# Killoran v. Westhampton Beach School District

> District Court, E.D. New York · February 26, 2024

URL: https://www.frixlaw.com/law-library/cases/10311285

## Case

- **Court:** District Court, E.D. New York
- **Decided:** February 26, 2024
- **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/10311285

## How later opinions describe it (automated extraction)

- observing that a document is “integral” if the complaint “relies heavily upon its terms and effect”
- stating the “IDEA does not protect individuals from retaliation for attempting to enforce the IDEA”

## Opinion text

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
----------------------------------x
CHRISTIAN KILLORAN,
on behalf of his son, AIDEN KILLORAN;
CHRISTIAN KILLORAN; and
TERRIE KILLORAN,

Plaintiff, OMNIBUS MEMORANDUM & ORDER
No. 20-CV-4763(JS)(LGD)
-against-

WESTHAMPTON BEACH SCHOOL DISTRICT;
SUZANNE MENSCH, AND JOYCE DONNESON,
as Board of Education Members;
MICHAEL RADDAY, as Superintendent;
MARYANN AMBROSINI,1 as Director of
Pupil Personnel and CSE Chairperson,

Defendants.
----------------------------------x
CHRISTIAN KILLORAN,
on behalf of his son,
AIDEN KILLORAN,

Plaintiff, No. 22-CV-1632(JS)(LGD)

-against-

WESTHAMPTON BEACH SCHOOL DISTRICT;
MICHAEL RADDAY, as Superintendent;
SUZANNE MENSCH, JOYCE DONNESON,
GEORGE KAST, and HALSEY C. STEVENS,
as Board of Education Members,

Defendants.
----------------------------------x

1 Plaintiff has misspelled Defendant Ambrosini’s first name as
“Mary Ann”. Cf. Killoran v. Westhampton Beach Sch. Dist., No.
20-CV-4121, 2023 WL 5532920, n.1 (E.D.N.Y. Aug. 28, 2023)
(hereafter, the “Killoran August 2023 Order”). If not already
done so, the Clerk of Court is directed to correct said spelling
to “MaryAnn” in the four Case Dockets subject to this Omnibus
Memorandum & Order.
----------------------------------x
CHRISTIAN KILLORAN,
on behalf of his son,
AIDEN KILLORAN,

Plaintiff, No. 23-CV-1114(JS)(LGD)

-against-

WESTHAMPTON BEACH SCHOOL DISTRICT;
and MARYANN AMBROSINI,

Defendants.
----------------------------------x
CHRISTIAN KILLORAN,
on behalf of his son,
AIDEN KILLORAN,

Plaintiff, No. 23-CV-1115(JS)(LGD)

-against-

WESTHAMPTON BEACH SCHOOL DISTRICT,

Defendant.
----------------------------------x
Appearances:

For Plaintiff: Christian Killoran, Esq., pro se
132-13 Main Street
Westhampton Beach, New York 11978

For Defendants: Anne C. Leahey, Esq.
Anne Leahey Law, LLC
319 Thompson Street
Port Jefferson, New York 11777-1919

SEYBERT, District Judge:
Pro se plaintiff Christian Killoran (“Plaintiff” or
“Parent”2), in various capacities, e.g., individually and as parent

2 While A.K.’s mother, Terrie Killoran, is also a named Plaintiff
in one of these cases, because her interests are aligned with those
to A.K., a child with Down Syndrome, has commenced numerous
administrative challenges and subsequent and additional federal
actions, all emanating from the development of A.K.’s

individualized education plans (“IEPs”; singularly, “IEP”) and
subsequent placements pursuant to those IEPs and, for certain
academic years, pursuant to an agreed-upon 2019 Pendency Placement
Agreement. Parent has brought the instant suits against:
Westhampton Beach School District (“Westhampton” or the “School
District”); as well as, variously: Michael Radday, Superintendent
of the School District; MaryAnn Ambrosini, sometimes individually
and as Director of Pupil Personnel and CSE Chairperson
(“Ambrosini”); and Joyce Donneson, George Kast, Suzanne Mensch,
and Halsey C. Stevens, as members of the School Board
(collectively, the “Defendants”). These suits are brought
pursuant to: the Individuals with Disabilities Act (“IDEA”),

20 U.S.C. § 1400 et seq.; the Americans with Disabilities Act

of Christian Killoran, hereafter, the Court refers only to Parent
Christian Killoran. However, the Court’s rulings herein apply
equally to Christian and Terrie Killoran.
Further, “the Court takes notice that Plaintiff [Christian
Killoran], although proceeding pro se, is a registered attorney.”
Killoran v. Westhampton Beach Sch. Dist., No. 19-CV-3298, 2020 WL
4740498, at *4 (E.D.N.Y. June 24, 2020), report and recommendation
adopted, 2020 WL 4743189 (E.D.N.Y. July 27, 2020). “Accordingly,
although Plaintiff is proceeding pro se, his Complaint[s] [are]
held to the same standards as pleadings drafted by lawyers.”
Killoran v. Westhampton Beach Sch. Dist., No. 20-CV-4121, 2022 WL
866816, at *4 (E.D.N.Y. Mar. 22, 2022) (hereafter, “Killoran March
2022 Order”) (citing Bazadier v. McAlary, 464 F. App’x 11, 12 (2d
Cir. 2012)).
(“ADA”), 42 U.S.C. § 12101 et seq.; Section 504 of the
Rehabilitation Act (“Section 504”), 29 U.S.C. § 794(a) et seq.;
and Section 1983 of Title 42 of the United States Code (“Section

1983”), 42 U.S.C. § 1983. Parent also challenges administrative
decisions of different state review officers (“SROs”; singularly,
“SRO”). He variously seeks monetary damages and compensatory
education damages.
On October 24, 2023, the Court held an Omnibus Status
Conference in these actions; it addressed Defendants’ various
pre-motion conference letters (“PMC Letters”)3 requesting
permission to file dismissal motions.4 The parties were informed
the Court was construing the PMC Letters as Defendants’ respective
dismissal motions.5 To the extent Parent had not responded to the
PMC Letters, he was afforded the opportunity to do so.6 (See id.)

3 (See Case No. 20-CV-4763, PMC Letter, ECF No. 25; Case No.
22-CV-1632, PMC Letter, ECF No. 8; Case No. 23-CV-1114, PMC Letter,
ECF No. 7; and Case No. 23-CV-1115, PMC Letter, ECF No. 8.)

4 (See Case No. 20-CV-4763, Omnibus Minute Entry, ECF No. 32; Case
No. 22-CV-1632, Omnibus Minute Entry,, ECF No. 26; Case No.
23-CV-1114, Omnibus Minute Entry,, ECF No. 13; and Case No.
23-CV-1115, Omnibus Minute Entry,, ECF No. 14.) In Case No.
22-CV-1632, the Court also heard oral argument on Plaintiff’s
Motion to Reopen (ECF No. 21); it rules on said Motion herein (see
infra at 30-31).

5 (See all Omnibus Minute Entries at 5, § IV.)

6 (See supra note 5.)
Parent’s responses have now been filed.7 As a result, presently
before the Court are Defendants’ respective Dismissal Motions.8
Thus, having considered the parties’ written submissions and heard

their arguments, for the reasons that follow, the Court: (1) in
Case No. 20-CV-4763, GRANTS Defendants’ Motion to Dismiss; (2) in
Case No. 22-CV-1632, GRANTS Defendants’ Partial Motion to Dismiss;
(3) in Case No. 23-CV-1114, GRANTS Defendants’ Motion to Dismiss;
and, (4) in Case No. 23-CV-1115, GRANTS the School District’s
Partial Motion to Dismiss.
BACKGROUND
I. Factual Background
The parties and the Court are familiar with the extensive
facts leading to these litigations and, accordingly, assumes the
parties’ familiarity with same.9 At this point, the Court states

7 (See Case No. 20-CV-4763, PMC Response, ECF No. 33; Case No.
22-CV-1632, PMC Response, ECF No. 27; Case No. 23-CV-1114, PMC
Response, ECF No. 14; and Case No. 23-CV-1115, PMC Response, ECF
No. 15.)

8 (See supra note 4 (informing the reader Plaintiff’s Motion to
Reopen in Case No. 22-CV-1632 is also presently before the Court).)

