# Makhnevich v. Novick Edelstein Pomerantz PC

> District Court, E.D. New York · January 15, 2023

URL: https://www.frixlaw.com/law-library/cases/10309072

## Case

- **Court:** District Court, E.D. New York
- **Decided:** January 15, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
---------------------------------------X

STACY MAKHNEVICH,
MEMORANDUM & ORDER
Plaintiff, 21-CV-05516 (KAM)(VMS)

- against -

GREGORY S. BOUGOPOULOS; NOVICK EDELSTEIN
POMERANTZ, P.C.,

Defendants.

---------------------------------------X
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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10309072. Public record. Not legal advice.