Makhnevich v. Novick Edelstein Pomerantz PC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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STACY MAKHNEVICH,

MEMORANDUM & ORDER

Plaintiff, 21-CV-05516 (KAM)(VMS)

- against -

GREGORY S. BOUGOPOULOS; NOVICK EDELSTEIN

POMERANTZ, P.C.,

Defendants.

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KIYO A. MATSUMOTO, United States District Judge:

Plaintiff Stacy Makhnevich, proceeding pro se, brings

this action against Defendants Gregory S. Bougopoulos and Novick

Edelstein Pomerantz, P.C. (collectively, the “Novick Firm”),

asserting violations of the Fair Debt Collection Practices Act

(“FDCPA”), 15 U.S.C. § 1692 et seq., the Americans with

Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., the New York

Human Rights Law (“NYHRL”), N.Y. Exec. Law § 296 et seq., and the

New York City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-

101 et seq. Plaintiff claims that Defendants engaged in unfair

debt collection practices and unlawful discrimination against her

during the course of state court litigation to recover condominium

charges and other fees assessed against Plaintiff.

Defendants now move for summary judgment on Plaintiff’s

claims pursuant to Federal Rule of Civil Procedure 56. Defendants

have complied with Local Civil Rules 56.1 and 56.2. For the

reasons set forth below, Defendants’ motion for summary judgment

is GRANTED as to the FDCPA claim, ADA claim, and as to Plaintiff’s

claim for declaratory relief. Plaintiff’s claims under the NYHRL,

N.Y. Exec. Law § 296 et seq., and NYCHRL, N.Y.C. Admin. Code § 8-

101 et seq. are DISMISSED without prejudice.

BACKGROUND

The court finds that the following facts are not in genuine

dispute, based on the parties’ 56.1 statements, declarations,

exhibits, and docket.1

I. State Court Proceedings

The court will briefly summarize the parties’ underlying

state Civil Court Action, in part by reference to the detailed

overview previously provided in Makhnevich I. See 2022 WL 939409,

at *2-3 (E.D.N.Y. Mar. 29, 2022). On November 25, 2015, Defendant

Novick Firm filed a complaint against Plaintiff, on behalf of the

Board of Managers of Plaintiff’s condominium (“Condo Board”). The

complaint sought $7,283.16 in unpaid common charges, assessments,

and late fees, (collectively “condo fees”) as well as attorney’s

fees in excess of $2,500.00. Id. at *1. On April 18, 2018, the

state court awarded summary judgment to the Condo Board against

Plaintiff as to liability for unpaid condominium common charges

1 All pin citations to the record refer to the page number assigned by the

court’s CM/ECF system.

and fees. (ECF No. 38-25 (“Pl.’s 56.1”) ¶ 3; ECF No. 37-20 at 3-

6.)

After a December 2018 jury trial, the state court ordered

that judgment be entered against Plaintiff “in the total amount of

$16,264.62, together with statutory costs and statutory interest

to commence from July 1, 2017.” (ECF No. 37-21 at 3; see also

Pl.’s 56.1 ¶ 4.) That Decision & Order noted that the “attorneys’

fees due and owing associated with this matter will be issued in

a separate order and judgment after an attorney fee hearing has

concluded.” (ECF No. 37-21 at 3.) On August 29, 2019, the state

court entered judgment against Ms. Makhnevich in the amount of

$40,936.60, the sum of the jury’s verdict, the award of attorneys’

fees, interest, and certain court costs. (ECF No. 37-28.)

II. Parties’ First Federal Action: Makhnevich I

Ms. Makhnevich commenced her first federal action by filing

a complaint on January 16, 2018 against the Novick Firm, Mr.

Bougopoulos, and the Condo Board, alleging violations of the FDCPA,

15 U.S.C. § 1692 et seq., and section 349 of New York’s General

Business Law (“GBL”). See Makhnevich v. Bougopoulos, Novick,

Edelstein, Lubell, Reisman, Wasserman & Leventhal P.C., 2022 WL

939409, at *1, *3 (E.D.N.Y. 2022) (“Makhnevich I”); (see also

Makhnevich I, ECF No. 1.)2 On November 19, 2018, the court granted

2 Defendant Novick Firm has since changed its name to Novick Edelstein

Pomerantz, P.C. (Makhnevich I, ECF No. 85.)

Plaintiff’s motion for leave to file an amended complaint based on

Defendants’ consent. (Makhnevich I, 11/19/18 Minute Order.)

Plaintiff then filed an amended complaint that same day.

(Makhnevich I, ECF No. 58.) By Memorandum and Order dated March

29, 2022, the court granted Defendants’ motion for summary judgment

as to Plaintiff’s FDCPA claims, and dismissed Plaintiff’s GBL

claims without prejudice after declining to exercise supplemental

jurisdiction per 28 U.S.C. § 1367(c)(3). See Makhnevich I, at

*17. Judgment was entered against Plaintiff accordingly on March

30, 2022.3

III. This Action

As part of her opposition to Defendants’ motion for

summary judgment in Makhnevich I, Plaintiff included a “motion for

leave to file supplemental complaint.” (Makhnevich I, ECF No.

176-1 at 34-36.) Plaintiff did so despite the court’s order that

she “may not further amend the complaint or file additional motions

without a court order granting permission to do so.” (Makhnevich

I, 11/19/18 Minute Order.) On August 17, 2021, Plaintiff filed a

new action against Defendants in the United States District Court

for the Southern District of New York, which subsequently

transferred the case to this court. As a result, in Makhnevich I,

this court denied Plaintiff’s motion to “supplement” her complaint

3 Plaintiff has filed an appeal to the Second Circuit from the final judgment

in Makhnevich I. The appeal is currently pending.

as moot, because Plaintiff raised her “supplemental” claims in her

second action filed in the Southern District of New York. The

court stated that the “allegations of disability discrimination”

raised in Plaintiff’s second action would be adjudicated at a

subsequent date. Makhnevich I, at *4.

LEGAL STANDARD

Summary judgment shall be granted to a movant who

demonstrates “that there is no genuine dispute as to any material

fact and the movant is entitled to judgment as a matter of law.”

Fed. R. Civ. P. 56(a). “A fact is ‘material’ for these purposes

when it ‘might affect the outcome of the suit under the governing

law.’” Rojas v. Roman Catholic Diocese of Rochester, 660 F.3d 98,

104 (2d Cir. 2011) (quoting Anderson v. Liberty Lobby, Inc., 477

U.S. 242, 248 (1986)). No genuine issue of material fact exists

“unless there is sufficient evidence favoring the nonmoving party

for a jury to return a verdict for that party.” Anderson, 477

U.S. at 249. “If the evidence is merely colorable, or is not

significantly probative, summary judgment may be granted.” Id. at

249-50 (citations omitted).

When bringing a motion for summary judgment, the movant

carries the burden of demonstrating the absence of any disputed

issues of material fact and entitlement to judgment as a matter of

law. Rojas, 660 F.3d at 104. In deciding a summary judgment

motion, the court must resolve all ambiguities and draw all

reasonable inferences against the moving party. Flanigan v. Gen.

Elec. Co., 242 F.3d 78, 83 (2d Cir. 2001) (citing Matsushita Elec.

Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986)).

A moving party may indicate the absence of a factual dispute by

“showing . . . that an adverse party cannot produce admissible

evidence to support the fact.” Fed. R. Civ. P. 56(c)(1)(B). Once

the moving party has met its burden, the nonmoving party “must

come forward with admissible evidence sufficient to raise a genuine

issue of fact for trial in order to avoid summary judgment.”

Jaramillo v. Weyerhaeuser Co., 536 F.3d 140, 145 (2d Cir. 2008)

(citing Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986)).

Finally, the “mere existence of a scintilla of evidence in support

of the plaintiff's position will be insufficient; there must be

evidence on which the jury could reasonably find for the

plaintiff.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252

(1986).

Because Plaintiff is pro se, the court is obliged to

liberally construe Plaintiff’s submissions and read them “to raise

the strongest arguments they suggest.” Campbell v. We Transport,

Inc., 847 F. App’x 88, 88-89 (2d Cir. 2021) (quoting McLeod v.

Jewish Guild for the Blind, 864 F.3d 154, 156 (2d Cir. 2017)).

Plaintiff’s pro se status, however, “d[oes] not eliminate [her]

obligation to support [her] claims with some evidence to survive

summary judgment.” Nguedi v. Fed. Reserve Bank of N.Y., 813 F.

App’x 616, 618 (2d Cir. 2020). Plaintiff’s “reliance on

‘conclusory allegations’ and ‘unsubstantiated speculation’” will

not suffice. Id. (quoting Fujitsu Ltd. v. Fed. Exp. Corp., 247

F.3d 423, 428 (2d Cir. 2001)).

