# Adams v. 98-208 Para Realty Corp.

> District Court, E.D. New York · September 8, 2023

URL: https://www.frixlaw.com/law-library/cases/10310465

## Case

- **Court:** District Court, E.D. New York
- **Decided:** September 8, 2023
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10310465

## How later opinions describe it (automated extraction)

- holding that “general objection[s] [are] insufficient to obtain de novo review by [a] district court”
- finding that the plaintiff has standing because “it was reasonable to infer, based on the past frequency of plaintiffs visits and the proximity of defendants’ [services] to plaintiff's home, that plaintiff intended to return to the subject location”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

JOSHUA ADAMS,
Plaintiff, MEMORANDUM & ORDER
22-CV-2135 (MKB)
V.
98-208 PARA REALTY CORP. and MSMN
CORP.,
Defendants.

MARGO K. BRODIE, United States District Judge:
Plaintiff Joshua Adams commenced the above-captioned action on April 13, 2022,
against Defendants 98-208 Para Realty Corp. and MSMN Corp., alleging violations of Title III
of the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (“ADA”) and the ADA’s
Accessibility Guidelines, 28 C.F.R. Part 36 (“‘ADDAG”). (Compl., Docket Entry No. 1.) On
October 13, 2022, Plaintiff filed an Amended Complaint. (Am. Compl., Docket Entry No. 16.)
On October 13, 2022, Magistrate Judge Sanket J. Bulsara issued a sua sponte report and
recommendation recommending that the Court dismiss Plaintiffs action without prejudice for
lack of subject matter jurisdiction and deny leave to file a second amended complaint (the
“R&R”). (R&R 6, Docket Entry No. 17). On October 27, 2022, Plaintiff filed an objection to
the R&R. (PI.’s Obj., Docket Entry No. 18.) For the reasons discussed below, the Court adopts
the R&R in part, dismisses Plaintiff's Amended Complaint, and grants Plaintiff leave to file a
second amended complaint.

I. Background
a. Factual background
Plaintiff Joshua Adams currently resides in Brooklyn, New York. (Am. Compl. { 2.)
Plaintiff is a qualified individual with disabilities under the ADA. (/d.) Plaintiff was born with
spina bifida and hydrocephalus, and as a result, ambulates in a wheelchair. (/d.) 98-208 Para
Realty Corp. is a corporation that transacts business in the State of New York and within this
judicial district. Ud. § 3.) 98-208 Para Realty Corp. is the owner of the property located at 208
Franklin Street, Brooklyn, New York 11222 (“Subject Property”). Wd.) MSMN Corp. is a
corporation that transacts business in the State of New York and within this judicial district. (/d.
4 4.) MSMN Corp. is the lessee and operator of the business located at the Subject Property,
known as Kestane Kebab. (/d.)
The Subject Property is in a neighborhood where Plaintiff dines several times per month.
6.) Plaintiff goes out to eat frequently, both socially and because of difficulties preparing
his own meals at home. (/d.) Plaintiff lives approximately five miles from the Subject Property
and passes by the Subject Property at least once per week. (/d.)
Plaintiff has visited the Subject Property, (id. 5), and encountered barriers to access at
the property, (id. J 8). These alleged barriers which precluded and/or limited his ability to access
the property include: inaccessible entrances, missing ramp at one entrance, inaccessible dining
tables, inaccessible service counter, noncompliant signage identifying the restrooms, inaccessible
restrooms, inaccessible door lock at restroom door, inaccessible water closet in restroom,
noncompliant grab bar at the rear wall of the water closet in the restroom, inaccessible flush
control at the water closet, inaccessible lavatory and urinal, noncompliant insulation of lavatory,
and inaccessible mirror and coat hook in restroom. (/d. § 14.) Plaintiff intends to visit the

