommendation for
clear error. See Johnson v. Pep Boys-Manny, Moe & Jack of
Delaware, Inc., No. 17-cv-00056 (AMD)(JO), 2017 WL 4402453, at
*1 (E.D.N.Y. Oct. 2, 2017) (citing Mt. Hawley Ins. Co. v.
Abraham Little Neck Dev. Grp., Inc., No. 09-cv-3463 (PKC)(ARL),
2015 WL 867010, at *1 (E.D.N.Y. Feb. 27, 2015) (reviewing Report
and Recommendation for clear error where no objections were
made). Upon a careful review of the record and Judge Locke’s
thorough, well-reasoned Report and Recommendation, the Court
finds no clear error and hereby affirms and adopts the Report
and Recommendation in its entirety as the opinion of the Court.
Accordingly: (1) Plaintiffs’ Section 504, ADA, and
1983 claims against the District and the Board are dismissed
without prejudice, provided that Plaintiffs’ first timely
exhaust all administrative remedies; (2) Plaintiffs’ Section
1983 claims against the District and the Board under the theory
of Monell liability are dismissed without prejudice, with leave
to replead consistent with Judge Locke’s Report and
Recommendation; (3) Plaintiffs’ Section 504, ADA, and Section
1983 claims against the Individual Defendants are dismissed with
prejudice as a matter of law; and, (4) Plaintiffs’ state law
claims are dismissed without prejudice to refile. Defendants’
motions to dismiss are GRANTED in their entirety.
Plaintiffs are granted thirty (30) days to file an
amended complaint. Failure to do so will result in an entry of
judgment in favor of Defendants.
SO ORDERED.
Dated: August 31, 2021
Brooklyn, New York
__/s/ Kiyo A. Matsumoto______
Kiyo A. Matsumoto
United States District Judge