DISCUSSION

I. Plaintiff’s FDCPA Claim

A. Legal Standard

“Congress enacted the FDCPA to protect against abusive

debt collection practices likely to disrupt a debtor’s life.”

Cohen v. Rosicki, Rosicki & Assocs., P.C., 897 F.3d 75, 81 (2d

Cir. 2018) (quotations and citation omitted). “[W]hether a

communication complies with the FDCPA is determined from the

perspective of the ‘least sophisticated consumer.’” Kolbasyuk

v. Capital Mgmt. Servs., LP, 918 F.3d 236, 239 (2d Cir. 2019)

(citation omitted). “The hypothetical least sophisticated

consumer does not have the astuteness of a Philadelphia lawyer

or even the sophistication of the average, everyday, common

consumer, but is neither irrational nor a dolt.” Ellis v.

Solomon & Solomon, P.C., 591 F.3d 130, 135 (2d Cir. 2010)

(quotations and citation omitted).

B. FDCPA Statute of Limitations

As a threshold matter, FDCPA claims must be brought

within one year of the allegedly violative act or omission. 15

U.S.C. § 1692k(d). An FDCPA violation occurs “when an individual

is injured by the alleged unlawful conduct.” Benzemann v.

Houslanger & Assocs., PLLC, 924 F.3d 73, 83 (2d Cir. 2019); Scavone

v. Frontline Asset Strategies, LLC, 2020 WL 589641, at *5 (“[T]he

latest date upon which the one-year period begins to run is the

date when a plaintiff receives an allegedly unlawful

communication.”) (citation omitted).

Here, the “affirmation” at issue was served upon

Plaintiff via email on August 13, 2020. (ECF 37-29 (“08/11/20

Aff.”) at 2.)4 Plaintiff claims that because she moved for leave

to file a supplemental complaint in July 2021 (in Makhnevich I),

her additional FDCPA claims are not time-barred. (ECF No. 38 (“Pl.

Opp.”) at 18.) Plaintiff was not granted leave to file a

supplemental pleading with the added FDCPA and discrimination

claims, but instead filed a new complaint in the Southern District

of New York on August 17, 2021. (ECF No. 1.) In Makhnevich I,

Plaintiff’s “motion for leave” to file a supplemental complaint

4 Plaintiff alleges that she “received a copy of Bougopoulos’ fraudulent

affirmation” on August 18, 2020. (ECF No. 12 (“Am. Compl.”) ¶ 44.)

Defendant Bougopoulos has produced an email dated August 13, 2020 in support

of his Affidavit (ECF 37-1 (“Bougopoulos Decl.” ¶ 36.)), demonstrating that

the affirmation was emailed to Plaintiff on August 13, 2020. (08/11/20 Aff.

at 1); see, e.g., Couch v. AT&T Services, Inc., 2014 WL 7424093, at * 6

(E.D.N.Y. Dec. 31, 2014) (“[M]ere denials of receipt are insufficient to

rebut the presumption that the emails were received.”) (citing Manigault v.

Macy’s East, LLC, 2009 WL 765006, at *7 (2d Cir. Mar. 25, 2009) (finding that

plaintiff’s denial of receipt of a mailing is insufficient to rebut the

presumption that she received the mailing)). Here, Plaintiff has not

produced any evidence that she received the emailed affirmation on August 18,

2020, i.e., she has not overcome the rebuttable presumption that she received

the August 13, 2020 email with Defendant Bougopoulos’ affirmation on August

13, 2020. As such, despite Plaintiff’s argument, the court deems August 13,

2020 the date that the alleged violation occurred for the purposes of

assessing the timelines of Plaintiff’s FDCPA claim.

(included within her opposition to Defendants’ first summary

judgment motion), was deemed moot as a result of the second action

filed on August 17, 2021. Makhnevich I, 2022 WL 939409, at *4.

Without the actual grant of Plaintiff’s motion for leave to

supplement her Makhnevich I amended complaint and without the

court’s permission to file a second action, the allegations therein

have no legal effect, because the additional FDCPA claims were not

brought within the FDCPA’s one-year statute of limitations. When

a party has filed an untimely amended or supplemental pleading

without the opposing party’s written consent or obtaining prior

leave of court, the amended or supplemental pleading is without

legal effect and may be stricken. See, e.g., Chevron Corp. v.

Donziger, 2013 WL 624648, at *2 n.5 (S.D.N.Y. Feb. 20, 2013)

(citing Murray v. Archambo, 132 F.3d 609, 612 (10th Cir. 1998)

(“Generally speaking, an amendment that has been filed or served

without leave of court or consent of the defendants is without

legal effect.”)); see also U.S. ex rel. Mathews v. HealthSouth

Corp., 332 F.3d 293, 296 (5th Cir. 2003) (“The failure to obtain

leave results in an amended complaint having no legal effect.

Without legal effect, it cannot toll the statute of limitations

period.”); McKenzie v. Obertean, 2021 WL 5286667, at *1-2 (2d Cir.

Nov. 15, 2021) (affirming the district court’s denial of

plaintiff’s motion for leave to file a supplemental complaint and

citing “Fed. R. Civ. P. 15(a)(1)–(2) (except under conditions not

relevant here, ‘a party may amend its pleading only with the

opposing party's written consent or the court's leave’); Fed. R.

Civ. P. 15(d) (‘[T]he court may, on just terms, permit a party to

serve a supplemental pleading’).”

Plaintiff also argues that, regardless of the date that

her motion for leave was filed, equitable tolling applies to her

FDCPA claim by virtue of Executive Order 202.8, issued on March

20, 2020.5 (Pl. Opp. at 18-19.) The Executive Order, issued by

then-Governor Andrew Cuomo, tolled civil litigation deadlines from

March 20, 2020 until April 19, 2020.

Courts in this Circuit have distinguished federal claims

that borrow state statute of limitations (such as claims brought

under 42 U.S.C. § 1983) from federal statutes that provide their

own statutes of limitations, such as the FDCPA. See McDonald v.

City of New York, 2022 WL 1469395, at *3 (E.D.N.Y. May 10, 2022)

(“Because section 1983 does not provide for a federal statute of

limitations, but instead borrows the state statute of limitations,

these courts have determined that the Executive Order [202.8]

applies to section 1983 and other federal cases involving New

York's statutes of limitations”); see also Connolly v. McCall, 254

F.3d 36, 41 (2d Cir. 2001) (per curiam) (“While state law supplies

the statute of limitations for claims under [section] 1983, federal

5 See Exec. Order No. 202-8 (Mar. 20, 2020),

https://www.governor.ny.gov/sites/default/files/atoms/files/EO_202.8.pdf.

law determines when a federal claim accrues.”) (internal citation

and quotation omitted) (emphasis added). Under this reasoning,

the court declines to apply equitable tolling to Plaintiff’s FDCPA

claim when, as stated above, § 1692k(d) of the FDCPA already

provides that a claim must be brought within one year of the

allegedly violative communication.

C. Merits

The only FDCPA-related allegations in Plaintiff’s

Amended Complaint in this action that were not previously asserted

during Makhnevich I involve an affirmation that Defendant

Bougopoulos submitted on August 13, 2020, during the parties’ state

court litigation.6 (ECF No. 12 (“Am. Compl.”) ¶¶ 42-56.) For the

reasons set forth herein, even assuming, arguendo, that

Plaintiff’s new FDCPA claim was timely — which it is not — the

Court finds that, on the merits, there is no genuine issue of

6 In the instant action, the “Factual Allegations” section of the Amended

Complaint regarding the FDCPA substantially duplicates (largely word for

word) the allegations in Plaintiff’s opposition to the motion for summary

judgment in Makhnevich I. (Compare Am. Compl. ¶¶ 24-40, with Makhnevich I,

ECF No. 176-1, at 6-12.) The doctrine of collateral estoppel (issue

preclusion) bars “an issue of ultimate fact [that] has once been determined

by a valid and final judgment” from being “litigated between the same parties

in any future lawsuit.” Schiro v. Farley, 510 U.S. 222, 232 (1994).

The Amended Complaint in this second federal action is dated November 20,

2021. At that time, this court had not yet adjudicated the Defendants’

summary judgment motion against Plaintiff’s largely identical claims in

Makhnevich I. To the extent FDCPA-related allegations in this Amended

Complaint are duplicative of those already adjudicated in Makhnevich I (see

Id.), the court’s Memorandum & Opinion in Makhnevich I precludes them from

being relitigated here.

material fact for trial, and Defendants are thus entitled to

summary judgment.

i. Factual Background

In sum, Plaintiff alleges that over the course of her

attempt to appeal the state court judgment entered against her,

Defendant Bougopoulos submitted a “fraudulent affirmation citing

having difficulty ‘recalling’ the stipulation as signed and

opposing Plaintiff’s motion based on this representation which

Bougopoulos knew or should have known was false.” (Am. Compl. ¶

44.)