9 See, e.g., Killoran March 2022 Order, 2022 WL 866816; see also
Killoran v. Westhampton Beach Sch. Dist., Case No. 22-CV-6467, SRO
Harrington June 23, 2023 Decision, No. 23-093, ECF No. 12-3, at 2-
3 (listing 18 prior State-level administrative appeals of which
A.K. was the subject), and at 4 n.3 (noting “[d]ue to the nearly
continuous nature of the administrative due process proceedings
and State-level administrative appeals—and related federal
district court proceedings—involving this student, he has been
receiving his special education program under various pendency
placements since approximately the 2015-16 school year”).
generally and briefly that A.K.: has Down syndrome; is an
alternately assessed student; and, is eligible for special
education as a student with intellectual disabilities. As the

Second Circuit has observed, Parent and the School District have
been in a long-running dispute over A.K.’s education. See, e.g.,
Killoran v. Westhampton Beach Sch. Dist., No. 22-204, 2023 WL
4503278, at *1 and n.1 (2d Cir. July 13, 2023) (hereafter, the “2d
Cir. Brown Appeal”) (citing Killoran v. Westhampton Beach UFSD,
No. 21-2647, 2023 WL 4503151 (2d Cir. July 13, 2023) (hereafter,
the “2d Cir. Seybert 2021 Appeal”); Killoran v. Westhampton Beach
Sch. Dist., No. 22-1753, 2023 WL 4503274 (2d Cir. July 13, 2023)
(hereafter, the “2d Cir. Seybert 2022 Appeal”)). In particular,
since approximately the 2016-2017 academic year, Parent has not
agreed with, and has challenged, the School District’s IEPs for
A.K., which IEPs have been created by the School District’s

Committee on Special Education (“CSE”). As a result, A.K. had
been receiving his IEPs and corresponding special education

To the extent the Court provides background for context in a
particular case, and such factual background is relevant to the
Court’s determination of one of the instant dismissal motions,
those facts have been taken from the relevant Complaint and are
assumed to be true for purposes of deciding the particular motion.
See, e.g., Sira v. Morton, 380 F.3d 57, 67 (2d Cir. 2004).
Additionally, a document may be considered on a motion to dismiss
where the plaintiff has “reli[ed] on the terms and effect of [the]
document in drafting the complaint.” Chambers v. Time Warner,
Inc., 282 F.3d 147, 153 (2d Cir. 2002) (emphasis omitted).
programs under various pendency placements, including the 2019
Agreement,10 until April 2023, when the CSE determined A.K.’s IEP
should be delivered in the School District’s 12:1:1 special

education class. See, e.g., Killoran v. Westhampton Beach Sch.
Dist., No. 22-CV-6467, Defs. Letter Update, ECF No. 27 (E.D.N.Y.
May 3, 2023) (advising “the State Education Department, on March
6, 2023, granted an age variance permitting A.K.’s participation
in the District High School’s special class (12:1:1)” and “A.K.
joined the class on April 19, 2023 where he is currently receiving
instruction and related services”); see also, e.g., Killoran v.
Westhampton Beach Sch. Dist., No. 20-CV-4121, 2023 WL 553290, at
n.7 (E.D.N.Y. Aug. 28, 2023) (hereafter, the “Killoran August 2023
Order”) (noting State’s granting an age variance for A.K. for the
2022-2023 school year).
DISCUSSION

I. Applicable Law
A. Rule 12 Dismissal
The Court restates the well-established plausibility
standard applied to dismissal motions brought pursuant to Rules
12(b) and (c) of the Federal Rules of Civil Procedure, as
articulated in a prior ruling made by the Court in a case brought
by Parent:

10 See Killoran March 2022 Order, 2022 WL 866816, at *1 (defining
and explaining the “2019 Agreement”).
To withstand a motion to dismiss, a
complaint must contain factual allegations
that “state a claim to relief that is
plausible on its face.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009) (quoting Bell
Atlantic Corp. v. Twombly, 550 U.S. 544, 570
(2007)). This plausibility standard is not a
“probability requirement” and requires “more
than a sheer possibility that a defendant has
acted unlawfully.” Id. (internal quotation
marks and citation omitted). Although the
Court must accept all allegations in the
complaint as true, this tenet is “inapplicable
to legal conclusions.” Id. Thus,
“[t]hreadbare recitals of the elements of a
cause of action, supported by mere conclusory
statements, do not suffice.” Id. (citation
omitted). Ultimately, the Court’s
plausibility determination is a “context-
specific task that requires the reviewing
court to draw on its judicial experience and
common sense.” Id. at 679.
In deciding a motion to dismiss, the
Court is confined to “the allegations
contained within the four corners of [the]
complaint,” Pani v. Empire Blue Cross Blue
Shield, 152 F.3d 67, 71 (2d Cir. 1998), but
this has been interpreted broadly to include
any document attached to the complaint, any
statements or documents incorporated in the
complaint by reference, any document on which
the complaint heavily relies, and anything of
which judicial notice may be taken. See
Chambers v. Time Warner, Inc., 282 F.3d 147,
152-53 (2d Cir. 2002) (observing that a
document is “integral” if the complaint
“relies heavily upon its terms and effect”).

Killoran March 2022 Order, 2022 WL 866816, at *3 (granting
Defendants’ dismissal motion). “The standard for granting a Rule
12(c) motion for judgment on the pleadings is identical to that
for granting a Rule 12(b)(6) motion for failure to state a claim.”
Killoran August 2023 Order, 2023 WL 5532920, at *3 (quoting Lively
v. WAFRA Inv. Advisory Grp., Inc., 6 F.4th 293, 301 (2d Cir. 2021)
(further citation omitted)).
B. IDEA Claims

In one of its July 2023 trilogy Killoran summary orders,
the Second Circuit stated:
Under the IDEA, a school district must
provide services “tailored to meet the unique
needs of a particular child, and . . .
reasonably calculated to enable the child to
receive educational benefits.” Gagliardo[ v.
Arlington Cent. Sch. Dist.], 489 F.3d [105,]
107 [(2d Cir. 2007)] (internal quotation marks
omitted). To administer these services, a
school district must develop an individualized
education program (“IEP”) each year for each
student with a disability. M.H.[ v. N.Y.C.
Dep’t of Educ.], 685 F.3d [217,] 224 [(2d Cir.
2012)].
For an IEP to be adequate under the IDEA,
it must be “likely to produce progress, not
regression, and . . . afford[ ] the student
with an opportunity greater than mere trivial
advancement.” Cerra v. Pawling Cent. Sch.
Dist., 427 F.3d 186, 195 (2d Cir. 2005)
(internal quotation marks omitted). It must
also “ensure that ‘[t]o the maximum extent
appropriate, children with disabilities . . .
are educated with children who are not
disabled.’” T.M. ex rel. A.M. v. Cornwall
Cent. Sch. Dist., 752 F.3d 145, 151 (2d Cir.
2014) (alterations in original) (quoting 20
U.S.C. § 1412(a)(5)(A)). “In other words, the
state must seek to educate each child with a
disability in his or her LRE.” Id.
“In determining whether an IEP complies
with the IDEA, courts make a two-part inquiry
that is, first, procedural, and second,
substantive. At the first step, courts
examine whether there were procedural
violations of the IDEA, namely, whether the
state has complied with the procedures set
forth in the IDEA. . . . Courts then examine
whether the IEP was substantively adequate,
namely, whether it was reasonably calculated
to enable the child to receive educational
benefits.” R.E. v. N.Y.C. Dep’t of Educ., 694
F.3d 167, 189–90 (2d Cir. 2012) (alterations,
citations, and internal quotation marks
omitted). Procedural inadequacies render a
proposed placement violative of the IDEA when
they “cumulatively result in the denial of a
FAPE[11] even if the violations considered
individually do not.” Id. at 190. Substantive
inadequacies automatically render a proposed
placement violative of the IDEA. Id.

2d Cir. Seybert 2021 Appeal, 2023 WL 4503151, at *2; see also
Killoran v. Westhampton Sch. Dist., No. 20-CV-4763, 2022 WL 954851,
at *1-2 (E.D.N.Y. Mar. 30, 2022) (hereafter, the “Compensatory Ed.
Denial Order”) (describing the statutory framework for IDEA
cases); Killoran March 2022 Order, 2022 WL 866816, at *4
(discussing the IDEA’s stay-put provision).
C. ADA and Section 504 Claims
In another of its July 2023 trilogy Killoran summary
orders, the Second Circuit stated:
Though there are “subtle differences”
between the ADA and the Rehabilitation Act, we
generally “treat claims under the two statutes
identically,” applying the same standards to
both. Henrietta D. v. Bloomberg, 331 F.3d
261, 272 (2d Cir. 2003) (citation and internal
quotation marks omitted). To make a claim
under either statute, Plaintiff must show that
(1) A.K. “is a qualified individual with a
disability”; (2) Defendants are “subject to
one of the Acts”; and (3) A.K. “was denied the
opportunity to participate in or benefit from
[Defendants’] services, programs, or

11 “FAPE” is an acronym for “Free Appropriate Public Education”.
activities, or was otherwise discriminated
against by the [Defendants] because of his
disability.” McElwee v. Cnty. of Orange, 700
F.3d 635, 640 (2d Cir. 2012).
“Under both statutes, a defendant
discriminates when it fails to make a
reasonable accommodation that would permit a
qualified disabled individual to have access
to and take a meaningful part in public
services.” Id. at 640. (citation and internal
quotation marks omitted). “A plaintiff
alleging that he was denied a reasonable
accommodation bears the burdens of both
production and persuasion as to the existence
of some accommodation that would allow him to
meet the essential eligibility requirements of
the service, program, or activity at issue.”
Id. at 642.

2d Cir. Brown Appeal, 2023 WL 4503278, at *2-3; see also Killoran
August 2023 Order, 2023 WL 5532920, at *4 (same). And, as this
Court previously elucidated:
Notably, a violation of the IDEA, without
more, is insufficient to support a claim of
disability-based discrimination under the ADA
or Section 504. See French v. N.Y. State Dep’t
of Educ., 476 F. App’x 468, 472-7[3] (2d Cir.
2011) (a “fail[ure] to show that the alleged
‘discrimination’ is anything more than a
rehashing of [the plaintiff’s] allegation that
the defendants failed to provide her with a
FAPE” warrants dismissal of plaintiff’s ADA
and Section 504 claims). Rather, where a
plaintiff asserts denial of a FAPE, there must
be evidence that the school district acted
with “deliberate or reckless indifference to
the student’s federally protected rights” or
with “bad faith or gross misjudgment.” Pape
v. Bd. of Educ. of Wappingers Cent. Sch.
Dist., No. 07-CV-8828, 2013 WL 3929630, at *11
(S.D.N.Y. July 30, 2013) (cleaned up); see
also S.W.[ v. Warren], 528 F. Supp. 2d [282,]
290 [(S.D.N.Y. 2007)] (“[P]laintiffs can rely
on Section 504 to claim they are denied access
to a free appropriate education, as compared
to the free appropriate education non-disabled
students receive, if they can show that
Defendants acted with bad faith or gross
misjudgment in the administration of
disability services.”).