Subject Property in the near future in order to utilize all of the goods and services offered but is
currently unable to do so due to the above barriers. (/d. § 12.)
b. Procedural background
Plaintiff commenced this lawsuit on April 13, 2022, against Defendants seeking
injunctive relief to vindicate violations of his rights under the ADA and the ADDAG. (Compl.
1.) On May 3, 2022, Defendants filed their Answer. (See Answer, Docket Entry No. 10.)
On July 29, 2022 at the initial telephone conference with the parties, Judge Bulsara
ordered Plaintiff to show cause why Plaintiff has standing to sue under the ADA, more
specifically, to demonstrate that he has suffered a cognizable injury. (See Order dated July 29,
2022.) On August 5, 2022, Plaintiff sought leave to file an amended complaint, (see Mot. for
Leave to File Am. Compl., Docket Entry No. 13), and on October 13, 2022, Judge Bulsara
granted the motion, (see Order dated Oct. 13, 2022). Plaintiff filed the amended complaint on
October 13, 2022. (Am. Compl.)
By R&R dated October 13, 2022, Judge Bulsara recommended that the Court dismiss
Plaintiffs action without prejudice for lack of subject matter jurisdiction and deny leave to file a
second amended complaint. (R&R 6.)
c. The R&R
In recommending that the Court dismiss the Amended Complaint, Judge Bulsara found
that, beyond vague assertions that Plaintiff visited the Subject Property on an unknown date and
that he intends to visit the location in the future, Plaintiff provides no details about such visits.
(Id. at 1.) Judge Bulsara found that such conclusory allegations are insufficient to establish that
Plaintiff suffered an “injury in fact,” a necessary precondition to standing. (/d.) In addition,
Judge Bulsara found that despite the additional language in the Amended Complaint specifying

that he lives approximately five miles from the Subject Property, passes by the property at least
once per week, and the property is in a neighborhood where Plaintiff dines several times per
month, Plaintiff nevertheless fails to establish (1) past injury and (2) a future intent to visit the
Subject Property. (/d. at 3-6.) Judge Bulsara also found that even if there were past injuries, the
allegations are insufficient to establish that Plaintiff is “likely to be harmed again in the future in
a similar way,” (id. at 5 (quoting Calcano v. Swarovski N. Am. Ltd., 36 F.Ath 68, 74 (2d Cir.
2022))), and therefore, the Court lacks subject matter jurisdiction. (/d. at 6.)
d. Plaintiff’s objections to the R&R
In his objections to the R&R, Plaintiff argues that he has made a prima facie showing of
harm from such violations, and that Judge Bulsara (1) improperly disregarded or otherwise
misinterpreted the facts as alleged in the Amended Complaint, and (2) misapplied the pleading
standard in Calcano v. Swarovski North America Ltd., 36 F Ath 68, 76 (2d Cir. 2022), which is
distinct in several ways. (Pl.’s Obj. 1.) Plaintiff seeks leave to file a second amended complaint
because he mistakenly filed an incomplete draft under Docket Entry No. 16 that did not include
the dates on which he visited and attempted to enter the Subject Property. (/d. at 8.)
II. Discussion
a. Standard of review
A district court reviewing a magistrate judge’s recommended ruling “may accept, reject,
or modify, in whole or in part, the findings or recommendations made by the magistrate [judge].”
28 U.S.C. § 636(b)(1)(C). When a party submits a timely objection to a report and
recommendation, the district court reviews de novo the parts of the report and recommendation
to which the party objected. Jd.; see also United States v. Romano, No. 15-CR-992, 2022 WL
402394, at *3 (2d Cir. Feb. 10. 2022) (citing United States v. Romano, 794 F.3d 317, 340 (2d