Plaintiff alleges, inter alia, that Bougopoulos’

representation was “directed to Plaintiff to misguide her and make

her believe that she could not proceed with an appeal as intended

and thus would have to concede with the fraudulently obtained

alleged debt collection judgment,” “Bougopoulos knew that

[Plaintiff’s motion] would have been denied if the [state] Court

sided with Bougopoulos version of events and lack of ‘recollection’

of the signed stipulation in full,” and “[Plaintiff] felt trapped

and did not know whether she could present the proper sequence of

events to the [state] Court for fair resolution.”7 (Id. ¶¶ 45,

48, 50.)

7 As this court stated in Makhnevich I, Plaintiff has been cautioned that she

could not prevail “on any claims that would undermine the state court’s

determination that the common charges were legitimate,” and that she would

need to show that Defendants “violated the law by the manner in which they

engaged in debt collection or on a basis other than one that disputes the

Plaintiff further alleges that Bougopoulos “retracted

his statement and finally recollected to the previously signed

stipulation just hours before Plaintiff’s Reply was due making it

impossible for Plaintiff to timely submit Bougopoulos [sic]

corrected ‘recollection’ of the stipulation” and that “[a]s a

direct result of Bougopoulos misrepresentation,” her reply was one

day late and rejected by the state court as untimely. (Am. Compl.

¶¶ 51-52.)8 The Court liberally construes these allegations as

most closely asserting a violation under § 1692e, which prohibits

a debt collector from using “any false, deceptive, or misleading

representation or means in connection with the collection of any

debt.” 15 U.S.C. § 1692e.

ii. Legal Standard

“A violation under the FDCPA requires that (1) the

plaintiff be a ‘consumer’ who allegedly owes the debt or a person

legitimacy of the charges as found by the state court.” See Makhnevich I,

2022 WL 939409, at *4. To the extent Plaintiff refers to “illegality of the

purported consent” and “fraudulently obtained alleged debt collection

judgment” in reference to the underlying state court proceedings, this court

reiterates that her unfounded statements cannot sustain her claim in this

action. (Am. Compl. ¶¶ 42, 45.)

8 As an initial matter, the court finds that Plaintiff mischaracterizes the

Bougopoulos affirmation at issue. The Amended Complaint alleges that the

“fraudulent affirmation” cited Bougopoulos’ “difficulty ‘recalling’ the

stipulation as signed.” (Id. ¶ 44.) Mr. Bougopoulos affirms: “[Y]our

affirmant believed (which was true) [the transcript] was settled. However,

because I was not 100% sure, I noted in my affirmation, in good faith, that

to the extent it was not settled, Plaintiff could not receive relief from the

App. Term.” (Bougopoulos Decl. ¶ 36.) Defendants corroborate Mr.

Bougopoulos’ statement by submitting the very affirmation at issue. The

Bougopoulos affirmation in fact states the following: “It is my recollection

that such transcripts were settled on consent. However, to the extent they

were not, Appellant will need to have them settled.” (08/11/20 Aff. at 5.)

who has been the object of efforts to collect a consumer debt, (2)

the defendant collecting the debt must be considered a ‘debt

collector,’ and (3) the defendant must have engaged in an act or

omission in violation of the FDCPA’s requirements.” Felberbaum v.

Mandarich Law Grp., 2022 WL 256507, at *4 (E.D.N.Y. Jan. 27, 2022)

(citation omitted). Here, only the third requirement is in

dispute: whether Defendants in fact “engaged in an act or omission

in violation of the FDCPA’s requirements.”9

As Plaintiff notes, the Supreme Court has held that the

FDCPA “applies to the litigating activities of lawyers.” Heintz

v. Jenkins, 514 U.S. 291, 294 (1995). As this court noted in

Makhnevich I, however, the Heintz Court also acknowledged in dicta

that applying the FDCPA to litigation activities could result in

“anomalies.” Id. at 296; see also Makhnevich I, 2022 WL 939409,

at *13-14. Perhaps to be mindful of those anomalies, “courts in

this Circuit have been reluctant to impose liability under the

FDCPA for statements made . . . during the course of debt

collection litigation.” Gutman v. Malen & Associates, P.C., 512

F. Supp. 3d 428, 431 (E.D.N.Y. Jan. 10, 2021) (citing Lautman v.

2800 Coyle St. Owners Corp., 2014 WL 4843947, at *12 (E.D.N.Y.

Sept. 26, 2014) (collecting cases)). This reluctance is because

“the FDCPA's central purpose of ‘protecting unsophisticated

9 The court relies on its previous findings in Makhnevich I that the first two

requirements were met. See Makhnevich I, 2022 WL 939409, at *5-6.

consumers from unscrupulous debt collectors’ is not implicated in

state court proceedings, where litigants ‘enjoy myriad procedural

and substantive protections from fraudulent and deceptive

practices.’” Lautman, 2014 WL 4843947, at *12.

iii. Application

Even assuming, arguendo, that the allegedly offending

language in the Bougopoulos affirmation was a misrepresentation,

the court finds that it did not constitute a violation of § 1692e.

As an initial matter, the representation was made in an affirmation

in opposition which, by definition, was addressed to the state

court, not to Plaintiff. (08/11/20 Aff.) As a result, it is

already “on the outer bounds of the FDCPA’s applicability.” See

Simmons v. Roundup Funding, LLC, 622 F.3d 93, 96 (2d Cir. 2010)

(“[T]he FDCPA's purpose . . . is not implicated when a debtor is

instead protected by the court system and its officers.”) (emphasis

added). Importantly, Plaintiff has failed to come forward with

sufficient evidence to allow a reasonable jury to conclude that

Defendant Bougopoulos’ representation was material, as is required

in this Circuit. The Second Circuit has held that § 1692e includes

a materiality requirement. See Cohen v. Rosicki, Rosicki &

Assocs., P.C., 897 F.3d 75, 85 (2d Cir. 2018) (“[A] false statement

is only actionable under the FDCPA if it has the potential to

affect the decision-making process of the least sophisticated

[consumer].”) (citation omitted). Indeed, “mere technical

falsehoods that mislead no one are immaterial and consequently not

actionable under § 1692e.” Id. at 86 (internal quotations and

citation omitted); see also Gutman, 512 F. Supp. 3d at 431 (“A

misrepresentation to the state court concerning a procedural

defect that does not mislead plaintiff in her repayment of or

challenge to the debt is thus not a violation of the FDCPA.”). As

noted above, whether a communication complies with the FDCPA’s

requirements “is determined from the perspective of the ‘least

sophisticated consumer.’” Kolbasyuk, 918 F.3d at 239.

Despite Plaintiff’s allegations, the evidence in the

record belies the notion that Bougopoulos’ representation was

“misleading or deceptive as to the nature or legal status of [her]

debt” or that it would have “prevented the least sophisticated

customer from responding to or disputing the action.” Gabriele v.

Am. Home Mortg. Servicing, Inc., 503 F. App'x 89, 95-96 (2d Cir.

2012); see also Derosa v. CAC Fin. Corp., 278 F. Supp. 3d 555, 559

(E.D.N.Y. 2017), aff'd, 740 F. App'x 742 (2d Cir. 2018) (holding

that whether a least sophisticated consumer would be misled is a

question of law and therefore can be decided on summary judgment).

The court finds that even if, arguendo, Defendant

Bougopoulos’ statement is considered akin to “mere technical

falsehoods that [mislead] no one,” the Second Circuit, in the

context of a motion to dismiss, previously has held that such

statements do not constitute valid FDCPA claims. See Gabriele,

503 F.App’x at 95 (citing Donohue v. Quick Collect, 592 F.3d 1027,

1033-34 (9th Cir. 2010) (“In assessing FDCPA liability, we are not

concerned with mere technical falsehoods that mislead no one, but

instead with genuinely misleading statements that may frustrate a

consumer’s ability to intelligently choose his or her

response.”)). In Gabriele, the plaintiff alleged that the opposing

law firm “falsely stated that it had forwarded both exhibits to

the [state] complaint; submitted an affidavit incorrectly

representing that there were no set-offs or counterclaims; filed

an unsigned affidavit; and misrepresented that [plaintiff] was

ineligible for a federal loss mitigation program when in fact he

was under consideration for such a program in mediation.” Id. at

92, 96. The Second Circuit noted that even if those filings were

false, they would not mislead the least sophisticated consumer

“into believing that he had already received an exhibit he had not

received, that he had not filed counterclaims that he had filed

three months before, or that he was not under consideration for a

program he was in mediation to address.”10

10 The Gabriele court noted that the filings, even if false, would not mislead

the least sophisticated consumer “particularly [one] represented by counsel.”