Killoran March 2022 Order, 2022 WL 866816, at *7 (footnote
omitted); see also Killoran August 2023 Order, 2023 WL 5532920, at
*4 (same).
D. Section 1983 Class-of-One Equal Protection Claims
This Court has previously articulated the relevant law
for a class-of-one equal protection claim brought pursuant to
Section 1983. Said law is restated herein:
Pursuant to the Fourteenth Amendment’s
Equal Protection Clause, the Government must
treat “all similarly situated people alike.”
Harlen Assocs. v. Inc. Vill. of Mineola, 273
F.3d 494, 499 (2d Cir. 2001) (citing City of
Cleburne v. Cleburne Living Ctr., 473 U.S.
432, 439 (1985)). The protections afforded by
the Equal Protection Clause extend to
“individuals who allege no specific class
membership[,]” known as “class of one
claims[,]” “where the plaintiff alleges that
[ ]he has been intentionally treated
differently from others similarly situated and
that there is no rational basis for the
difference in treatment.” Id. (quoting Vill.
of Willowbrook v. Olech, 528 U.S. 562, 564
(2000) (per curiam)).
To prevail on a “class of one” claim,
“‘the plaintiff must point to at least one
other individual whose circumstances, aside
from being treated more favorably than
plaintiff, are ‘prima facie identical’ in all
other respects.’” MB v. Islip Sch. Dist., No.
14-CV-4670, 2015 WL 3756875, at *10 (E.D.N.Y.
June 16, 2015) (cleaned up); see also
Clubside, Inc. v. Valentin, 468 F.3d 144, 159
(2d Cir. 2006) (“[C]lass-of-one plaintiffs
must show an extremely high degree of
similarity between themselves and the persons
to whom they compare themselves.” (emphasis
added)). More specifically, a plaintiff must
establish that he and a comparator are “prima
facie identical” by showing:
(i) no rational person could regard
the circumstances of the plaintiff
to differ from those of a comparator
to a degree that would justify the
differential treatment on the basis
of a legitimate government policy;
and (ii) the similarity in
circumstances and difference in
treatment are sufficient to exclude
the possibility that the defendant
acted on the basis of a mistake.
Ruston v. Town Bd. for Town of Skaneateles,
610 F.3d 55, 59–60 (2d Cir. 2010), cert.
denied, 562 U.S. 1108 (2010) (quoting
Clubside, 468 F.3d at 159).
To survive a motion to dismiss, a
complaint must make sufficient factual
allegations in support of this similarity
requirement. See Ruston, 610 F.3d at 59
(citing Iqbal, 556 U.S. at 678.) Courts
require “more than a bare allegation that
other individuals were treated differently.”
Vaher v. Town of Orangetown, N.Y., 916 F.
Supp. 2d 404, 435 (S.D.N.Y. 2013) (citation
omitted). “[T]he court must [] determine
whether, based on a plaintiff's allegations in
the complaint, it is plausible that a jury
could ultimately determine that the
comparators are similarly situated.” Id. at
434 (quoting Mosdos Chofetz Chaim, Inc. v.
Vill[.] of Wesley Hills, 815 F. Supp. 2d 679,
697-98 (S.D.N.Y. 2011)).
Of relevance to this action, the Second
Circuit recently recognized “that ‘[t]here is
no precise formula to determine whether an
individual is similarly situated to
comparators.’” Hu v. City of N.Y., 927 F.3d
81, 97 (2d Cir. 2019) (quoting McDonald v.
Vill. of Winnetka, 371 F.3d 992, 1002 (7th
Cir. 2004); citing Lindquist v. City of
Pasadena, Texas, 669 F.3d 225, 234 (5th Cir.
2012) (“[T]he inquiry is case-specific and
requires us to consider the full variety of
factors that an objectively reasonable
decisionmaker would have found relevant in
making the challenged decision.” (citation
omitted))). The Hu Court instructed that the
“question of ‘whether parties are similarly
situated is [generally] a fact-intensive
inquiry’ that depends heavily on the
particular context of the case at hand.” Id.
(quoting Clubside, Inc. v. Valentin, 468 F.3d
144, 159 (2d Cir. 2006); citing Jennings v.
City of Stillwater, 383 F.3d 1199, 1214 (10th
Cir. 2004) (“Inevitably, the degree to which
others are viewed as similarly situated
depends substantially on the facts and context
of the case.”)).

Killoran v. Westhampton Beach Sch. Dist., No. 19-CV-6663, 2022 WL
3309223, at *3-4 (E.D.N.Y. Aug. 10. 2022) (hereafter, the “Killoran
August 2022 Order”), aff’d, 2d Cir. Seybert 2022 Appeal, 2023 WL
4503274; see also Killoran August 2023 Order, 2023 WL 5532920, at
*7-8. (same).
II. Application
A. Case No. 20-CV-4763 (re: 2019-2020 School Year)
In this action, in its Compensatory Ed. Denial Order,
the Court previously denied Parent’s Motion for Partial Summary
Judgment regarding SRO Bates’ September 16, 2020 Decision denying
A.K. compensatory education notwithstanding the SRO’s reversal of
the IHO’s underlying determination that the School District had
provided A.K. with a FAPE in the least restrictive environment
(“LRE”) pursuant to the IDEA; in other words, the Court denied
Parent’s IDEA claim. (See Case Docket, ECF No. 22.12) Now,
pursuant to Rule 12(c), Defendants seek dismissal of Parent’s
remaining claims, i.e., alleged violations of the ADA, Section

504, and Section 1983. (See id., PMC Motion, ECF No. 25.)
1. The Parties’ Positions
Defendants contend Parent’s ADA and Section 504 claims
are based on no more than a violation of the IDEA, which is well-
established as being insufficient to plausibly allege such causes
of action. (See id. at 2.) They further assert that Parent’s
Section 1983 cause of action, another class-of-one claim, “is
supported only by the conclusory assertion that A.K. is like . . .
three comparator students because he is a post-elementary school
student and is an alternately assessed special-education student
and by the speculative assertion that ‘a comparative analysis of
his [IEP]’ and IEPs of the three comparator students ‘will reveal

further inherent similarities.’” (Id. (quoting Compl., ECF No. 1,
¶¶ 104, 105).) And, in any event, Parent “cannot use Section 1983
to obtain damages for IDEA violations absent allegations that he
was denied IDEA’s ‘procedural safeguards or administrative
remedies.’” (Id. (quoting Killoran March 2022 Order, 2022 WL
866816, at *9; further citation omitted).) Such is not the case

12 The Compensatory Ed. Denial Order is also available on the
Westlaw database: Killoran v. Westhampton Beach Sch. Dist., No.
20-CV-4763, 2022 WL 954851 (E.D.N.Y. Mar. 30, 2022).
here. (See id. (stating “the administrative record previously
filed in this Court reveals that Plaintiffs were fully accorded
the procedural safeguards and administrative remedies of the

IDEA”).)
In opposition and as to his ADA and Section 504 claims,
Parent argues these claims “are valid because his [administrative
due process] complaint illustrates how the [D]efendants
discriminated against” A.K., “above and beyond violating the IDEA”
since that complaint “sets forth how the [D]efendants entirely
precluded any consideration whatsoever to place [A.K.] within the
same ‘continuum of placement options’ offered to the other students
who were being educated within the [School District].” (Case
Docket, PMC Response, ECF No. 33, at 1.) Plaintiff contends the
School District “chose not to educate [A.K.] within an ‘alternately
assessed special class format’ simply because of his age.” (Id.