Cir. 2015)). The district court may adopt those portions of the recommended ruling to which no
timely objections have been made, provided no clear error is apparent from the face of the
record. See S.J. v. N.Y.C. Dep’t of Educ., No. 21-CV-240, 2022 WL 1409578, at *1 n.1 (2d Cir.
May 4, 2022) (noting that district court applied correct legal standard in conducting de novo
review of portions of magistrate’s report to which specific objections were made and reviewing
portions not objected to for clear error). The clear error standard also applies when a party
makes only conclusory or general objections. See Benitez v. Parmer, 654 F. App’x 502, 503-04
(2d Cir. 2016) (holding that “general objection[s] [are] insufficient to obtain de novo review by
[a] district court”); see also Fed. R. Civ. P. 72(b)(2) (“[A] party may serve and file specific
written objections to the [magistrate judge’s] proposed findings and recommendations.”); Wu v.
Good Samaritan Hosp. Med. Ctr., 815 F. App’x 575, 579 (2d Cir. 2020) (“Merely referring the
court to previously filed papers or arguments does not constitute an adequate objection under . . .
Fed. R. Civ. P. 72(b).” (quoting Mario v. P & C Food Mkts., Inc., 313 F.3d 758, 766 (2d Cir.
2002))).
b. Standing to seek injunctive relief
Plaintiff argues that Judge Bulsara misinterprets the record, emphasizing that in the
Amended Complaint he alleges that he “has visited the Subject Property,”. . . “plan[s] to return
to the Subject Property to avail himself of the goods and services offered to the public,” that his
“access to the [Subject Property]... was denied” due to “physical barriers.” (Pl.’s Obj. 4.)
Plaintiff contends that he has “alleged articulable facts indicating that he was injured by a
personal encounter with a violation of the ADA at the Subject Property, and thus has
demonstrated standing that rebuts the recommendation to dismiss.” (/d. at 5.)

“The Constitution limits federal courts to deciding ‘Cases’ and ‘Controversies.’”” FEC v.
Ted Cruz for Senate, 596 U.S. ---, ---, 142 S. Ct. 1638, 1646 (2022) (quoting U.S. Const. Art. II,
§ 2). “Standing to sue is a doctrine’ that ‘limits the category of litigants empowered to maintain
a lawsuit in federal court to seek redress for a legal wrong.’” Liberian Cmty. Ass’n of Conn. v.
Lamont, 970 F.3d 174, 183-84 (2d Cir. 2020) (quoting Spokeo, Inc. v. Robins, 578 U.S. 330, 338
(2016)). “To establish Article III standing, ‘a plaintiff must show (1) that he suffered an injury in
fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused
by the defendant; and (111) that the injury would likely be redressed by judicial relief.”” Liz v.
Democratic Nat’l Comm., No. 21-CV-3021, 2022 WL 4372587, at *1 (2d Cir. Sept. 22, 2022)
(quoting TransUnion LLC v. Ramirez, 594 U.S. ---, ---, 141 S. Ct. 2190, 2203 (2021)). “[A]n
injury in fact” must be “particularized,” and it must be “concrete.” Rynasko v. New York Univ.,
63 F.4th 186, 193 (2d Cir. 2023) (quoting Lujan v. Defs. of Wildlife, 504 U.S. 555, 560-61
(1992)). “The Supreme Court has described ‘imminent’ harm to be one that is ‘certainly
impending’ or where there is a ‘substantial risk’ that the harm will occur.” Choi’s Beer Shop,
LLC v. PNC Merch. Servs. Co., L.P., 855 F. App’x 20, 21 (2d Cir. 2021) (quoting Knife Rights,
Inc. v. Vance, 802 F.3d 377, 383-84 (2d Cir. 2015)).
“{S]tanding is required for subject matter jurisdiction.” James v. Willis, No. 21-CV-501,
2022 WL 481812, at *1 (2d Cir. Feb. 17, 2022) (citing Strubel v. Comenity Bank, 842 F.3d 181,
187 (2d Cir. 2016)). “If plaintiffs lack Article III standing, a court has no subject matter
jurisdiction to hear their claim.” Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012)
(citation omitted); see also Otrompke v. The First Dep’t Comm. on Character & Fitness, No. 20-
CV-4107, 2021 WL 5764221, at *1 (2d Cir. Dec. 6, 2021) (“A district court lacks jurisdiction