Gabriele, 503 Fed. App’x at 95. To the extent this may be viewed as a

distinction between Gabriele and the instant case, this court finds that the

word “particularly” makes plenty clear that the Second Circuit’s holding

applies to all consumers, not only those represented by counsel. Further,

although Plaintiff here is pro se, she has been actively engaged in

litigation since at least 2015, when Defendant law firm first filed a

complaint against her in state court. By the time of the allegedly violative

communication in August 2020, Plaintiff had proceeded pro se in multiple

proceedings in both state and federal court, including but not limited to:

proceeding pro se in Makhnevich I; in the December 7, 2018 attorney’s fee

Here, Plaintiff has submitted as part of the state court

record the “Appellant’s Affidavit in Support of her Motion for

Administrative Relief and/or Leave to Amend Notice of Appeal,”

which she filed on August 4, 2020. (ECF No. 38-17 at 3, 7.) As

part of her Affidavit, Plaintiff submitted a “Stipulation as to

Correctness of Transcripts” that she and Mr. Bougopoulos signed on

April 2, 2019. (Id. at 15; Am. Compl. ¶ 50.) As stated above,

Defendant Bougopoulos served the affirmation at issue via email to

Plaintiff on August 13, 2020. (08/11/20 Aff. at 1.) The record

shows that very soon after Plaintiff became aware of Bougopoulos’

alleged misrepresentation — whether it was August 13, 2020, as the

08/11/20 Affirmation shows, or whether it was August 18, 2020, as

¶ 44 of the Amended Complaint alleges — she requested to adjourn

the return date for more time to file her reply. Plaintiff’s

adjournment request is evident in an email Plaintiff submitted as

part of the record, showing that on August 26, 2020, the state

court granted Plaintiff’s letter request for more time to reply,

and ordered Plaintiff to re-serve and re-file by September 2, 2020.

(ECF No. 38-22 at 1.) A misrepresentation is especially not

“material” when the consumer — as is the case here — successfully

sought and received redress from state court for the alleged wrong.

hearing in state court (ECF No. 38-17 at 22); and proceeding pro se in yet

another, unrelated, action against other defendants in the Southern District

of New York. See Makhnevich v. MTGLQ Investors, L.P., 2021 WL 3406484

(S.D.N.Y. Aug. 4, 2021).

Cf. Gutman, 512 F. Supp. 3d. at 431 (holding that the alleged

misrepresentation was “not material” because plaintiff

“successfully challenged the action by moving to vacate the default

judgment, which defendant agreed to do”).

Even though Plaintiff alleges that Bougopoulos’

representation was “directed to Plaintiff to misguide her and make

her believe that she could not proceed with an appeal as intended

and thus would have to concede with the fraudulently obtained

alleged debt collection judgment,” she has failed to come forward

with sufficient evidence that she was misguided or did actually

believe that she could not proceed with an appeal as intended.

See Gutman, 512 F. Supp. 3d. at 432 (noting that “the evidence

does not suggest” that the alleged misrepresentation at issue

“misled or deceived [the plaintiff] as to the legal status of the

debt or prevented her from responding to or disputing the action”).

Plaintiff’s allegation that the misrepresentation caused her to

“feel[] trapped” and unsure as to “whether she could present the

proper sequence of events to the [state] Court for fair resolution”

is, in fact, belied by the evidence she herself has submitted.

The court also notes the rationale that “if a consumer

is aware of the false statement, then such a person cannot be

misled by that statement he or she knows to be false.” Jensen v.

Pressler & Pressler, LLP, 2014 WL 1745042, at *5 (D.N.J. Apr. 29,

2014), aff'd sub nom., Jensen v. Pressler & Pressler, 791 F.3d 413

(3d Cir. 2015) (citing Kromelbein v. Envision Payment Sols., Inc.,

2013 WL 3947109, at *9 (M.D. Pa. Aug. 1, 2013) (“Even the least

sophisticated consumer would not be misled by a statement that he

knows to be false.”)). Finally, even a pro se plaintiff “cannot

simply rely on the allegations in [the] complaint to withstand

summary judgment.” See Pierre v. Air Serv. Sec., 2016 WL 11396816,

at *4-5 (E.D.N.Y. July 28, 2016). As such, Plaintiff has not come

forward with sufficient evidence to allow a reasonable jury to

find in her favor, and the court finds, as a matter of law, that

the lone representation at issue was not a violation under § 1692e,

or § 1692f, of the FDCPA.11

11 The court repeats that it construes the allegations relating to the

Bougopoulos affirmation as arising under § 1692e. Plaintiff only cites § 1692e

twice in her Opposition, both times without making any actual arguments related

to § 1692f. (Pl. Opp. at 19-20 (“Section 1692f prohibits debt collectors from

using any ‘unfair or unconscionable means to collect or attempt to collect any

debt.’”); Id. at 23 (“Defendants violated the FDCPA, §§ 1692e and 1692f, by

making false, deceptive, and misleading representations and engaging in unfair

and unconscionable practices.”).)

To the extent there may be a § 1692f claim embedded in the Amended Complaint,

the court finds there is no genuine issue of material fact requiring a trial on

such a claim. Section 1692f prohibits a debt collector from using “unfair or

unconscionable means to collect or attempt to collect any debt.” 15 U.S.C. §

1692f. This provision “is aimed at practices that give the debt collector an

unfair advantage over the debtor or are inherently abusive.” Wagner v. Chiari

& Ilecki, LLP, 973 F.3d 154, 166 (2d Cir. 2020) (citation omitted). Although

§ 1692f and other FDCPA provisions are not “mutually exclusive,” Arias v.

Gutman, Mintz, Baker & Sonnenfeldt LLP, 875 F.3d 128, 135 (2d Cir. 2017),

Plaintiff does not “identify any misconduct beyond that which [she] assert[s]

violate[s] other provisions of the FDCPA.” Scaturro v. Northland Grp., Inc.,

2017 WL 415900, at *4 (E.D.N.Y. Jan. 9, 2017) (citation omitted). In any event,

having reviewed the record, the court concludes that, as in Makhnevich I,

Plaintiff has not come forward with sufficient evidence for a reasonable jury

to find that Defendants used any unfair or unconscionable means to collect her

debts to the Condo Board.

Finally, Plaintiff alleges that she “incurred additional

costs, fees, travel fees and process service fees” as a result of

Bougopoulos’ alleged misrepresentation. (Am. Compl. ¶ 56.) The

FDCPA, however, “does not guarantee consumers an efficient or

thrifty resolution of their putative debt.” Gabriele, 503 Fed.

Appx. at 95.12 Neither is the FDCPA an appropriate vehicle for

Plaintiff to recover state court litigation costs where she did

not prevail.

II. ADA Title III Claim

A. Factual Background

On April 18, 2018, the state court awarded summary

judgment to the Condo Board against Plaintiff as to liability for

Plaintiff’s unpaid condominium common charges and fees. (Pl.’s

56.1 ¶ 3; ECF No. 37-20 at 3-6.) After a December 2018 jury trial

and an attorney’s fees hearing conducted in two parts, the state

court ordered that judgment be entered against Plaintiff “in the

total amount of $16,264.62, together with statutory costs and

12 Plaintiff also alleges she experienced “additional episodes of excessive

worry, severe headaches, in addition to stomach aches” as she awaited the

state court’s decision on whether she could re-serve her reply with Mr.

Bougopoulos’ corrections. (Am. Compl. ¶ 55.) This court construes those

allegations as going to the issue of whether Plaintiff has sufficient Article

III standing to bring an FDCPA claim. Just as the court found in Makhnevich

I, the court again finds that Plaintiff has standing, based on her

allegations in the Amended Complaint in the instant action. See TransUnion

LLC v. Ramirez, 141 S. Ct. 2190, 2200 (2021) (“If a defendant has caused

physical or monetary injury to the plaintiff, the plaintiff has suffered a

concrete injury in fact under Article III.”); see also, e.g., Benjamin v.

Rosenberg & Assocs., 2021 WL 3784320, at *5-8 (D.D.C. Aug. 26, 2021) (finding

FDCPA claims adequately pleaded based on allegations of headaches and stomach

aches, among other things); Makhnevich I, 2022 WL 939409, at *4 n.6.

statutory interest to commence from July 1, 2017.” (ECF No. 37-

21 at 3; see also Pl.’s 56.1 ¶ 4.) That Decision & Order noted

that the “attorneys’ fees due and owing associated with this matter

will be issued in a separate order and judgment after an attorney

fee hearing has concluded.” (ECF No. 37-21 at 3.)

i. Plaintiff’s First Adjournment Request

The attorney’s fees hearing was initially held on

December 7, 2018 with all parties present. The hearing was then

adjourned until December 11, 2018. (Pl.’s 56.1 ¶¶ 4-5; ECF No.

38-17 at 22-23, 80.) At 10:22 p.m. on Monday, December 10, 2018

— the night before the scheduled hearing — Plaintiff emailed Becky

Wu (Court Attorney to Judge Richard J. Montelione, the presiding

state court judge) and Defendant Bougopoulos, requesting an

adjournment of the December 11th hearing due to a doctor’s order.