(footnoting that while a school district may request an age
variance from the state, the School District refused to do so).)
Parent asserts the School District’s discrimination is
demonstrated by its position that because there were “no alleged
age-appropriate age cohort to educate [A.K.] along side,” “it
simply did not have to educate a student like [A.K.].” (Id. at
2.) He further maintains the School District’s “exclusionary
posture was utterly malicious and effectuated with deliberate
and/or reckless indifference or with bad faith or gross
misjudgment” as underscored by its simultaneous refusal to
consider educating A.K. as a single student within an “alternately
assessed special class format” and “to apply for an age-variance

which would have facilitated [A.K.’s] inclusion within” the School
District’s existing “alternately assessed special class”. (Id.)
Then, as to his class-of-one equal protection claim,
Parent baldly purports A.K. “profile[s] as being educationally
similarly situate[d] to his identified class of comparators” in
the School District’s existing “alternately assessed special
class.” (Id.) To buttress his claim, Parent contends all the
students in the School District’s “alternately assessed special
class” were of differing ages and grade levels, like A.K.; yet,
those students were “determined to be educationally similar for
purposes of educational instruction and grouping.” (Id.)
Of note: None of Plaintiff’s arguments are supported by

citations to his Verified Complaint. (Compare PMC Response, in
toto, with Compl., ECF No. 1.)
2. Analysis

a. The ADA & Section 504 Claims
Having carefully reviewed Plaintiff’s Complaint,13 the
Court finds Plaintiff cannot make out a prima facie case under the

13 The Court has also considered Parent’s administrative due
process complaint and the transcripts of A.K.’s relevant annual
review, which Parent incorporated by reference. (See Case Docket,
Compl., ¶¶ 69, 90); see also Killoran August 2023 Order, 2023 WL
ADA or Section 504. While there is no dispute A.K. is disabled
under the terms of the ADA and Section 504 and the School District
is subject to both of those statutes, Plaintiff has failed to

allege facts that plausibly support his claims the School District
did not provide reasonable accommodations to A.K. or discriminated
against A.K. because of his disability, and thereby acted with
“deliberate or reckless indifference” or “bad faith” or gross
misjudgment.” See, e.g., Killoran August 2023 Order, 2023 WL
5532920, at *4-5. Instead, his Complaint is compiled of threadbare
recitals of the elements of his ADA cause of action (see, e.g.,
Compl. ¶¶ 71, 74, 78, 80, 82), and Section 504 cause of action
(see id. ¶ 91), supported by vague, conclusory statements (re: ADA
claim, see id. at ¶¶ 72, 73, 75-77, 81, 83, 84-86; re: Section 504
claim, see id. at ¶ 92), which does not suffice. See Killoran
August 2023 Order, 2023 WL 5532920, at *3 (quoting Harris v. Mills,

572 F.3d 66, 72 (2d Cir. 2009) (further citation omitted)); see
also Killoran March 2022 Order, 2022 WL 866816, at *8 (“Plaintiff
makes no allegation of bad faith or gross misjudgment on the part
of the [School] District; rather, he baldly alleges that ‘the

5532920, at *3 (in deciding a Rule 12(c) motion, “the Court is
confined to the allegations contained within the four corners of
[the] complaint”, which includes “any document attached to the
complaint, any statements or documents incorporated in the
complaint by reference, and document upon which the complaint
heavily relies, and anything of which judicial notice may be taken”
(internal quotation marks and citations omitted)).
school district’s actions reflect nothing short of abject malice,
gross indifference and/or retaliation against plaintiff.’ Such
conclusory allegations are insufficient to plausibly state a

discrimination claim.” (citations omitted)). In sum, Plaintiff’s
Complaint contains no factual allegations that would substantiate
plausible ADA or Section 504 claims.
Moreover, it is well-settled that “[e]vidence of an IDEA
violation, without more [] is insufficient to demonstrate a
violation under either [the ADA or Section 504].” 2d Cir. Brown
Appeal, 2023 WL 4503278, at *3 (citation omitted). Hence, Parent’s
reliance on the SRO’s decision that the School District violated
the IDEA for the 2019-2020 school year (see Compl. ¶ 89), without
more, is unavailing to maintain Parent’s ADA or Section 504 claims.
b. The Section 1983 Class-of-One Claim
Plaintiff’s class-of-one cause of action fairs no

better. Like other of his federal actions where he has brought
class-of-one equal protection claims, here, Parent fails to “point
to at least one other individual whose circumstances, aside from
being treated more favorably than plaintiff, are prima facie
identical in all other respects.” Killoran March 2022 Order, 2022
WL 866816, at *9 (quoting M.B., 2015 WL 3756875, at *10); see also
id. at *10 (where “Plaintiff fail[ed] to even identify another
student purportedly similar to A.K.”, dismissing Plaintiff’s
class-of-one claim since his bare-boned allegations, e.g., A.K.
“is being denied the right to a . . . FAPE . . . in the same manner
as all other special education students”, “fell well-short of
providing allegations plausibly supporting his claim that A.K. is

being treated differently from at least one other student whose
circumstances are identical to those of A.K”)); see also, e.g.,
Killoran August 2022 Order, 2022 WL 3309223, at *8 (notwithstanding
identifying three other alternately assessed students with Down
Syndrome, finding Parent’s allegations too general in nature to
plausibly allege an extremely high degree of similarity required
to maintain a class-of-one equal protection cause of action),
aff’d, 2d Cir. Seybert 2022 Appeal, 2023 WL 4503274, at *2
(“Plaintiffs allege that because A.K. and the comparators are
alternately assessed and because some of the comparators also have
Down syndrome, they are similarly situated. These allegations,
however, do not identify specific characteristics that apply to A.K.
and the comparators beyond those that could apply to any alternately
assessed student.”). Rather, and without even identifying them by
way of initials, Parent baldly states “there are three [other]

‘alternately assessed special education students’ who are being
afforded an education at the secondary level with the [D]efendant
[School D]istrict”, who “are all post-elementary aged students”, and
that a comparison of A.K.’s IEP with that of these other three student
“will reveal further inherent similarities existing between all of
them.” (Compl. ¶¶ 102-105; see also id. at ¶ 101 (“The plaintiff
submits that all ‘alternately assessed special education students’
inherently share similar student profiles and are this ‘similarly
situated’.”).) These class-of-one allegations are even vaguer than
those made in other complaints brought by Parent and which this Court
has repeatedly found wanting. See, e.g., Killoran August 2023 Order,
2023 WL 5532920, at *7-8 (rejecting more detailed allegations as “too
conclusory to plausibly allege the extremely high degree of similarity

required to state a cognizable class-of-one claims” (collecting other
Killoran cases dismissing class-of-one claims for deficiencies in
allegations of similarities with purported comparators)). Hence,
given the dearth of allegations of a high degree of similarity between
A.K. and any purported comparator alternately assessed special
education students, Plaintiff cannot prevail on his class-of-one
claim. See Ruston v. Town Bd. for Town of Skaneateles, 610 F.3d 55,
59 (2d Cir. 2010).
Finally, to the extent Parent attempts to rely upon the
age variance granted by the State’s Education Department for the
2022-2023 academic year, that is unavailing to support his
class-of-one claim. (See PMC Response at 2.) This case concerns the
2019-2020 school year. Thus, the issue is whether “A.K. was prima
facie identical to student’s in the School District’s [2019-2020]
school year 12:1:1 class.” Killoran August 2023 Order, 2023 WL
5532920, at *8. “[N]otwithstanding the NYSED’s[14] granting A.K. an

14 “NYSED” is the acronym for the New York State Education
Department.
age variance for a subsequent academic year, because Plaintiff fails
to plausibly allege how A.K.’s circumstances for the [2019-2020]
academic year were prima facie identical to any alleged similarly
situate[d] student, his [class-of-one] Equal Protection claim cannot
survive the present Dismissal Motion.” Id.
B. Case No. 22-CV-1632 (re: 2021-2022 School Year)

By this action, Parent seeks appellate review of the
March 11, 2022 Decision of SRO Bates regarding A.K.’s educational
placement for the 2021-2022 academic year. (See Case Docket,
Compl., ECF No. 1, ¶ 2 (identifying Bates Mar. 11, 2022 Decision,
No. 22-010); see also id. ¶¶ 3-84.) Parent has also brought claims
pursuant to the ADA and Section 504, as well as a class-of-one
equal protection claim; based upon these claims, Parent seeks
compensatory damages, compensatory education, and punitive
damages. (See id. at “WHEREFORE” clause.) Defendants do not seek
dismissal of Plaintiff’s IDEA claim; instead, they seek the
dismissal of “[P]laintiff’s claims for monetary damages and

equitable relief” sought pursuant to the ADA, Section 504, and
Section 1983. (Case Docket, PMC Letter, ECF No. 8.)
1. The Parties’ Positions
Once more, Defendants argue Parent’s ADA and Section 504
claims are based on no more than a violation of the IDEA, which is
insufficient to support such claims. (See id. at 1-2.) This
deficiency is compounded by the lack of plausible allegations of
deliberate or reckless indifference, bad faith, or gross
misjudgment. (See id. at 2.) Moreover, since Parent’s class-of-
one equal protection claim is supported by conclusory allegations

regarding purported comparators, he cannot maintain his equal
protection claim. (See id. (citing Killoran March 2022 Order,
2022 WL 866816, at *10).) To the extent Plaintiff seeks the
alternative remedy of having the School District create a new
program for A.K., Defendants maintain that is not an available
option. (See id. (citing Streck v. Bd. of Educ. of E. Greenbush
Sch. Dist., 280 F. App’x 66, 68 (2d Cir. 2008) (further citation
omitted)).) Defendants also contend Parent’s request for
equitable relief is equally untenable since he “fails to meet the
pleading standards for injunctive relief.” (Id. at 2-3.) Finally,
relying upon the Court’s Killoran March 22 Order, pertaining to
A.K’s 2020-2021 school year, in which the Court dismissed

