# Lau v. NYSARC Trust Service, Inc.

> District Court, N.D. New York · September 28, 2020

URL: https://www.frixlaw.com/law-library/cases/10313277

## Case

- **Court:** District Court, N.D. New York
- **Decided:** September 28, 2020
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

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## Opinion text

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK

JOHN DOE,
Plaintiff,
V.
No. 1:20-CV-801
5 NYSARC TRUST SERVICE, INC. et al., (BKS/CFH)
Defendants.

APPEARANCES:
John Doe
P.O. Box 1482
New York, New York
Plaintiff pro se
REPORT-RECOMMENDATION AND ORDER
Il. In Forma Pauperis
Plaintiff pro se (“plaintiff’)' commenced this action on February 20, 2020, by filing
a complaint. See Dkt. No. 1 (“Compl.”). In lieu of paying this Court's filing fee, he
submitted a motion to proceed in forma pauperis (“IFP”). See Dkt. No. 2. The
undersigned has reviewed plaintiff's IFP motion and determines that he may properly
proceed IFP.2

The undersigned notes that plaintiff is a particularly litigious individual who has filed numerous actions
in other courts. See, e.g., Lau v. Am. Eagle Outfitters, No. 17-CV-6055 (GBD/BCM), 2017 WL 6987996,
at *1 (S.D.N.Y. Dec. 1, 2017) (“Plaintiff . . . is not a stranger to this [cJourt. Because of his “extensive
history of filing frivolous complaints,” both here and in other courts, he has been barred from filing any
new cases in forma pauperis (IFP) “without first obtaining from the [cJourt leave to file.”) (quoting Lau v.
Match.Com, et.al, Case No. 13-CV-2938 (S.D.N.Y. Jan 28, 2014) (Order)), report and recommendation
adopted, No. 17-CV-6055 (GBD/BCM), 2018 WL 461102 (S.D.N.Y. Jan. 16, 2018).
2 Plaintiff is advised that although he has been granted IFP status, he is still required to pay any fees and
costs he may incur in this action, including but not limited to copying fees, transcript fees, and witness
fees.

ll. Initial Review
A. Legal Standard
Section 1915 of Title 28 of the United States Code directs that, when a plaintiff
seeks to proceed IFP, “the court shall dismiss the case at any time if the court
determines that... the action or appeal (i) is frivolous or malicious; (ii) fails to state a
| claim on which relief may be granted; or (iii) seeks monetary relief against a defendant
who is immune from such relief.” 28 U.S.C. § 1915(e)(2)(B). Thus, it is a court's
responsibility to determine that a plaintiff may properly maintain his complaint before
permitting him to proceed with his action.
Where, as here, the plaintiff proceeds pro se, “the court must construe his
submissions liberally and interpret them to raise the strongest arguments that they
Suggest.” Kirkland v. Cablevision Sys., 760 F.3d 223, 224 (2d Cir. 2014) (per curiam)
(internal quotation marks omitted). However, this does not mean the Court is required
to accept unsupported allegations that are devoid of sufficient facts or claims. Although
detailed allegations are not required at the pleading stage, the complaint must still
include enough facts to provide the defendants with notice of the claims against them
and the grounds upon which these claims are based. See Ashcroft v. Iqbal, 556 U.S.
678 (2009); Bell Atlantic v. Twombly, 550 U.S. 544, 555-56 (2007). Ultimately, the
plaintiff must plead “enough facts to state a claim to relief that is plausible on its face.”
Twombly, 550 U.S. at 570.
Pleading guidelines are set forth in the Federal Rules of Civil Procedure (“Fed. R.
Civ. P.”). Specifically, Rule 8 provides that a pleading which sets forth a claim for relief
shall contain, among other things, “a short and plain statement of the claim showing tha