(ECF No. 37-22 at 2.) Plaintiff attached a doctor’s note that

stated that Plaintiff had been seen for a “sick visit” on December

10th, and that she was “able to return to work” with “no

restrictions” on December 13, 2018. (Id. at 6.) Mr. Bougopoulos

responded to the email chain, apparently consenting and offering

his availabilities for a rescheduled hearing, “if Judge agrees to

adjourn.” (ECF No. 37-23 at 3.) On the morning of December 11,

2018, Ms. Wu emailed, in part: “Dear Ms. Mekhenvich [sic]: Subject

to the consent of Mr. Bougopoulos, Judge Montelione has asked me

to contact you in order to schedule a conference call with you and

Dr. Agnicha Muzeau to inquire as to why you cannot attend the

scheduled hearing today. Judge Montelione does not accept the

general description of ‘sick visit’ from a physician who is not

your primary care doctor. Failure to contact chambers in order to

schedule this phone call will result in the hearing proceeding as

schedule.” (Id. at 2-3.) Mr. Bougopoulos replied that he had “no

objection to the court contacting Ms. Makhnevich for the purposes

below.” (Id. at 2.) The hearing was then adjourned to December

20, 2018 at 2:15 p.m. and marked “final” in bold. (Pl.’s 56.1 ¶

7; ECF No. 37-23 at 2.)

ii. Plaintiff’s Second Adjournment Request

On December 19, 2018 at 5:33 p.m. (the day before the

rescheduled hearing was supposed to take place) Plaintiff emailed

Ms. Wu and Mr. Bougopoulos stating, in the third person: “Stacy

Makhnevich is ordered full leave as a result of pregnancy

complications.” (ECF No. 37-24 at 2.) Plaintiff attached a

document to that email labeled “Medical Excuse Note” from Essex

Women’s Health Center. (Id. at 5.) The note, dated December 17,

2018, stated: “This certifies that Stacy Makhnevich [has been]

seen in this office for professional medical attention [on December

17, 2018 at 1:00 p.m.]. Please excuse patient from [work due to

pregnancy] from 12-17-18 to 1-8-19. We urge employers and schools

to consider this as excused absence.” (Id. at 3-5.) On the basis

of that note, Plaintiff requested that the court “[p]lease adjourn

the hearing from December 20th” to an offering of dates in mid-

to-late January 2019. (Id. at 2.)

In an email sent to both Ms. Wu and Ms. Makhnevich on

December 19, 2018 at 6:09 p.m., Mr. Bougopoulos responded as

follows:

Dear Ms. Wu:

Please be advised that it appears from email

and note in Ms. Makhnevich's email below that

she received the purported physician directive

(though no name is listed) on 12/17 /18, which

was Monday of this week. However, it is only

on 12/19/18 at approximately 5:33pm (2 days

later), that Ms. Mahnevich has decided to make

her request for an adjournment, the evening

before the 12/20/18 court date which the Court

marked "final" (see screenshot below).

Ms. Makhnevich could have made the request to

adjourn the court date for tomorrow

immediately on 12/17 /18 to reduce any stress

on the Court and myself, but apparently chose

not to. I will remind the Court that Ms.

Makhnevich also requested an adjournment from

the 12/11/18 [sic] court via email on 12/10/18

at approximately 10:30pm, though at least that

medical letter was dated on the same date the

request was made.

Thus, under the circumstances, I cannot

consent to the adjournment and believe the

Court should deny the request and allow the

legal fees hearing to proceed.

Be further advised that I will be in our office

in Yonkers in the morning tomorrow and would

appreciate the Court's decision on Ms.

Makhnevich's adjournment request, whichever

way the Court decides, if possible, by 11am.

This is requested to try to reduce

inconvenience to myself for any (un)necessary

travel to Brooklyn.

If the Court grants the adjournment, I am

available as of now [i]n January: 1/10 (all

day); 1/17 (after 1pm), 1/22 and 1/23 (all

day). February I am available 2/4 and 2/5 (all

day)[.]

(ECF No. 37-25 at 3-4.)

At 9:51 a.m. on December 20, 2018, Ms. Wu sent the

following email to both Defendant Bougopoulos and Plaintiff:

Dear Ms. Makhnevich,

You are directed to call chambers (at 347-404-

9097) regarding your adjournment request at

10:15 a.m. today. The Judge requests an

authorization from you in order to speak to

your physician regarding this medical note, as

well as the name of the physician and an

explanation as to why this request was not

made at an earlier time. If you do not call

chambers with this information at 10:15 a.m.

your adjournment request will be denied. Note

that the call to chambers is not a guarantee

that this matter will be adjourned but is for

consideration in light of the circumstances.

You are reminded that [sic] previous time that

you requested an off-hours adjournment request

the night before the hearing, you did not

respond to my email or a call from chambers

the morning of the hearing but the Judge

allowed the adjournment as a courtesy.

Mr. Bougopoulos, If this matter is adjourned,

you will be notified expediently.

(Id. at 3.)

In an email sent at 11:11 a.m. that same day, Mr.

Bougopoulos stated: “I have not heard back from the Court and was

following up to see if a decision was made on Ms. Makhnevich’s

adjournment request.” (Id. at 2.) Ms. Wu replied shortly

thereafter at 11:25 a.m.: “Dear Parties, As we have not heard any

further correspondence or any further communication from Ms.

Makhnevich, a telephone call or otherwise, as directed in the prior

email, at this juncture the continued hearing will proceed as

scheduled. Please be guided accordingly.” (Id.)

At 6:00 p.m. that day, Plaintiff Makhnevich emailed Ms.

Wu (copying Mr. Bougopoulos) as follows:

Attn: Chambers of Hon Richard Montelione

I was having morning sickness all morning and

afternoon. Wasnt able to check my emails. Did

not receive a single phone call from neither

the Chambers, nor the Court, nor Mr

Bougopoulos.

Due diligence was exercised in this matter of

complicated pregnancy to be treated as

temporary disability. The arrangements were

made to alert the court via email and

facsimile (with confirmation receipt on

12/19/2018).

Specific instructions were provided by a multi

specialty high risk obstetrics practice, Essex

Women's Center, pertaining to pregnancy and

"excused absence” with specified dates.

While the Court's decision and discretion are

understood, it's, no doubt, Pregnancy

Discrimination. Thank you for you [sic] time

and consideration[.]

(ECF No. 37-26 at 2.)

The attorney’s fees hearing thus proceeded as scheduled

on December 20, 2018, and an order was ultimately issued granting

attorney’s fees to the Condo Board. (Pl.’s 56.1 ¶ 10.) Plaintiff

now alleges that Defendants’ withholding of consent to her second

request for adjournment constituted a violation of Title III of

the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et

seq. (Am. Compl. ¶¶ 63-81, 84-91.) The court finds that Plaintiff

has failed to raise a genuine issue of material fact from which a

jury could infer disability-based discrimination, and thus grants

summary judgment for Defendants on Plaintiff’s ADA claim.

B. Threshold Issues

Before an assessment of the merits, the court will

address several issues.

i. Plaintiff’s Objection regarding Local Rule 12.1

Defendants’ motion is brought under Fed. R. Civ. P. 12,

governing motions to dismiss, as well as Fed. R. Civ. P. 56,

governing summary judgment. Plaintiff submitted a letter motion

objection “Regarding Defendants’ Failure to Comply with Local Rule

12.1” on July 17, 2021, almost a week after the motion was fully

briefed. (ECF No. 40.) Plaintiff’s objection asserts that

Defendants’ motion was “unexpectedly and improperly served and

filed as no motion to dismiss was discussed during the pre-motion

conference conducted on February 28th, 2022. During [Plaintiff’s]

discussion of the events with an unrelated party [a] few days ago,

Plaintiff discovered that Defendants failed to abide by Local Civil

Rule 12.1, which requires that notice is given to pro se litigants

opposing a Rule 12 motion supported by matters outside the

pleadings.” (Id. at 1.)

First, it is well-established that a “pro se plaintiff

who is aware of the rights that Local Rule 12.1 is designed to

give notice of, and who is not prejudiced by the defendants’

failure to comply with the Rule, is not entitled to prevail [on a

motion to dismiss] on the basis of the defendants’ failure.”

Francis v. Accubanc Mortgage Corp., 2020 WL 2086038, at *6

(S.D.N.Y. Apr. 30, 2020) (citing Carvel v. Franchise Stores Realty

Corp., 2009 WL 4333652, at *11 (S.D.N.Y. Dec. 1, 2009)). Plaintiff

here has clearly been aware of her rights. As Defendants point

out, Plaintiff raised the argument herself in another case that

she filed, Makhnevich v. MTGLQ Investors, L.P., 2021 WL 3406484

(S.D.N.Y. Aug. 4, 2021). (See also Plaintiff’s Opposition to

Defendants’ MTGLQ Investors L.P. and Selene Finance L.P. Motion to

Dismiss, No. 19-cv-00072-AT-SN (S.D.N.Y. Dec. 21, 2020), ECF No.