Plaintiff’s ADA, Section 504, and Section 1983 claims, Defendants
assert said Order has preclusive effect here because Plaintiff
presents identical threadbare pleadings in this action. (See Case
Docket, PMC Letter at 3.)
In opposition and as to his ADA and Section 504 claims,
Parent generally argues the School District is at fault for
creating a situation where A.K. was outside the permitted
36-month-age-span for placement in the School District’s
“alternately assessed special classes” and, then, “refusing to
apply for an age-variance” for A.K. which would have permitted his
placement in such a class. (Case Docket, PMC Response, ECF No.
27, at 1-2.) Parent also contends his claim of discrimination is

based upon A.K.’s “status as an ‘alternately assessed special
education student’ which served as the basis for the [D]efendants’
exclusionary posture . . . .” (Id. at 2.) He does not articulate
any alleged deliberate or reckless indifference, bad faith, or
gross misjudgment by Defendants. (-Se-e- -id-.- at 1-2.)
Then, regarding his Section 1983 claim, Parent again
generally lays blame with Defendant School District asserting it
“refused to educate [A.K.] within a similar ‘special class format’
and actually exacerbated the situation by refusing to apply for an
age-variance for [A.K.] which could have facilitated his inclusion
within the [D]efendant [S]chool [D]istrict’s existing ‘special
class.’” (Id. at 3.) Without benefit of citation, Parent proceeds

to rely upon “a recent NYSED investigation” which “determined that
[A.K.] and his identified set of comparators were in fact
educationally similar[].” (Id.) He baldly contends “NYSED’s
finding actually profiles as prima-facie proof that the plaintiff
is educationally similar to his identified set of comparators.”
(Id.)
Further, Plaintiff would have the Court reject
Defendants’ alternative remedy argument, asserting what he seeks
is “already being afforded to other students”. (Id.) He also
argues that because he was “educated outside of the ‘least
restrictive environment (LRE)’”, “the only form of relief which is
capable of reconciling the damages suffered by [A.K.]” is

compensatory education. (Id. at 4.) Plaintiff does not address
his initial requests for compensatory or punitive damages. (See
id.; cf. Compl. at “WHEREFORE” clause.) Finally, Plaintiff argues
the issues and facts of this case are distinct from his case
brought under Case No. 20-CV-4121; therefore, the Court’s Killoran
March 22, 2022 Order should not bar the Court’s consideration of
this action. (See id. at 4.)
Like the prior case, Case No. 20-CV-4763, (see supra),
in this Opposition, Plaintiff does not support any of his arguments
with citations to his Verified Complaint. (Compare PMC Response,
in toto, with Compl., ECF No. 1.)
2. Analysis

a. The ADA & Section 504 Claims
After carefully reviewing Parent’s Complaint, for
substantially the same reasons articulated above (see supra at
17-19), Parent’s ADA and Section 504 Claims in this action are
dismissed. Notably absent are allegations of deliberate or
reckless indifference to A.K.’s rights or that the School District
acted with gross misjudgment. (See Compl., in toto.) To the
extent Parent purports Defendants acted with bad faith (see id.
¶¶ 116-127), his allegations are both conclusory and vague; they
fail to plausibly allege bad faith. Indeed, Parent’s allegations
are no more than a rehashing of his contention that A.K. has not
been provided with a FAPE by the School District, i.e., a

regurgitation of his IDEA claim. This is insufficient to support
his disability-based discrimination claims pursuant to the ADA or
Section 504. See Killoran March 22 Order, 2022 WL 866816, at *7.
Hence, these claims are dismissed.
b. The Section 1983 Class-of-One Claim
As this Court has repeatedly instructed regarding class-
of-one claims, “a complaint must make sufficient factual
allegations in support of [the applicable] similarity requirement”
and one must provide “more than a bare allegation that other
individuals were treated differently.” Killoran August 2022
Order, 2022 WL 3309223, at *4 (internal quotation marks omitted).
Yet, again, in support of his instant class-of-one equal protection

claim, Parent relies upon allegations about “all ‘alternately
assessed special education students’” as compared to A.K. (See
Compl. ¶¶ 96-105 (emphases added).) Such reliance is unavailing.
It does not approach the “extremely high degree of similarity”
between A.K. and a comparator, i.e., that the two are “prima facia
identical”, needed to plausibly allege a class-of-one claim. See
Killoran August 2022 Order, 2022 WL 3309223, at *6; see also
Killoran August 2023 Order, 2023 WL 5532920, at *7 (dismissing
class-of-one claim based upon allegations comparing “all
‘alternately assessed special education students’” with A.K.
because said allegations did not plausibly allege the requisite
extremely high degree of similarity between A.K. and purported

comparators). Parent’s allegations about four other “alternately
assessed special education students” being similarly situated to
A.K. fairs no better given the conclusory and vague nature of those
allegations. (See Compl. ¶¶ 92-93, 106-108.) Likewise, the fact
that three of those four students also have Down Syndrome, like
A.K., without more, does not plausibly allege the prima facie
identicalness required to maintain Parent’s class-of-one claim.
(See id. ¶¶ 106-108); cf. Killoran August 2022 Order, 2022 WL
3309223, at *7 (rejecting similar allegations as not sufficiently
prima facie identical to support a class-of-one claim where Parent
proffered as comparators other Down Syndrome, alternately assessed
special education students), aff’d, 2d Cir. Seybert 2022 Appeal,

2023 WL 4503274.
To the extent Plaintiff relies upon “a recent NYSED
investigation” to support his class-of-one claim for the subject
2021-2022 school year, his reliance is misplaced. First, the Court
presumes Parent is referring to the N.Y.S Education Department’s
March 6, 2023 Letter to the Superintendent of Schools for the
School District (hereafter, the “NYSED Letter”). (See Case No.
20-CV-4121, NYSED Letter, ECF No. 58 at 2-4.) Second, while the
underlying age variance request was initially submitted in October
2021 for the 2021-2022 school year, the variance was not granted
for that school year; instead, it was treated as a renewed
application for the 2022-2023 school year and, thereafter, granted

for that subsequent school year. (See id. at 2.) Third, according
to the N.Y.S. Education Department, inter alia: “[a]ge range
variances are limited in time and approved for only one school
year”; “special classes have the potential to change from year to
year”; and, “[t]he content of the curriculum and the focus of the
class must be adjusted on a yearly basis to meet the needs of the
students placed in the class”. (Id. at 3.) Moreover, the
determination that A.K. “has developmental and disability-related
needs similar to other students in the 12:1+1 middle/high school
special class” was made after a February 2023 site visit by N.Y.S.
Education Department staff and related to the 2022-2023 school
year. (Id. at 3-4.) Hence, its relevancy is limited to the 2022-

2023 school year and does not apply to the subject 2021-2022 school
year. Accordingly, as the Court has previously found,
“notwithstanding the NYSED’s granting A.K. an age variance for a
subsequent academic year, because Plaintiff fails to plausibly
allege how A.K.’s circumstances for the [2021-2022] academic year
were prima facie identical to any alleged similarly situate[d]
student, his [class-of-one] Equal Protection claim cannot survive
the present Dismissal Motion.” Killoran August 2023 Order, 2023
WL 5532920, at *8.
c. Plaintiff’s Request to Reopen
In this action, Plaintiff also moved the Court for an
order annulling the subject decisions of the IHO and the SRO and

remanding his administrative due process complaint back to the
N.Y.S. Education Department for reconsideration given the SEQA’s
ultimate approval of an age variance (hereafter, the “Reopen
Motion”). (See Case Docket, Motion for Order to Reopen, ECF No.
21.) Parent relies upon Title 8, Section 276.8 of New York Codes,
Rules and Regulations (“NYCRR”) for his requested relief. (See
id. at 3-4.) Defendants oppose the Reopen Motion arguing this
Court is without authority to provide such relief. (See Case
Docket, Reopen Motion Opp’n, ECF No. 22.) At the October 2023
Omnibus Hearing, the Court heard oral argument on the Reopen
Motion; it reserved decision.
Having reviewed the relevant filings and considered the

parties’ arguments for and against the Reopen Motion, said Motion
is denied. The Court agrees with Defendants that Section 276.8 of
Chapter IV of Title 8 of the NYCRR pertains to appeals and other
proceedings before the Commissioner of the N.Y.S. Education
Department, and not appeals before a federal district court, since
it clearly states: “Applications for reopening are addressed
solely to the discretion of the commissioner . . . .” 8 NYCRR
§ 276.8(a); (see also Reopen Motion Opp’n ¶ 9 (“No federal
authority exists providing a federal court jurisdiction to reopen
a final, state administrative decision pursuant to 8 NYCRR
[§] 276.8. That regulation provides that reopening petitions are
addressed ‘solely’ to the discretion of the [State Education

Department (“SED”)] Commissioner and it applies only to
administrative decisions which are before the SED Commissioner in
his or her role as an appellate adjudicator.”)). Plaintiff’s
reliance on Section 276.8(c) is equally unavailing, since it, too,
addresses the authority of the SED Commissioner regarding appeals
and other proceedings before him or her and not the authority of
federal courts deciding appeals of final decisions of the NYSED.
Cf. 20 U.S.C. § 1415(i)(2)(A). Moreover, as Defendants astutely
assert:
Based on the IDEA, a federal judge’s
jurisdiction is statutorily limited to hearing
only civil actions “with respect to the [due
process] complaint presented”; further,
federal jurisdiction exists only if the due
process complaint is before the federal court
as a final decision following exhaustion of
administrative procedures. Petitioner’s
motion to reopen rendered administrative
decisions is based on the incorrect assumption
that a federal judge can intervene at the
administrative level in a matter which is
before the federal court in final status, as
opposed to adjudicating the appeals of those
final administrative decisions.