the pleader is entitled to relief.” FED. R. Civ. P. 8(a)(2). “The purpose . . . is to give fair
notice of the claim being asserted so as to permit the adverse party the opportunity to
file a responsive answer, prepare an adequate defense and determine whether the
doctrine of res judicata is applicable.” Flores v. Graphtex, 189 F.R.D. 54, 54 (N.D.N.Y.
1999) (internal quotation marks and citations omitted). Rule 8 also requires the
o pleading to include:
(1) a short and plain statement of the grounds for the court’s
jurisdiction...
(2) a short and plain statement of the claim showing that the
pleader is entitled to relief; and
(3) a demand for the relief sought .. . .
R. Civ. P. 8(a). Although “[nJo technical form is required,” the Federal Rules make
Clear that each allegation contained in the pleading “must be simple, concise, and
direct.” Id. at 8(d).
Further, Rule 10 of the Federal Rules provides in pertinent part that:
[a] party must state its claims or defenses in numbered
paragraphs, each limited as far as practicable to a single set
of circumstances. A later pleading may refer by number to a
paragraph in an earlier pleading. If doing so would promote
clarity, each claim founded on a separate transaction or
occurrence — and each defense other than a denial — must
be stated in a separate count or defense.
FED. R. Civ. P. 10(b). This serves the purpose of “provid[ing] an easy mode of
identification for referring to a particular paragraph in a prior pleading[.]’ Flores, 189
F.R.D. at 54 (internal quotation marks and citations omitted). A complaint that fails to
comply with the pleading requirements “presents far too a heavy burden in terms of
defendants’ duty to shape a comprehensive defense and provides no meaningful basis

for the Court to assess the sufficiency of their claims.” Gonzales v. Wing, 167 F.R.D.
352, 355 (N.D.N.Y. 1996). As the Second Circuit has held, “[w]hen a complaint does
not comply with the requirement that it be short and plain, the court has the power, on
its own initiative . . . to dismiss the complaint.” Salahuddin v. Cuomo, 861 F.2d 40, 42
(2d Cir. 1988) (citations omitted). However, “[d]ismissal . . . is usually reserved for
| those cases in which the complaint is so confused, ambiguous, vague, or otherwise
unintelligible that its true substance, if any, is well disguised.” Id. (citations omitted). In
such cases of dismissal, particularly when reviewing a pro se complaint, the court
generally affords the plaintiff leave to amend the complaint. See Simmons v. Abruzzo,
49 F.3d 83, 86-87 (2d Cir. 1995). A court should not dismiss a complaint if the plaintiff
has stated “enough facts to state a claim to relief that is plausible on its face.” Twombly,
m|550 U.S. at 570. “A claim has facial plausibility when the plaintiff pleads factual content
that allows the court to draw the reasonable inference that the defendant is liable for the
misconduct alleged.” Iqbal, 556 U.S. at 678 (citation omitted).

B. Plaintiff's Amended Complaint
Plaintiff filed his original complaint on July 16, 2020. See Dkt. No. 1. He then

| filed an amended complaint on August 31, 2020, which supersedes his original
complaint. See Dkt. No. 10 (“Amen. Compl.”); see also Int'l Controls Corp. v. Vesco,
556 F.2d 665, 668 (2d Cir. 1977) (“It is well established that an amended complaint
ordinarily supersedes the original, and renders it of no legal effect.”). Thus, presently
pending before the undersigned for review pursuant to 28 U.S.C. § 1915 is plaintiff's
amended complaint.