90 at 3, 5.) Plaintiff is clearly aware of the rights about which

Local Rule 12.1 is designed to provide notice.

Plaintiff also argues, inter alia, that she was “further

prejudiced as she only has limited number of pages that she

reserved for her opposition to summary judgment” and “has limited

time to research additional statutes and case laws pertaining to

a motion to dismiss.” Page limits imposed by courts are common

course in litigation, and pro se litigants do not have unlimited

time to respond, particularly when Plaintiff has had previous

experience opposing a Rule 12 motion to dismiss in Makhnevich v.

MTGLQ Investors, L.P., 2021 WL 3406484 (S.D.N.Y. Aug. 4, 2021).

Cf. Jones v. Greninger, 188 F.3d 322, 325 (5th Cir 1999) (“The

right of access to the court does not afford prisoners unlimited

access to prison law libraries.”) (internal quotations and

citation omitted). Moreover, Defendants here served Plaintiff

with an appropriate Local Rule 56.1 statement and Local Rule 56.2

Notice for pro se litigants. Thus, Plaintiff received appropriate

notices in connection with Defendants’ summary judgment motion.

Finally, even if Plaintiff had successfully demonstrated that the

lack of Rule 12.1 Notice prejudiced her, her objection is

ultimately moot for the reasons explained below.

ii. Defendants’ Rule 12(b)(1) Motion13

Defendants’ Rule 12(b)(1) motion involves Plaintiff’s

administrative Complaint, filed with the New York State Division

of Human Rights (NYSDHR) on December 17, 2021.

13 Defendants argue that the NYSDHR Complaint and Order bars this court from

hearing Plaintiff’s New York State and NYC Human Rights Claims. (ECF 37-41

(“Defs. Mem.”) at 13-14.) As the court declines to exercise supplemental

jurisdiction over these claims, infra, the court declines to address this

issue.

Separately, Defendants also moved to dismiss Plaintiff’s FDCPA claim (as

alleged in Plaintiff’s First Cause of Action) for failure to state a claim

pursuant to Fed. R. Civ. P. 12(b)(6), based on the “other suit pending”

doctrine. (ECF No. 37 at 1.) The court deems the Defendants’ motion moot,

as the court has already granted Defendants summary judgment on Plaintiff’s

additional FDCPA claim.

On December 9, 2021, Defendants filed an Amended Answer

with Counterclaim in the instant action, in response to Plaintiff’s

Amended Complaint. In their Counterclaim, Defendants sought

reasonable attorneys’ fees incurred as a result of defending

against Plaintiff’s discrimination claims. (ECF No. 13 at 8-9.)

Plaintiff alleged in her NYSDHR Complaint that Defendants’

counterclaim somehow constituted “retaliation.”14 (ECF No. 37-34

(“NYSDHR Compl.”) at 6, 13.) Though Plaintiff filed the NYSDHR

Complaint as a purported retaliation claim, it is, in fact, a copy-

and-paste duplicate of most of the discrimination-related

allegations in the instant action’s Amended Complaint. (Compare

NYSDHR Compl. at 6-13, with Am. Compl. ¶¶ 63, 66-80.) In addition,

Plaintiff responded to the NYSDHR form question “In what county or

borough did the violation take place?” with “[W]estchester;

immediate refusal of accommodations via email.” (NYSDHR Compl. at

3.) Further, in the section of the NYSDHR form entitled “Acts of

alleged discrimination: What did the person/company you are

complaining against do? Check all that apply,” Plaintiff selected:

• denied access to public accommodation

• discriminatory advertisement, communication, or notice

• denied equal advantages, facilities, and privileges of

public accommodation

• denied reasonable accommodation for disability

14 The court notes that Plaintiff also attached part of her NYSDHR Complaint

as her exhibit, ECF No. 38-2. Plaintiff’s exhibit does not include the

“Complaint Form” that she completed along with her written NYSDHR Complaint.

As such, the court will cite to Defendants’ exhibit, ECF No. 37-34, which

provides the complete form and NYSDHR Complaint.

• harassed/intimidated (other than sexual harassment) on

any basis indicated above

(Id. at 4.)

In a “Determination and Order After Investigation,”

dated January 12, 2022, NYSDHR determined there was “NO PROBABLE

CAUSE to believe that the respondents have engaged in or are

engaging in the unlawful discriminatory practice complained of”

and that the “evidence does not support a probable cause finding

because Complainant has failed to state a claim under the Human

Rights Law. The record shows that Respondents and Complainant are

parties to litigation before the federal court.15 In that capacity,

Respondents are not acting in any capacity as a place of public

accommodation. The Human Rights Law does not bar litigants from

raising objections to an opposing party’s request for a court

adjournment.” (ECF No. 37-35 (“DHR Order”) at 3-4.) The court

will now address Defendants’ arguments related to Plaintiff’s

NYSDHR Complaint.

First, Defendants argue that the Rooker-Feldman doctrine

precludes the court from considering Plaintiff’s discrimination

claims. (ECF No. 37-41 (“Defs. Mem.”) at 14-15.) The Rooker-

Feldman doctrine precludes federal court jurisdiction over “cases

brought by state-court losers complaining of injuries caused by

15 The erroneous reference by the NYSDHR Determination and Order to “federal

court,” rather than “state” court,” is discussed infra.

state-court judgments rendered before the district court

proceedings commenced and inviting district court review and

rejection of those judgments.” Gribbin v. N.Y. State Unified Ct.

Sys., 838 Fed. Appx. 646, 647 (2d Cir. 2021) (citing Exxon Mobil

Corp. v. Saudi Basics Indus. Corp., 544 U.S. 280, 284 (2005)).

This doctrine applies where the federal-court plaintiff: (1) “lost

in state court,” (2) “complains of injuries caused by a state-

court judgment,” (3) “invites the district court to review and

reject that state-court judgment,” and (4) commenced the district

court proceedings after the state-court judgment was rendered.

Vossbrinck v. Accredited Home Lenders, Inc., 773 F.3d 423, 426 (2d

Cir. 2014) (internal quotation and citation omitted).

Defendants argue that Rooker-Feldman bars this court

from allowing Plaintiff’s discrimination claims to proceed,

because the basis of those claims is Defendants’ denial of consent

to adjournment in the state court case. (Defs. Mem. at 14-15.)

The court, however, finds that Plaintiff’s discrimination claims

do not invite this court to review and reject the underlying state

court judgment. The court agrees with Plaintiff’s

characterization that she is asking the court “to consider whether

her rights were violated before/during the proceedings and whether

she is entitled to damages for those violations,” and that she is

not asking this court to “‘review and reject’ the state court’s

judgment awarding Defendants over $21,047 in attorney fees.” (Pl.

Opp. at 15.)

Second, Defendants argue that Plaintiff’s ADA claim is

barred by collateral estoppel and/or res judicata based on the

NYSDHR’s Decision & Order described above. (Defs. Mem. at 24-28.)

The doctrine of collateral estoppel (issue preclusion) bars “an

issue of ultimate fact [that] has once been determined by a valid

and final judgment” from being “litigated between the same parties

in any future lawsuit.” Schiro v. Farley, 510 U.S. 222, 232

(1994). The similar but separate doctrine of res judicata (claim

preclusion) provides that “a final judgment on the merits of an

action precludes the parties or their privies from relitigating

issues that were or could have been raised in that action.” Burgos

v. Hopkins, 14 F.3d 787, 789 (2d Cir. 1994). Additionally, under

New York State law, res judicata also bars “a later claim arising

out of the same factual grouping as an earlier litigated claim

even if the later claim is based on different legal theories or

seeks dissimilar or additional relief.” Id. at 790.

The NYSDHR Decision & Order states: “Complainant sought

an adjournment of the scheduled hearing in federal court grounded

in reasons related to her pregnancy and submitted a medical note

to support that request. Respondents questioned the medical note

and refused to consent to the adjournment. The federal court

nonetheless granted Complainant’s request for the adjournment.”

As demonstrated by the record and as explained in detail above,

Plaintiff’s second adjournment request at issue in this federal

action occurred in state, not federal, court proceedings, and the

state judge, Judge Montelione, did not grant said request. This

court refrains from deeming the NYSDHR Order incorrect or unsound,

but notes that, on its face, the Order does not refer to the state

court proceedings underlying Plaintiff’s discrimination-related

claims. As such, the court finds that neither collateral estoppel

nor res judicata bars this court from proceeding to assess the ADA

claim on the merits.

As the court denies Defendants’ motion to the extent it

is brought pursuant to FRCP 12(b)(1) and 12(b)(6), the court finds

that Plaintiff’s 12.1 notice argument is moot, and now proceeds to

its summary judgment analysis of Plaintiff’s ADA claim.