(Reopen Motion Opp’n ¶ 8 (brackets in original; emphasis added)
(first citing 20 U.S.C. § 1415(i)(2)(A); then citing Cave v. E.
Meadow Union Free Sch. Dist., 514 F.3d 240, 245 (2d Cir. 2008)).)
Accordingly, the Reopen Motion is denied.
Nonetheless, the Court recognizes Parent’s frustration
given the unfolding of events within the context of the underlying
administrative proceeding and the corresponding state court

action, such that Parent was precluded from requesting
discretionary relief from the SED Commissioner. (See Reply to
Reopen Motion Opp’n, ECF No. 23.) However, Plaintiff’s IDEA cause
of action remains before this Court, together with his request for
compensatory education for Defendants’ alleged deprivation of a
FAPE for A.K. for the 2021-2022 school year. Given the unique
sequence of events regarding said school year and the October 2021
age variance request, pursuant to 20 U.S.C. § 1415(i)(2)(C)(ii),15
the Court will also consider additional evidence in deciding
whether a violation of the IDEA occurred during the 2021-2022
school year, thereby warranting an award of compensatory
education.

15 Clause (C) of § 1415(i)(2) provides:

In any action brought under this paragraph, the court-

(i) shall receive the records of the
administrative proceedings;
(ii) shall hear additional evidence at the
request of a party; and
(iii) basing its decision on the preponderance
of the evidence, shall grant such relief as
the court determines is appropriate.

20 U.S.C. § 1415.
C. Case No. 23-CV-1114 (re: 2021-2022 School Year16)
This action is Plaintiff’s appeal of SRO Hauge’s January
20, 2023 Decision, which dismissed Plaintiff’s appeal of IHO

Schiro’s December 14, 2022 Decision regarding Parent’s
administrative due process complaint (“ADPC”) initiated on the
basis that the School District’s termination of A.K.’s Aide and
threatened termination of A.K.’s Educational Consultant – both of
whom had allegedly advocated on behalf of A.K. – violated the IDEA.
At the administrative level, Parent claimed the School District’s
alleged retaliatory actions against the Aide and Educational
Consultant “impeded the appropriate discernment of [A.K.’s]
education placement, as well as his ability to receive a [FAPE],”
thereby violating the IDEA. (Case Docket, Compl., ECF No. 1, ¶ 4;
see also id. at ¶¶ 38, 39.) The SRO dismissed Parent’s appeal of
the IHO’s decision because she was “unable to discern specific

allegations regarding a denial of FAPE, and particularly with
respect to the identification, evaluation, or placement of [A.K.]”
since those allegations were “not sufficiently detailed to
describe how the actions impeded [A.K.’s] right to a FAPE, impeded
the [P]arent’s opportunity to participate in the decision-making

16 (See Case Docket, IHO Schiro Dec. 14, 2022 Decision, ECF No.
12-2 (identifying the 2021-2022 school year as the relevant
academic year).)
process, or caused a deprivation of educational benefits to [A.K.]”
(SRO Decision, ECF No. 12-3, at 6.)
In addition to appealing the SRO’s dismissal decision,

based upon Parent’s claimed violation of the IDEA due to the
alleged retaliatory treatment of A.K.’s Aide and Educational
Consultant by the School District, Parent also claims a violation
of Section 504. (See id., in toto.) He seeks: (1) “back-end
compensatory education”; (2) compensatory and punitive damages;
and (3) an equitable “order” removing Ambrosini as a CSE member.
1. The Parties’ Positions
Defendants seek dismissal of Plaintiff’s IDEA cause of
action for substantially the same reason articulated by the SRO in
dismissing Parent’s underlying ADPC, i.e., Parent’s allegations
are threadbare and conclusory; therefore, Parent fails to
plausibly state a violation of the IDEA. (Case Docket, PMC Letter,

ECF No. 7, at 3.) Relatedly, they contend Parent’s threadbare and
conclusory allegations do not meet federal pleading standards
warranting Rule 12(b)(6) dismissal. (See id. at 2.)
Similarly, as to Plaintiff’s Section 504 cause-of-
action, since are no allegations the School District: (1) “denied
A.K. a reasonable accommodation”; (2) “the [School] District
discriminated against A.K.”; or (3) “acted with deliberate or
reckless indifference, or bad faith or gross misjudgment”,
Plaintiff has not set forth a plausible Section 504 claim. (Id.)
Faced with such a void, Rule 12(b)(6) dismissal is proper. (See
id.)
Finally, to the extent Plaintiff alleges McLaughlin was

intimidated to change her recommendation regarding A.K.’s
educational placement with threats the School District would
terminate her company’s contract with it, because this was not put
forth by Plaintiff in the ADPC, Defendants maintain this is an
unexhausted claim. Therefore, it must be dismissed pursuant to
Rule 12(b)(1). (See id. at 1.) Moreover, Defendants purport the
allegations regarding McLaughlin are subject to dismissal on
grounds of res judicata and collateral estoppel. (See id.; see
also id. n.1.)
In opposing Defendants’ Rule 12(b)(6) dismissal request,
Parent would have this Court rule upon his alleged IDEA-related
retaliation claim. His opposition raises three arguments with

purported facts not found in his Complaint. (Compare Case Docket,
Compl., with PMC Response, ECF No. 14.) For example, as to A.K.’s
Aide: Parent argues the School District “staff[ed] a habitually
intoxicated teacher to teach [A.K.]” and that when the Aide
reported this to the School District, she was fired in retaliation.
(See id. at 3.) Yet, the Aide “was simply seeking to facilitate,
protect[,] and preserve [A.K.’s] right to receive a FAPE by
reporting an extremely gross abuse that was occurring.” (Id. at
2, 3.) Similarly, as to the Educational Consultant: Parent
contends the Consultant “was knowledgeable of what was occurring
with the intoxicated teacher, as well as a host of other abuses
that were occurring to [A.K.] and had voiced her concern [to] the

[D]efendants”, which resulted in the School District curtailing
the Consultant’s “involvement not only with [A.K.], but with other
students in the . . . [S]chool [D]istrict” (Id. at 4.) Parent
argues the Consultant “was simply seeking to facilitate, protect,
and preserve [A.K.’s] right to a FAPE, and thus was simply acting
to facilitate, protect[,] and preserve a ‘protected activity’ as
contemplated by the IDEA and [Section] 504.” (Id.) Therefore,
the School District’s alleged curtailing of the Consultant’s
involvement with A.K. and other students was retaliatory, thereby
violating the IDEA and Section 504. (See id.)
Regarding claims based upon alleged interference with
and retaliation against McLaughlin, Plaintiff would have the Court

reject Defendants’ exhaustion and res judicata arguments. First,
he contends administrative exhaustion would be futile given an
earlier ruling by the IHO that retaliatory actions inflicted upon
McLaughlin would not be recognized as violating the IDEA. (See
id. at 5.) Second, Plaintiff argues res judicate is inapplicable
as the prior ruling relates to a different set of circumstances
and a different school year, but fails to identify either those
circumstances or school year. (See id.)
Finally, Parent asserts this Court should not afford
deference to the IHO’s or SRO’s decisions since whether
interference with and retaliation against third-parties “who are

engaged in ‘protected activity’ as contemplated by the IDEA and
[Section] 504” by advocating for a disabled person’s rights to a
FAPE is not an issue within the purview of the administrative
agencies who are the experts in deciding issues of educational
policy. (See id.)
2. Analysis
a. The IDEA Cause of Action
Measured consideration of Parent’s Complaint, as well as
the underlying SRO’s and IHO’s decisions giving rise to this
action, compel the conclusion that Parent fails to plausibly allege
a violation of IDEA. Indeed, the Court agrees with Defendants
that Plaintiff’s purported allegations are actually “bald and

threadbare conclusory legal contentions devoid of factual
support.” (PMC Letter at 2-3.) Rather, much like SRO Hauge, it
is difficult for this Court “to discern specific allegations
regarding a denial of FAPE and particularly with respect to the
identification, evaluation, or placement of [A.K.]” (Case Docket,
SRO Hauge Jan. 20, 2023 Decision, ECF No. 12-3, at 6.) That is so
because, as with his ADPC, in the instant Complaint, “the
[P]arent’s claims that the alleged intimidation, interference, and
retaliation [of A.K.’s Aide and Consultant] compromised [A.K’s]
IDEA protections are not sufficiently detailed to describe how the
actions impeded [A.K.’s] right to a FAPE, impeded the [P]arent’s
opportunity to participate in the decision-making process, or

caused a deprivation of educational benefits to [A.K.]” (Id.
(citations omitted).) Even assuming, arguendo, Parent could
maintain an IDEA-based retaliation claim premised upon actions
directed to third-parties, his Complaint is devoid of factual
allegations plausibly tethering those actions to the alleged
deprivation of a FAPE for A.K. (Compare id. at 7,17 with Compl.)

17 As SRO Hauge astutely stated:

Although the [P]arent’s most compelling
argument would be that the [School D]istrict’s
actions influenced the recommendations made at
[A.K.’s] CSE meetings, the [P]arent is not
objecting to any recommendations made by the
[School D]istrict in this [administrative due
process] proceeding. Additionally, as noted
by the IHO, the [P]arent has raised challenges
to the [School D]istrict’s programming in
prior hearings and for the 2021-22 school
year, and an SRO determined that the [School
D]istrict did not deny [A.K.] a FAPE.
Additionally, in that proceeding and in a more
recent proceeding regarding an April 2022 CSE
meeting for [A.K.], SROs have determined that
the [P]arent was able to fully participate in
the development of the student’s educational
programs. Accordingly, without a more
detailed allegation as to how any acts of
interference or retaliation on the part of the
[School D]istrict against staff employed by
the [School D]istrict impacted the
identification, evaluation, or educational
placement of the students, or the provision of
a FAPE to [A.K.], the [P]arent’s due process
complaint notice does not provide a claim that
Moreover, Parent’s contention “that it should be obvious that when
a school district attempts to influence the educational placement
decisions and methodological decisions of CSE member[s] and

related service providers under the threat of employment
termination that the independent rights of the subject student are
inextricably directly effected” (Compl. ¶ 44), is merely a
speculative conclusion, which does not plausibly allege an IDEA
violation. (Cf. SRO Hauge Jan. 20, 2023 Decision at 8 (stating
“[P]arent’s general claims about implementation of an IEP fail to
contain a reference to a specific IEP or service that has not been
implemented”); see also IHO Schiro Dec. 14, 2022 Decision at 5
(stating, in the instant underlying ADPC, Parent withdrew
challenge regarding School District’s alleged failure to complete
A.K.’s “annual review CSE” for the 2022-2023 school year because
it was the subject of another ADPC).) To the extent Plaintiff

seeks to maintain this cause of action by rectifying the dearth of
plausible factual allegations in his Complaint by making such
allegations in his Opposition, that attempt is unavailing; one
cannot amend a complaint by asserting purported facts in an

can properly be adjudicated at an impartial
hearing.