‘when . . . the plaintiff lacks constitutional standing to bring the action.’” (quoting Cortlandt St.
Recovery Corp v. Hellas Telecomms. S.a.r.l., 790 F.3d 411, 417 (2d Cir. 2015))).
“[A] plaintiff seeking injunctive or declaratory relief cannot rely on past injury to satisfy
the injury requirement but must show a likelihood that he or she will be injured in the future.”
Choi’s Beer Shop, LLC, 855 F. App’x at 21 (quoting Deshawn E. by Charlotte E. v. Safir, 156
F.3d 340, 344 (2d Cir. 1998)). To seek injunctive and declaratory relief, a plaintiff's standing
“depend|[s] on whether [that plaintiff] [is] likely to suffer future injury” based on the alleged
conduct. City of Los Angeles v. Lyons, 461 U.S. 95, 105 (1983). The risk of future harm must be
“real and immediate,” although it need not be certain. Shain v. Ellison, 356 F.3d 211, 215-16
(2d Cir. 2004) (citations omitted).
A plaintiff has standing to seek injunctive relief for disability discrimination “where (1)
the plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the
discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past
frequency of plaintiff's visits and the proximity of defendants’ [services] to plaintiff's home, that
plaintiff intended to return to the subject location.” Bernstein v. City of New York, 621 F. App’x
56, 57 (2d Cir. 2015) (per curiam) (citing Kreisler v. Second Ave. Diner Corp., 731 F.3d 184,
187-88 (2d Cir. 2013). A plaintiff must make a “substantial showing before determining that
future encounters are likely.” Constance v. State Univ. of N.Y. Health Sci. Ctr. at Syracuse, 166
F. Supp. 2d 663, 666 (N.D.N.Y. 2001) (collecting cases).
i. Plaintiff does not have standing under the ADA
Plaintiff does not have standing under the ADA because he fails to allege past injury and
fails to allege a future intent to visit the property.

1. Plaintiff fails to allege past injury
The allegations in the Amended Complaint are vague, conclusory, and insufficient to
raise a reasonable inference of past injury.
First, Plaintiff fails to allege when he visited the Subject Property and suffered the
injuries alleged. Plaintiff states only that he “has visited the Subject property which forms the
basis of this lawsuit and plans to return to the Subject Property to avail himself of the goods and
services offered to the public at the Subject Property.” (Am. Compl. § 5.) These conclusory
allegations do not provide specific factual context with respect to the timing of his visit, and
without more, preclude a reasonable inference that Plaintiff suffered injury under the ADA at
any specifically identifiable time in the past. See Feltzin v. Stone Equities, LLC, No. 16-CV-
6457, 2018 WL 1115135, at *11 (E.D.N-Y. Feb. 8, 2018) (finding that plaintiff “fail[ed] to allege
when he visited the [p]roperty” because his “only allegation with respect to the timing of his visit
to the [p]roperty” was a conclusory allegation that lacked any specificity (emphasis in original)),
report and recommendation adopted, No. 16-CV-6457, 2018 WL 1114682 (E.D.N-Y. Feb. 26,
2018); see also Castillo v. John Gore Org., Inc., No. 19-CV-388, 2019 WL 6033088, at *5
(E.D.N.Y. Nov. 14, 2019) (finding that plaintiff did not plausibly allege a past injury where she
did not allege she ever visited the defendant’s property or that defendant ever physically barred
her from entering); Chamaidan v. Tomy B. Haircare Inc., No. 17-CV-6948, 2019 WL 4917895,
at *4 (E.D.N_Y. Sept. 30, 2019) (finding that plaintiff failed to allege a past injury where plaintiff
only alleged that she “wanted to enter [d]efendant’s public accommodation, however, was unable
to because of the existence of an unlawful architectural barrier” because “this allegation [was]
insufficient”).