C. Merits

Title III of the ADA prohibits discrimination against

people with disabilities in the context of “public

accommodations.” “No individual shall be discriminated against on

the basis of disability in the full and equal enjoyment of the

goods, services, facilities, privileges, advantages, or

accommodations of any place of public accommodation by any person

who owns, leases (or leases to), or operates a place of public

accommodation.” 42 U.S.C. § 12182(a). Based on the record, the

court holds that a reasonable factfinder could not find in favor

of Plaintiff on her claim that Defendants’ withholding of consent

on her second adjournment request constitutes a Title III

violation.

To establish a violation of Title III of the ADA, a

plaintiff must establish (1) that he or she is disabled within the

meaning of the ADA; (2) that the defendants own, lease, or operate

a place of public accommodation; and (3) that the defendants

discriminated against the plaintiff within the meaning of the ADA.

Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008)

(emphasis added) (internal quotations omitted); see also Powell v.

Nat’l Bd. of Med. Examiners, 364 F.3d 79, 85 (2d Cir. 2004)

(formulating prong three as: “that [the plaintiff] was denied the

opportunity to participate in or benefit from defendants’

services, programs, or activities, or was otherwise discriminated

against by defendants, by reasons of [his or her] disability”)

(internal citation and quotations omitted). As to the first

requirement, Plaintiff alleges that she had a “disability during

pregnancy [that] limited [a] major life activity within the

meaning” of the ADA. (Am. Compl. ¶ 90); see 42 U.S.C. §

12102(1)(A). As the parties do not dispute that Plaintiff was

disabled within the meaning of the ADA, the court will proceed to

the rest of its Title III analysis.

Despite the complicated history of the underlying events

above, whether Plaintiff has established that Defendants

discriminated against her within the meaning of the ADA can

ultimately be summarized by one question: Does Title III require

the defendant law firm to consent to the plaintiff’s adjournment

request because the plaintiff has a disability within the meaning

of the ADA, despite the fact that the state court denied the

plaintiff’s adjournment request, and despite the fact that the law

firm was in adverse proceedings against the Plaintiff, and thus

clearly not operating as “a public accommodation” in that context?

The court finds that Title III imposes no such tortured

requirement.

Plaintiff argues that Defendants were bound by Title III

with respect to her adjournment request because, under §

12181(7)(F), an “office of an accountant or lawyer” is considered

“public accommodations for purposes of” Title III. Although

Defendants (as a law firm and a lawyer of that firm) may be viewed

as “operating a place of public accommodation” under the ADA,

Plaintiff’s argument fails because Defendants were clearly not

operating as “a place of public accommodation” in the specific

context of the state court litigation of brought by Defendants on

behalf of their clients against Plaintiff, and thus, Plaintiff

cannot establish that defendants discriminated against her “within

the meaning of the ADA.” See Roberts, 542 F.3d at 368 (emphasis

added).

A plain reading of the statutory text alone makes clear

that “Title III prohibits a place of public accommodation from

discriminating on the basis of disability when providing access to

whatever goods and services [are] ordinarily provided at that place

of public accommodation.” See, e.g., Dominguez v. Banana Republic,

LLC, 2020 WL 1950496, at *6 (S.D.N.Y. Apr. 23, 2020). Plaintiff

here alleges that “[u]pon information and belief, similar

rescheduling accommodations have been routinely provided to non

disabled parties upon 2-3 of their consecutive requests without

any requests for judicial review and without any objections by the

Defendants.” (Am. Compl. ¶ 79.) To the extent Plaintiff believes

Defendants were obligated to consent to her second adjournment

request because she believes they “routinely” provide them to non-

disabled parties, this bears no merit nor any relevance to the

question of law here.16 Plaintiff’s own submitted evidence

demonstrates as much.

In support of her position, Plaintiff relies on a

settlement agreement between the United States and a law firm,

Peroutka and Peroutka, P.A. (“Peroutka”). (ECF No. 38-16.) The

settlement resolved an investigation by the Department of Justice

(“DOJ”) under Title III, conducted after complaints by two deaf

individuals. Complainants had alleged Peroutka violated Title III

16 The court also notes that repeated invocation by Plaintiff of the words

“accommodate” or “accommodation” are obviously insufficient to bring

Plaintiff’s claim within the ambit of the ADA.

“by refusing to take relay calls when the complainants called to

resolve disputes involving alleged unpaid debts.” The Settlement

Agreement states:

Peroutka acknowledged that it had directed its

employees to refuse to accept calls made by

individuals with disabilities through relay

services and, instead, directed the callers to

call back when a manager was available.

Peroutka employees followed these

instructions, refusing to take relay calls and

telling callers using the relay service they

had to call back when a manager was available

to take the call.

(Id. at 1-2.)

Because it was operating as a law firm and collection

agency while receiving those calls, Peroutka’s receipt of those

calls was obviously a good, service, facility, privilege,

advantage, or accommodation within the meaning of § 12182(a).

Because, in its capacity as a collection agency and law firm,

Peroutka accepted calls made by non-disabled individuals, its

refusal to then accept calls from disabled individuals using relay

services was a policy implemented “on the basis of disability.”

The most obvious good or service that Defendants here

would provide is legal services.17 It is obvious, however, that

17 As Plaintiff notes, the ADA’s protections reach beyond physical spaces,

e.g., the physical office of a law firm such as Defendant Novick Firm. See

Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28, 32 (2d Cir. 1999) (noting

that Title III’s mandate “suggests to us that the statute was meant to

guarantee [disabled individuals] more than mere physical access”); Dominguez,

2020 WL 1950496, *6 (noting that many courts have held that websites are

places of public accommodation for the purposes of Title III and “read the

word ‘place’ broadly to include every ‘sales or rental establishment’ and

‘service establishment’”); see also Del-Orden v. Bonobos, Inc., 2017 WL

Defendants were not providing a good or service to Plaintiff when

it was in adverse litigation proceedings brought by Defendants

against Plaintiff. Defendants’ refusal to consent to Plaintiff’s

second adjournment request during litigation against Plaintiff is

not remotely akin to law firms refusing to accept calls from

disabled individuals regarding unpaid debts; or to an insurance

company refusing to issue joint life insurance policies to disabled

individuals; or to a website that sells goods but has accessibility

barriers for the blind and visually-impaired. (See ECF No. 38-

16); see also Pallozzi v. Allstate Life Ins. Co., 198 F.3d 28 (2d

Cir. 1999); Martinez v. Gutsy LLC, 2022 WL 17303830, at *1, 7

(E.D.N.Y. Nov. 29, 2022) (on a motion to dismiss, holding that

plaintiff plausibly stated a claim of discrimination due to

allegedly inaccessible website); Del-Orden v. Bonobos, Inc., 2017

WL 6547902, at *1 (S.D.N.Y. Dec. 20, 2017) (same).

Such cases, among many others, clearly demonstrate that

Title III requires the non-discriminatory provision of goods,

services, programs, or activities when the ADA-covered place of

business or entity is, in fact, actually providing those goods,

services, programs, or activities. It would be both an unsupported

and illogical reading of Title III to hold that simply because a

6547902, at *1 (S.D.N.Y. Dec. 20, 2017) (“The Court today joins the growing

number of courts to hold that commercial websites qualify as ‘public

accommodations’ within the meaning of the ADA, such that the ADA’s

protections extend to blind persons who claim discriminatory access to

websites.”).

law firm is statutorily defined as a place of public accommodation,

Title III somehow extends to conduct completely unrelated to the

provision of goods, services, programs, or activities that law

firms provide to the public — e.g., consenting to an adjournment

request made by a legal adversary. Although the court is

sympathetic to Plaintiff’s difficulties during her pregnancy,

consent to an opposing party’s adjournment request is, simply put,

“not the kind of reasonable modification in policies that is

required under the ADA to accommodate persons with disabilities.”

Cf., Maxwell v. NYU, 407 Fed. Appx. 524, 528 (2d Cir. 2010)

(holding that disbursement of financial aid to a student who has

been determined to be ineligible under federal law is not the kind

of “reasonable modification” required under the ADA) (internal

citation and quotations omitted). Finally, the court also notes

that — beyond the fact that the underlying events took place during

the parties’ adversarial legal proceedings — it is undisputed that

“Defendants have never represented Plaintiff nor was she ever a

prospective client of either Defendant.” (Pl.’s 56.1 ¶ 25.) The

two parties have never been, nor foreseeably will be, in a position

where Plaintiff will be the recipient of Defendants’ legal

services, such that an allegedly discriminatory act by Defendants

against Plaintiff would trigger Title III protections.

In addition to the grounds articulated above, the court

also finds that Plaintiff has failed to raise a genuine issue of

material fact regarding her ADA claim because Plaintiff has

“offered no reason to believe” that Defendants’ refusal to consent

to a second adjournment was done “on the basis of” her disability.