Liberally construed, plaintiff's amended complaint asserts causes of action
pursuant to Title Ill of the Americans with Disabilities Act (“ADA”) and the New York
State Human Rights Law (“NYSHRL”), alleging disability discrimination and failure to
provide reasonable accommodations; and New York State law claims for intentional
infliction of emotional distress, assault and battery, and respondeat superior liability.
| See Dkt. Not. 10 (Amen. Compl.) at 12-14. Plaintiff names as defendants NYSARC
Trust Services, Inc. (“NYSARC”), a non-profit business in Albany County; Warren H.
Heillbronner, Esq. (“Heillbronner’), the Trustee and Chairman of the Board of NYSARC;
Heidi J. Flatt, CPA (“Flatt”), Director and Chief Operating Officer of NYSARC; Nancy E.
Cannon, CPA (“Cannon”), Director and Assistant Chief Operating Officer of NYSARC;
Nadia Arginteano, Esq. (“Arginteano”), Trust Attorney at NYSARC; Dorothy Zyskowski
m| (“Zyskowski”), Director of Trusts at NYSARC; Alison Wilkinson (“Wilkinson”), plaintiff's
former case manager at NYSARC; Candace Johnstone (“Johnstone”), trust
manager/administrator at NYSARC; Jaimie Harla (“Harla”), team leader-trust
administration’; Laura A. Kennedy (“Kennedy”), President of NYSARC; Tina F.
Seaburg, Esq. (“Seaburg’), interim Executive Director of NYSARC; John or Jane Doe,
Il, Vice President of NYSARC; Jamie Doe, assistant trust manager; and Julie Doe. See
m| Amen. Compl. at 1.
Plaintiff alleges that, on January 5, 2019, he travelled to Albany, New York, for a
appointment with Johnstone concerning his pooled supplemental needs trust. See
Amen. Compl. at 4 J 20, 5 J 21. Plaintiff posits that, at some point after arriving inside

3 Jamie Harla is not listed as a defendant on CM/ECF, but is listed as a defendant n plaintiffs amended
complaint. See Dkt. No. 10 (“Amen. Compl.”) at 1. The Clerk of the Court is respectfully directed to add
Jamie Harla as a defendant in this action.

NYSARC’s lobby, Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla, Seaburg,
and “John Doe or Jane Doe as the Vice President of the NYSARC . . . ejected and
removed [plaintiff against his will from the subject premises.” Id. at5 921. He
contends that Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Jamie Doe,
Seaburg, and “John Doe or Jane Doe as the Vice President of the NYSARC ...
[a]dvised [p]laintiff that his eject [sic] because schizophrenia and mild mental
retardation, both of which impairments have lasted several years and significantly impai
[sic] one or more of his major life activities[,] including working and self[-]care.” Id. at 5-
6 22. Plaintiff alleges that, “[rjather than engaged [sic] in a dialogue with [p]laintiff to
identify some mutually agreeable or otherwise reasonable accommodation to
[p]laintiff[,]” Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla, Seaburg, and
“John Doe or Jane Doe as the Vice President of the NYSARC “barred [p]laintiff from the
premises.” Id. at 6 J 24. Moreover, plaintiff contends that, “[o]n information and belief,”
NYSARC, Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Jamie Doe, Seaburg,
and “John Doe or Jane Doe as the Vice President of the NYSARC’” “does not treat
similarly situated non-disabled person [sic] in the manner in which [p]laintiff was
treated.” Id. at 7 J 25. Plaintiff argues that, “[a]s a result, [he] was forced to leave the

| premises, was rendered [sic] in the midst of winter.” Id. at J 26.
Plaintiff further alleges that NYSARC, Heillbronner, Flatt, Zyskowski, Arginteano,
Wilkinson, Jamie Doe, Seaburg, John Doe or Jane Doe as the Vice President of the
NYSARC, “suddenly entered the [lJobby area that [p]laintiff occupied” and that
NYSARC, Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla, Seaburg, and
John or Jane Doe as the Vice President of NYSARC, “using baton-like object [sic], and