Second, although Plaintiff lists twenty-one alleged ADA violations in paragraph fourteen
of the Amended Complaint, Plaintiff does not allege that he personally encountered any of the
violations. (Am. Compl. § 14); Chamaidan, 2019 WL 4917895, at *4 (finding that the plaintiff
failed to allege a prior direct injury from personally encountering an unlawful barrier on the
defendant’s property because the plaintiff did not “squarely allege that she personally visited the
property”). Plaintiff's conclusory allegation that “Defendants have discriminated against [him]
by failing to comply with the [statutes] . . . precluded and/or limited Plaintiff's ability to access
the [Subject Property]” is insufficient to establish a concrete and particularized injury in fact.
(Am. Compl. § 14); Feltzin, 2018 WL 1115135, at *10 (finding that plaintiff's conclusory
allegation that he “has personally observed or encountered these violations” is “insufficient to
connect the violations to [p]laintiff's experience of them for purposes of establishing a concrete
and particularized injury in fact” (citation omitted)); see Feltzin v. Triangle Props. #1, LLC, No.
14-CV-5131, 2016 WL 11599264, at *5 (E.D.N-Y. Dec. 15, 2016) (“Without any supporting
factual allegations, plaintiffs claim that he ‘personally encountered’ each of a long list of
violations amounts to no more than a conclusory recitation of the legal elements of a direct injury
under the ADA.”).
Plaintiff uses vague and nonspecific phrasing to assert that he has suffered a concrete and
particularized injury in fact. Fe/tzin, 2018 WL 1115135, at *10 (“Plaintiff's use of ambiguous,
indirect, and passive phrasing further supports the Court’s conclusion that the Complaint lacks
sufficient specificity to establish Plaintiff's having suffered a concrete and particularized injury
in fact.”) The lack of specificity is insufficient to establish standing. Jd. (“The Complaint
contains several assertions which, through the use of passive voice, appear to purposefully avoid
stating direct interaction by the Plaintiff.”) In the twenty-one alleged ADA violations, Plaintiff

fails to mention any interaction with these physical barriers. (Am. Compl. § 14.) For example,
Plaintiff alleges that (1) “[t]he first of two entrances is inaccessible,” (2) “[i]naccessible dining
tables located at exterior dining compartment,” (3) “[i]n accessible service counter,” and (4)
“lijnaccessible restroom.” (/d.) It is not clear from the Amended Complaint who conducted the
preliminary inspection, who reported that the entrances, dining tables, service counter, and
restroom were inaccessible, or who’s use of the property was impeded by the barriers. Fe/tzin,
2018 WL 1115135, at *10 (the passive phrasing in the complaint does not indicate “who
conducted the preliminary inspection, who reported restrooms unsafe for use, and for whom
entering restrooms and tenants was impeded” (emphasis omitted)). Plaintiff does not specify
whether he successfully entered the Property, rather he alleges that his “access to the [Subject
Property] and/or full and equal enjoyment of the . . . facilities . . . was denied and/or limited.”
(Id. 45.) See Triangle Props. #1, LLC, 2016 WL 11599264, at *5 (finding that although plaintiff
claimed he “personally encountered” each of a long list of violations, the use of phrasing which
failed to allege that plaintiff directly encountered and was injured by any violation supported the
court’s conclusion that plaintiff's claim amounted to no more than a conclusory recitation of the
legal elements of a direct injury under the ADA).
Accordingly, the Court finds that Plaintiff has failed to plead facts sufficient to show that
he has suffered a concrete and particularized injury in fact under the ADA.
2. Plaintiff fails to allege future intent to visit the Subject
Property
The record does not support a finding that Plaintiff intends to return to the Subject
Property. Plaintiff argues that because he “passes by the [Subject Property] at least once per
week, and the [Subject Property] is in a neighborhood that [he] dines out in several times per
month . . . . [i]t was reasonable to infer, based on the past frequency of plaintiffs visits and the