(SRO Hauge Jan. 20, 2023 Decision at 7 (citations omitted).) The
same holds true here: Plaintiff’s bald, conclusory allegations
that A.K. was denied a FAPE in the absence of plausible factual
allegations supporting same do not present an actionable IDEA
claim.
opposition to a dismissal motion. See Killoran March 2022 Order,
2022 WL 866816, at *7 n.9 (quoting K.D. ex rel. Duncan v. White
Plains Sch. Dist., 921 F. Supp. 2d 197, 209 n.8 (S.D.N.Y. 2013)

(citation omitted)).
As to Parent’s claims regarding McLaughlin, the Court is
wholly unconvinced Parent states a plausible IDEA-violation
claim.18 In the vaguest manner, Parent generally complains “that
within the context of an actual due process hearing,” Ambrosini
“sent a clandestine correspondence” allegedly threatening to
terminate the employment of McLaughlin’s company if McLaughlin did
not make the educational placement recommendation for A.K. that
Ambrosini sought. (Compl. ¶ 25.) Notably absent are: the date of
this correspondence (see id. ¶¶ 25, 28); the date of the due
process hearing (see id.); and, factual allegations supporting
Parent’s contention A.K. was denied a FAPE (see id. ¶¶ 22-29).

18 Having carefully reviewed the administrative record below, in
this instance, the Court finds Parent sufficiently exhausted this
claim at the administrative level. While Parent’s ADPC did not
specifically reference a correspondence from Ambrosini to
McLaughlin, in its due process answer and motion to dismiss, the
School District did. (Compare NYSED IHRS Case No. 571788, Due
Process Compl., ECF No. 15-5 at 4-7, with NYSED IHRS Case No.
571788, Due Process Ans. & Mot. Dismiss, ECF No. 15-5 at 9-27, and
Ex. B, IHRS Case No. 556183, IHO Schiro Nov. 12, 2021 Decision,
attached to Ans. & Mot. Dismiss.) Therefore, the issue of a
correspondence from Ambrosini to McLaughlin was presented below.
See generally Compensatory Ed. Denial Order, 2022 WL 954851, at
*6. Accordingly, the Court declines to dismiss this claim pursuant
to Rule 12(b)(1).
Such threadbare allegations fail to plausibly allege an IDEA-based
violation.19 See generally Killoran March 2022 Order, 2022 WL
866816, at *3; see also id. at *8 (“It is well-settled that a

complaint’s factual allegations must be enough to raise a right to
relief above the speculative level. Thus, as is the case here,
where the complaint tenders naked assertions devoid of further

19 Moreover, the Court would be remiss if it did not note it finds
Parent’s allegations regarding McLaughlin to be specious. In one
of its dismissal arguments presented to this Court, Defendants
contend the Court previously considered and rejected a Section 504
claim by Plaintiff based upon a correspondence from Ambrosini to
McLaughlin. (See PMC Letter at n.1 (citing, inter alia, Killoran
v. Westhampton Beach Sch. Dist., No. 21-CV-3264, 2022 WL 4484630
(E.D.N.Y. Sept. 27, 2022) (defining “Correspondence” to be a March
5, 2021 letter from Ambrosini to McLaughlin regarding McLaughlin’s
placement recommendation for A.K.)).) Indeed, in its Killoran
September 2022 Order, pursuant to Rule 12(b)(1), this Court found
Parent lacked standing to bring claims on behalf of third-party
McLaughlin; therefore, it dismissed Parent’s purported ADA-based
and Section 504-based retaliation claims, as well as a Section
1983 free-speech claim, which claims were based upon the
Correspondence. Of relevance here, in the Killoran September 2022
Order, this Court stated: “[N]owhere in their Complaint do
Plaintiffs allege that after receiving the Correspondence, Dr.
McLaughlin changed her recommendation for A.K.’s placement, or
that A.K. was in fact denied benefits or services required by the
Rehabilitation Act or the ADA.” Id. at *7.
Given his apparent avoidance in identifying the
correspondence to which he refers in the instant Complaint, but
given its otherwise close similarities to the Correspondence
addressed in the Killoran September 2022 Order, it is likely Parent
is, indeed, referring to the same Correspondence which this Court
already found was insufficient to maintain retaliation-based
claims under the ADA and Section 504. Neither reliance upon the
Correspondence nor Parent’s present allegations fare any better to
plausibly state an IDEA-based retaliation claim, assuming,
arguendo, such a claim exists. Cf., e.g., Collins v. City of N.Y.,
156 F. Supp. 3d 448, 457 (S.D.N.Y. 2016) (stating the “IDEA does
not protect individuals from retaliation for attempting to enforce
the IDEA”).
factual enhancement, the plaintiff has not nudged his claim across
the line from conceivable to plausible, thereby compelling
dismissal of the complaint.” (internal quotation marks and

citations omitted)). On this basis, Parent’s IDEA-based
retaliation claim regarding McLaughlin is dismissed.
b. The Section 504 Cause of Action
Again, after carefully reviewing Plaintiff’s Complaint,
the Court finds Plaintiff has failed to plausibly allege a cause
of action under Section 504. Notwithstanding that A.K. is disabled
under the terms of Section 504, to which the School District is
subjected, Plaintiff’s Complaint lacks allegations that plausibly
support his claims the School District did not provide reasonable
accommodations to A.K. or discriminated against A.K. because of
his disability. See Killoran March 22 Order, 2022 WL 866816, at
*7. Additionally, as Defendants aptly argue, “there are no

allegations that the [School] District acted with deliberate or
reckless indifference, or bad faith or gross misjudgment.” (PMC
Letter at 3 (citing Killoran August 2023 Order, 2023 WL 5532920,
at *7-8).) This is fatal to Parent’s Section 504 claim since such
allegations are required to plausibly state a Section 504
discrimination cause of action. See Pape, 2013 WL 3929630, at *11
(stating one must show a school district acted with deliberate or
reckless indifference to a student’s federally protected rights or
with bad faith or gross misjudgment to maintain a Section 504 cause
of action (collecting cases)); S.W., 528 F. Supp. 2d at 290
(“[P]laintiffs can rely on Section 504 to claim they are denied
access to a free appropriate education, as compared to the free

appropriate education non-disabled students receive, if they can
show that Defendants acted with bad faith or gross misjudgment in
the administration of disability services.” (emphasis added)).
Indeed, Plaintiff’s Section 504 cause of action is little more
than a restatement of his IDEA claim which, as this Court has
repeatedly instructed Plaintiff, without more, is insufficient to
survive a dismissal motion challenging a Section 504 claim;
therefore, this Section 504 claim is dismissed.
D. Case No. 23-CV-1115 (re: 2021-2022 School Year)
By this action, Parent challenges the January 18, 2023
Decision of SRO Harrington dismissing Parent’s appeal of IHO
Schiro’s November 23, 2022 Decision wherein the IHO found the

School District did not fail to provide A.K. a FAPE for the
2021-2022 School Year. (See Case Docket, Compl., ECF No. 1, ¶ 13.)
At the administrative level, Parent argued the School District
inadequately administered, disseminated, and used the N.Y.S.
alternate Assessment Test (hereafter, the “Test”). In his instant
Complaint, Parent alleges the School District “violated the IDEA,
and thus by extension, [A.K.’s] right to receive an ‘appropriately
ambitious’ FAPE, by virtue of failing to meaningfully utilize his
‘alternate assessment testing results’ towards the development of
his PLEPS[, i.e., “present levels of educational performance”,]
and the formulation of his academic goals for the 2021-2022
academic year.” (See id. at “WHEREFORE” clause.) He brings claims

based upon alleged violations of the IDEA and Section 504; Parent
seeks “back-end compensatory education”. (See id.)
1. The Parties’ Positions
Because the School District answered the Complaint (see
Case Docket, Answer, ECF No. 7 (denying Plaintiff’s substantive
allegations)), it moves for dismissal pursuant to Rule 12(c). (See
Case Docket, PMC Motion, ECF No. 8.) Its dismissal request is
confined to Plaintiff’s purported Section 504 Claim only and not
Plaintiff’s IDEA Claim.
The School District maintains “[n]one of the allegations
in the Complaint support a claim that [it] violated Section 504,”
highlighting that “the Complaint cited Section 504 in only two

instances.” (Id. at 1 (citing Compl., ¶ 2, and “WHEREFORE”
clause).) In addition to the well-established three-pronged prima
facie showing a plaintiff must make to maintain a Section 504 claim
(see, e.g., supra at 10-11 (quoting 2d Cir. Brown Appeal, 2023 WL
4503278, at *2-3)), the School District relies upon the Second
Circuit’s instruction that, as to the third prong, i.e., showing
a defendant’s exclusion or discrimination was due to a plaintiff’s
disability, “[e]xclusion or discrimination may take the form of
disparate treatment, disparate impact, or failure to make a
reasonable accommodation.” (PMC Letter at 2 (quoting B.C. v. Mount
Vernon Sch. Dist., 837 F.3d 152, 158 (2d Cir. 2016)).) With that
focus, it articulates three arguments in support of dismissal.