42 U.S.C. § 12182(a); see, e.g., Maxwell, 407 Fed. Appx. at 527-

58 (in affirming a grant of summary judgment, holding that there

was “no error” in district court’s determination that plaintiff

failed to raise a genuine issue of material fact with respect to

his Title III claim because plaintiff “offered no reason to

believe” that defendant’s actions at issue were taken “on the basis

of” plaintiff’s alleged disabilities).

As described above, Defendant Bougopoulos’ December 19,

2018 email explains in detail that his grounds for refusal to

consent were due to Plaintiff’s two-day delay in requesting a

second adjournment from the state court, and the fact that

Plaintiff had already requested and received a first and “final”

adjournment from the state court on December 11, 2018, with

Defendants’ consent (consent, which, Plaintiff does not appear to

acknowledge nor concede in her Opposition nor the Amended

Complaint). (ECF No. 37-25 at 3-4.) In his Declaration in this

federal action, Defendant Bougopoulos also noted that he “was aware

of the long, tortured history of [the state court] case.”

(Bougopoulos Decl. ¶ 31; ECF No. 37-15; ECF No. 37-20.) These

explanations sufficiently demonstrate that Defendants’ withholding

of consent was not on the basis of Plaintiff’s pregnancy. See

Powell v. Nat’l Bd. of Medical Examiners, 364 F.3d 79, 87 (2d Cir.

2004) (on affirming a grant of summary judgment, that plaintiff

“produced no proof that was discriminated against . . . on account

of her alleged disability”).18

III. Rule 56(d) Discovery

As part of her opposition to Defendants’ motion,

Plaintiff filed a signed affidavit in support of her request for

discovery pursuant to Federal Rule of Civil Procedure 56(d).

(ECF No. 38-24.) For the reasons explained below and in light

of the court’s analysis above, Plaintiff’s request is denied.

A. Legal Standard

To request discovery when faced with a motion for summary

judgment under Rule 56(d), “a party must file an affidavit

describing: (1) what facts are sought and how they are to be

obtained; (2) how these facts are reasonably expected to raise a

genuine issue of material fact; (3) what efforts the affiant has

made to obtain them; and (4) why the affiant's efforts were

unsuccessful.” UBS AG, London Branch v. Greka Integrated, Inc.,

2022 WL 2297904, at *3 (2d Cir. June 27, 2022) (citation omitted).

B. Application

Plaintiff’s affidavit states that she seeks the

following:

18 The record also demonstrates that in Defendant Bougopoulos’ December 19,

2018 email, he provides his availabilities in January 2019 for the hearing,

“[i]f the Court grants adjournment.” (ECF NO. 37-25 at 3-4.)

• “discovery from Defendants involved in overseeing proper

handling or records and documents relating to Plaintiff’s

information relating to the debt, procedures and protocols

relating to bookkeeping and storage of Plaintiff’s

information relating to the debt, detailed breakdown of all

attorney fees assessed to Plaintiff, Defendants[’] procedures

relating to accommodations of consumers with disabilities”

• “written requests and deposition testimony on these topics:

• Defendant Bougopoulos length of employment at

Novick,

• Defendant Bougopoulos duties and responsibilities

as an employee and/or partner of Novick

• Defendants’ intent, and its maintenance of

procedures to avoid the type of error that occurred

in this matter

• Communication by and between all employees,

partners, staff of Defendant or their agents

regarding all issues discussed in Plaintiff’s

Amended Complaint; and

• Any investigation or review that Defendants

performed pursuant to accommodations of consumers

including disabled and FDCPA”

(ECF No. 38-24 at 3.)

Plaintiff fails on the second, third, and fourth

elements of the UBS AG standard here. Plaintiff does not describe

how the information and facts she seeks are reasonably expected to

raise a genuine issue of material fact as to any of her claims.

Plaintiff only states in a general and conclusory manner that she

requires this discovery “[i]n order to appropriately respond to

the factual issues raised by Defendants” and that the “foregoing

evidence is essential to demonstrate the existence of disputes

concerning facts material to the disposition of this case.” (Id.

at 2-3.) Plaintiff does not identify what specific “factual

issues” or “disputes” she seeks to discover, let alone how her

requested discovery might be relevant to defending against

Defendants’ motion for summary judgment. See, e.g., Gualandi v.

Adams, 385 F.3d 236, 245 (2d Cir. 2004) (holding that the district

court did not abuse its discretion in denying plaintiffs’ request

for additional discovery on the grounds that plaintiffs “did not

describe what they hoped [the requested] documents and records

would show or how this would impact the court’s decision”). Such

general requests do not satisfy the standard for seeking Rule 56(d)

discovery, and veer too close to mere “speculation as to what

potentially could be discovered.” See Sura v. Zimmer, Inc., 768

Fed. Appx. 58, 59 (2d Cir. 2019).

Even if Plaintiff’s 56(d) request for discovery were

granted, the court finds that Plaintiff did not provide any

reasonable basis to conclude that discovery would yield evidence

that Defendants’ lack of consent to a second adjournment request

was “on the basis” of her disability. The court finds that the

record of emails regarding Plaintiff’s adjournment requests

demonstrates sufficient evidence of the events that took place,

and Plaintiff has not offered any evidence for the court to doubt

the validity or completeness of that portion of the record.

Furthermore, Plaintiff has not described what efforts,

if any, she has made to obtain the discovery she now seeks and why

any such prior efforts to obtain the discovery were unsuccessful.

Plaintiff argues that summary judgment should be denied as

premature because she “requires additional time for investigation

and research into defendants’ purported facts.” The events

underlying Plaintiff’s FDCPA claim arose in August 2020, and the

events underlying her ADA-related claim arose in December 2018.

Plaintiff clearly had years to investigate or research either

event, during and even prior to commencing her first and second

overlapping federal lawsuits against Defendants. As the initial

complaint in this action was filed on August 17, 2021, Plaintiff

has also had nearly a full year to pursue discovery prior to making

her FRCP 56(d) request. In sum, even with a generous reading

provided to a pro se litigant, Plaintiff here has failed to meet

the standard for acquiring discovery under FRCP 56(d).

Finally, as discussed above, this case is not the sort

of “heavily fact bound case” that would not be amenable to summary

judgment. See Sali v. Zwanger & Pesiri Radiology Grp., LLP, 2022

WL 1085508, at *7 (E.D.N.Y. Jan. 10, 2022), report and

recommendation adopted, 2022 WL 819178 (E.D.N.Y. Mar. 18, 2022)

(describing a limited legal issue that would only require a single

document without additional discovery). As discussed above,

Plaintiff’s amended complaint hinges on two discrete events for

which the court has the necessary record — this is not a case in

which many further facts are needed to determine whether there is

a genuine issue of material fact. For the stated reasons,

Plaintiff’s request for discovery pursuant to FRCP 56(d) is denied.

IV. State Law Claims

Plaintiff also asserts claims against Defendants under

the New York Human Rights Law (“NYHRL”), N.Y. Exec. Law § 296 et

seq., and the New York City Human Rights Law (“NYCHRL”), N.Y.C.

Admin. Code § 8-101 et seq. (Am. Compl. ¶¶ 92-118.)

Having granted Defendants’ motion as to Plaintiff’s

federal FDCPA and ADA claims, the court declines to exercise

supplemental jurisdiction over her NYHRL and NYCHRL claims. See

28 U.S.C. § 1367(c)(3). “In the ‘usual case’ in which ‘all

federal-law claims are eliminated before trial, the balance of

factors to be considered under the pendent jurisdiction doctrine

– judicial economy, convenience, fairness, and comity – will point

toward declining to exercise jurisdiction over the remaining

state-law claims.’” Krow v. Pinebridge Invs. Holdings U.S. LLC,

2022 WL 836916, at *15 (S.D.N.Y. Mar. 21, 2022) (quoting Valencia

ex rel. Franco v. Lee, 316 F.3d 299, 305 (2d Cir. 2003)). The

court accordingly dismisses Plaintiff’s NYHRL and NYCHRL claims

without prejudice.

CONCLUSION

For the foregoing reasons, Defendants’ motion for

summary judgment is GRANTED as to the FDCPA claim, ADA claim, and

as to Plaintiff’s claim for declaratory relief. Plaintiff’s claims

under the NYHRL, N.Y. Exec. Law § 296 et seq., and NYCHRL, N.Y.C.

Admin. Code § 8-101 et seq. are DISMISSED without prejudice.

The Clerk of Clerk is respectfully directed to enter

judgment accordingly in favor of Defendants, serve Plaintiff with

a copy of this Memorandum and Order and the judgment, note service

on the docket, and close this case.

SO ORDERED.

/s/_Kiyo A. Matsumoto_______

Hon. Kiyo A. Matsumoto

United States District Judge

Eastern District of New York

DATED: January 15, 2023

Brooklyn, New York