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proximity of defendants’ [business] to [his] home, that [he] intended to return to the [Subject
Property].” (P1.’s Obj. 6); see Bernstein, 621 F. App’x at 57 (finding that the plaintiff has
standing because “it was reasonable to infer, based on the past frequency of plaintiffs visits and
the proximity of defendants’ [services] to plaintiff's home, that plaintiff intended to return to the
subject location”). These assertions are nothing more than legal conclusions couched as factual
allegations and do not raise a reasonable inference of injury. Calcano, 36 F.Ath at 76 (finding
that plaintiffs’ allegations that they lived in close proximity, had been customers on prior
occasions, and intended to return immediately after defendants provided the requested
accommodation were insufficient since the “mere ‘profession of an intent to return to the places’
previously visited is ‘not enough’ to establish standing for prospective relief”); see also Baur v.
Veneman, 352 F.3d 625, 636—37 (2d Cir. 2003) (“While the standard for reviewing standing at
the pleading stage is lenient, a plaintiff cannot rely solely on conclusory allegations of injury or
ask the court to draw unwarranted inferences in order to find standing.”). Furthermore, while
proximity is relevant to the determination of a plaintiff's intent to return to an accommodation in
the future, it is insufficient, on its own, to establish Title III’s requirements for injunctive relief.
Small vy. Gen. Nutrition Cos., Inc., 388 F. Supp. 2d 83, 90 (E.D.N.Y. 2005) (“[A] plaintiffs
showing that he ‘live[s] in close proximity’ to the public accommodations he is challenging is
clearly insufficient to establish standing.”).
Plaintiff has shown, at most, that he may possibly return to the Subject Property. See
Constance, 166 F. Supp. 2d at 667 (finding that plaintiffs who were transported to defendant
hospital during a visit to the city where defendant was located did not have standing to seek
injunctive relief since they had “at most shown a mere possibility of a return visit to [dJefendant
[hjospital, not a ‘likelihood’” (citing Lujan, 504 U.S. at 560—61)). Plaintiff alleges that he

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“antends to visit the [Subject Property] again in the near future.” (Am. Compl. § 12.) However,
Plaintiff does not provide any detailed account of definitive plans or pinpoint a specific time for
the purported visit. These vague, “some day” intentions do not support a finding of “actual or
imminent” injury required by Article III. Lujan, 504 U.S. at 564 (“Such ‘some day’ intentions
— without any description of concrete plans, or indeed even any specification of when the some
day will be — do not support a finding of the ‘actual or imminent’ injury that our cases require.”
(citation omitted)).
Drawing all inferences in favor of Plaintiff, the record does not support a finding of an
“actual or imminent” threat of injury to Plaintiff and therefore he does not have standing to seek
injunctive relief. See Lujan, 504 U.S. at 560-64.
c. Judge Bulsara correctly applied the law
Plaintiff argues that Judge Bulsara inappropriately applied Ca/cano, and its progeny, to
the facts of this case. (Pl.’s Obj. 7-8.) Plaintiff contends that unlike the plaintiff in Caleano who
failed to state a plausible claim under the ADA, he does plead a cognizable claim. (/d.) In
support, Plaintiff argues that in Ca/cano, the court found that “gift cards are not themselves
places of public accommodation,” but that there is no question that the Subject Property is a
place of public accommodation. (/d.) In addition, Plaintiff contends that the complaint in
Calcano was “entirely awry and logically defective” because one of the plaintiffs in that case
alleged that they lived a block from defendant’s store in Manhattan but that defendant did not
maintain a store in Manhattan. (/d. at 8 (citing Calcano, 36 F Ath at 76).)
Judge Bulsara did not erroneously rely on incorrect precedent. In the R&R, Judge
Bulsara cited Cal/cano for the proposition that: “[b]ecause plaintiff ‘must establish a “material
risk of future harm’ that is ‘sufficiently imminent and substantial, . . . conclusory allegations of