The School District first argues Plaintiff’s Complaint lacks
allegations supporting a contention that its “administration,
utilization, and dissemination of the NYSAA evaluation constituted
disparate treatment of A.K. based on disability discrimination.”
(Id. at 2.) In that vein, Parent’s Section 504-related allegations
are that same as those alleged to make out an IDEA claim, which,
without more, e.g., allegations of bad faith or gross misjudgment
based on disability discrimination, are insufficient to show
disparate treatment. (See id.) The School District next asserts
Plaintiff’s Section 504 claim cannot be one based upon a disparate
impact theory since Parent does not point to a necessary “facially
neutral policy” relating to NYSAA results which cause a

disproportionate impact on a protected group of people. (See id.
at 2-3 (“Here, the Complaint did not allege a neutral policy
regarding the NYSAA evaluation which significantly affected a
protected group to which A.K. belonged.”).) Finally, since there
are no allegations of a request for and denial of reasonable
accommodations related to the NYSAA evaluation permitting A.K. to
have meaningful access to the benefits of a FAPE, the School
District maintains Parent cannot advance his purported Section 504
claim on this basis. (See id. at 3.)
To the extent he opposes the School District’s request
to dismiss the purported Section 504 claim, Plaintiff would have
the Court find the claim to be viable because the School District

did not use “mandatory” alternate assessment testing in the
development of A.K.’s academic goals. (Case Docket, PMC Response,
ECF No. 15, at 2-3.) Parent baldly contends, “a school district’s
failure to utilize the standardized testing that is expressly
mandated by regulation for use with ‘alternately assessed
students’ is discriminatory because it illuminates disparate
treatment and moreover effectuates a disparate impact.” (Id.) He
then postures:
[T]he utilization of an “alternately assessed
student’s” “alternate assessment testing
results” is absolutely fundamentally
essential towards the provision of a FAPE,
just a[s] conventional standardized testing
has been deemed absolutely fundamentally
essential towards the appropriate education of
non-disabled students. Indeed, this is why it
is mandated by regulation. . . . [T]o deem
otherwise is patently discriminatory and
moreover effectively facilitates a
deprivation upon a disabled person’s right to
a FAPE.

(Id.) Notably absent from Parent’s arguments are citations to
allegations in his Complaint regarding either disparate treatment
suffered by A.K. because of his disabilities or any disparate
impact A.K. suffered due to said disabilities.
2. Analysis
Notwithstanding Parent’s cursory arguments to the
contrary, a fair reading of Plaintiff’s Complaint warrants the

conclusion that, to the extent he asserts a cause of action
premised upon Section 504, it is not advanced on either a theory
of disparate treatment or disparate impact. (See Compl., in toto);
cf. B.C., 837 F.3d at 158-61 (instructing on the need for
statistical evidence). Indeed, Parent has not included any
allegations regarding the different treatment received by A.K.
versus other students, abled or disabled. Rather, at most, Parent
has alleged a violation of Section 504 premised upon the School
District’s alleged violation of A.K.’s IDEA rights to a FAPE.
Without more, such a defectively alleged Section 504 claim cannot
survive a dismissal motion. See Killoran March 2022 Order, 2022
WL 866816, at *7 (“[A] violation of the IDEA, without more, is

insufficient to support a claim of disability-based discrimination
under the ADA or Section 504.” (citing French, 476 F. App’x 468,
472-73)). Instead, there must be plausible allegations “that the
[S]chool [D]istrict acted with ‘deliberate or reckless
indifference to the student’s federally protected rights’ or with
‘bad faith or gross misjudgment.’” Id. (quoting Pape, 2013 WL
3929630, at *11). Because there are no such allegations in the
instant Complaint, Parent does not plausibly allege a viable
Section 504 claim. Therefore, the School District’s Dismissal
Motion is granted, and Plaintiff’s Section 504 cause of action is
dismissed.
E. Leave to Amend

Since Plaintiff has not requested leave to amend any of
the subject Complaints discussed in this Omnibus Order, he has not
articulated any cures he would make to his pleadings to address
their deficiencies. See generally, e.g., TechnoMarine SA v.
Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (instructing a
“plaintiff need not be given leave to amend if [he] fails to
specify either to the district court or to the court of appeals
how amendment would cure the pleading deficiencies in [his]
complaint”). Considering: (1) the absence of a request to amend;
(2) pro se Parent is, nonetheless, an attorney, whose filings are
not entitled to special solicitudes; and (3) the expansive filing
history of actions in this Court, in conjunction with this Court’s

having previously provided Parent unsolicited opportunities to
file amended complaints, only to have such amended complaints again
dismissed for failing to plausibly allege causes of action pursuant
to the ADA, Section 504, and Section 1983, see, e.g., Killoran v.
Westhampton Beach Sch. Dist., Case No. 19-cv-6663 (E.D.N.Y.), and
Killoran v. Westhampton Beach Sch. Dist., Case No. 20-CV-4121
(E.D.N.Y.),20 the Court declines to sua sponte grant Parent leave

20 Indeed, given the history of Parent failing to cure deficiencies
in his pleadings when the Court has afforded him unsolicited leave
to amend any of the subject Complaints. Cf. Porat v. Lincoln
Towers Cmty. Ass’n, 464 F.3d 274, 276 (2d Cir. 2006) (holding
district court did not abuse discretion in not addressing informal

request to amend especially where “counsel did not advise the
district court how the complaint’s defects would be cured”).
CONCLUSION
Accordingly, IT IS HEREBY ORDERED:
I. As to Case No. 20-CV-4763:
The Defendants’ Motion to Dismiss (ECF No. 25 (construed
as Defendants’ Dismissal Motion)) is GRANTED; Plaintiff’s
remaining ADA, Section 504, and Section 1983 Class-of-One causes
are DISMISSED. The Clerk of Court is directed to CLOSE this case.
II. As to Case No. 22-CV-1632:
A. The Defendants’ Partial Motion to Dismiss (ECF No. 8
(construed as Defendants’ Dismissal Motion)) is GRANTED;

Plaintiff’s ADA, Section 504, and Section 1983 Class-of-One causes
of action are DISMISSED;
B. Plaintiff’s Motion to Reopen (ECF No. 21) is DENIED;
C. As to Plaintiff’s remaining IDEA cause of action:
1. Plaintiff shall serve a motion for summary
judgment by no later than March 29, 2024;

to amend in other cases before it, the Court is hard-pressed to
find such opportunities here would rectify Parent’s deficient
pleadings.
2. The School District shall have until May 3, 2024 to
serve its response;
3. Plaintiff shall have until May 24, 2024 to file a
reply, if any; and
4. As the moving party, once the summary judgment
motion is fully briefed, Plaintiff is to file said
fully briefed motion with the Court and ensure
courtesy copies of same are provided to Chambers;
and
D. In pursuing his remaining IDEA cause of action via
summary judgment motion, in addition to the submitted
administrative record (see ECF No. 7), in accordance with the
Court’s ruling (see supra at 31):
1. Plaintiff may file additional evidence to support
his claim of a violation of the IDEA by Defendants
for the Court’s consideration;
2. Said submission of additional evidence, if any, is
to be in the form of a Local Rule 56.1 Statement
and is to be served together with Plaintiff’s
summary judgment motion; and
3. Defendants may file a responsive counterstatement,
which is to be served together with their response
to Plaintiff’s summary judgment motion.
III. As to Case No. 23-CV-1114:
The Defendants’ Motion to Dismiss (ECF No. 7 (construed
as Defendants’ Dismissal Motion)) is GRANTED; Plaintiff’s
Complaint is DISMISSED. The Clerk of Court is directed to CLOSE
this case.
IV. As to Case No. 23-CV-1115:
A. The School District’s Partial Motion to Dismiss (ECF No.
8 (construed as School District’s Dismissal Motion)) is GRANTED;

Plaintiff’s Section 504 cause of action is DISMISSED;
B. If Plaintiff intends to pursue his remaining IDEA cause
of action:
1. He is to promptly cause the relevant administrative
record to be filed with this Court;
2. Within 30 days of the filing of the administrative
record, Plaintiff shall serve his motion for
summary judgment;
3. The School District shall have 30 days thereafter
to serve its response;
4. Plaintiff shall have 21 days after service of the
School District’s response to file a reply, if any;
and
5. As the moving party, once the summary judgment
motion is fully briefed, Plaintiff is to file said
fully briefed motion with the Court and ensure
courtesy copies of same are provided to Chambers;
and
C. If Plaintiff does not intend to pursue his remaining
IDEA cause of action, he is to promptly file a Notice of
Discontinuance.
SO ORDERED.

/s/ JOANNA SEYBERT
JOANNA SEYBERT, U.S.D.J

Dated: February 26, 2024
Central Islip, New York

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10311285. Public record. Not legal advice.