12

intent to return and proximity are not enough.’” (R&R 2 (quoting Calcano, 36 F.Ath at 72).)
The Calcano court based this statement on the standard in TransUnion LLC, where the Supreme
Court noted that it “has recognized that material risk of future harm can satisfy the concrete-
harm requirement in the context of a claim for injunctive relief to prevent the harm from
occurring, at least so long as the risk of harm is sufficiently imminent and substantial.” 141 S.
Ct. at 2197 (citation omitted).
In Calcano, the Second Circuit found that “each [p]laintiff plead[ed] the identical
assertion that he resides in close proximity to [d]efendants’ business, has been a customer at
[dJjefendant’s [location] on prior occasions, and intends to immediately purchase at least one
store gift card from the [d]efendant as soon as the [d]efendant sells store gift cards that are
accessible.” Calcano, 36 F Ath at 76 (internal quotation marks and citation omitted). Similarly,
in the Amended Complaint, Plaintiff alleges that he “lives approximately 5 miles from the
[Subject Property], passes by the [Subject Property] at least once per week,” “has visited the
Subject Property,” and “intends to visit the [Subject Property] again in the near future.” (Am.
Compl. 4 5, 6, 12.) Based on the similarities in the structure of the allegations and their lack of
specificity, both are “nothing more than ‘legal conclusion[s] couched as . . . factual
allegation[s].’” Calcano, 36 F.Ath at 76 (alterations in original) (citation omitted).
Accordingly, the Court finds that Judge Bulsara did not erroneously apply Calcano to the
facts of this case.
d. The Court grants Plaintiff leave to file an Amendment under Rule 15
Plaintiff requests leave of court to file a second amended complaint. (Pl.’s Obj. 8.)
Judge Bulsara recommends that the case be dismissed without leave to amend. (R&R 6.)

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Rule 15 of the Federal Rules of Civil Procedure provides that “[l]eave to amend should
be ‘freely give[n] . . . when justice so requires,’ but ‘should generally be denied in instances of
futility, undue delay, bad faith or dilatory motive, repeated failure to cure deficiencies by
amendments previously allowed, or undue prejudice to the non-moving party[.]’” United States
ex rel. Ladas v. Exelis, Inc., 824 F.3d 16, 28 (2d Cir. 2016) (second and third alterations in
original) (first quoting Fed. R. Civ. P. 15(a)(2); and then quoting Burch v. Pioneer Credit
Recovery, Inc., 551 F.3d 122, 126 (2d Cir. 2008)); see also Kainz v. Bernstein, 841 F. App’x
249, 253 (2d Cir. 2020) (noting that leave to amend should be freely given).
Assuming that in a second amended complaint Plaintiff provides the dates that he has
visited the Subject Property as well as facts indicating an intent to return to the Subject Property,
(see Pl.’s Obj. 8-10), Plaintiff may be able to cure the deficiencies in the Amended Complaint.
See, e.g., Fraser v. City of New York, No. 20-CV-5741, 2022 WL 3045524, at *10 (E.D.N.Y.
Aug. 1, 2022) (permitting plaintiff leave to file a second amended complaint where “the record
does not indicate that she has repeatedly submitted deficient pleadings”). Because leave to
amend should be freely given under Rule 15 of the Federal Rules of Civil Procedure, the Court
grants Plaintiff leave to file a second amended complaint.

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Conclusion
For the foregoing reasons, the Court adopts the report and recommendation in part. The
Court dismisses Plaintiff's Amended Complaint, and grants Plaintiff leave to file a second
amended complaint.
Dated: September 7, 2023
Brooklyn, New York

SO ORDERED:

/s/ MKB
MARGO K. BRODIE
United States District Judge

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10310465. Public record. Not legal advice.