the [djefendants’ [s]ecurity guard and also [sic] the [djefendants too threatened [plaintiff]
and without [p]laintiff's consent [sic] by using a number of derogatory and offensive
language [sic] . . . calling [him] ‘a dumb bastard,” and saying, “[y[ou are retarded,” and
“[ylour are a retarded motherfucker.” Amen. Compl. at 8 J 27, 9 J 28. Plaintiff also
asserts that NYSARC, Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla,
o Seaburg, and John or Jane doe as Vice President of NYSARC “threatened [him] in sum
and substance[] by stating[,] ‘I will kill [yjou and whole [sic] motherfuck [sic] family and
friends.” Id. at 9 J 29. Plaintiff also appears to allege that Harla told him that “we do not
let your disability kind [sic] in the [NYSARC premises] as a matter of fact.” Id. at 10 J 30
(italics omitted). Plaintiff alleges that, “[a]s a direct and proximate result of the
aforementioned conduct on the part of both [sic] [d]efendants, [p]laintiff suffered great
emotional distress, anxiety and depression, and in the alternative, [p]laintiff's [p]re-
existing distress, anxiety and depression were thereby greatly exacerbated.” Id. at 11]
31.
Plaintiff alleges that, “[djefendants NYSARC ... , through the action of?”
Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Jamie Doe, Seaburg, and John or
Jane Doe as the Vice President of NYSARC, “discriminated against [him] on the basis

| Of his disabilities.” Amen. Compl. at 12 {| 33. Further, plaintiff contends that, “[d]ue to
both [sic] [d]efendants [sic] disparate treatment of [p]laintiff as an individual with an
actual and/or perceived disability, and their refusal to reasonably accommodate him[,
djefendants have violated both the anti-discrimination and reasonable accommodation
provision of [the ADA and NYSHRL].” Id. at 35; see id. at 14 7 40. Plaintiff also state
that “[dJefendants’ conduct denied [him] equal access to their facilities because of his

disability” and, as a result, he “suffered inconvenience, embarrassment, and humiliation,
inter alia.” Id. at 13 7 37; 14 9] 41, 44. He posits that defendants’ “wrongful behavior
[sic] [his] rights under the [ADA] caused [him] psychological suffering.” Id. at 12 J 33.
Moreover, plaintiff alleges that “NYSARC ... and Heillbronner . . . are liable under
[rlespondeat [s]uperior [c]laims.” Id. at 15 {| 49.
o Plaintiff requests as relief (1) compensatory and punitive damages “under the
ADA ...and the... NYSHRL’; (2) declaratory judgement; (3) injunctive relief; and (4)
any further relief the “Court deems appropriate, including costs pursuant to 42 U.S.C. §
1988.” Amen. Compl. at 16 Jf 48-49, 17.

C. Analysis of the Amended Complaint?
i 1. Requested Relief
As an initial matter, insofar as plaintiff seeks monetary relief for alleged violations
of Title of the ADA, his claims must be dismissed with prejudice because “Title III[]
authorizes private actions only for injunctive relief, not monetary damages.” Krist v.
Kolombos Rest. Inc., 688 F.3d 89, 94 (2d Cir. 2012). In addition, to the extent plaintiff
seeks punitive damages pursuant to the NYSHRL, his claims must likewise be

| dismissed with prejudice because, except in cases of housing discrimination, “the
NYSHRL does not permit [recovery of] punitive damages.” Hauff v. State Univ. of New
York, 425 F. Supp. 3d 116, 138 (E.D.N.Y. 2019); see N.Y. Exec. LAw § 297(9) (“Any
person claiming to be aggrieved by an unlawful discriminatory practice shall have a
cause of action in any court of appropriate jurisdiction for damages, including, in case

4 All unpublished opinions cited in this Report-Recommendation and Order, unless otherwise noted, hav
been provided to plaintiff.

of housing discrimination only, punitive damages, and such other remedies as may
be appropriate ... .” (emphasis added)).

2. Intentional Disability Discrimination Claims under Title Ill of the ADA and
the NYSHRL Against NYSARC

“To state a claim under the ADA and the NYSHRL, a plaintiff must allege (1) that
[]he is a qualified individual with a disability; (2) that defendants are a public
accommodation as defined under Title Ill; and (3) that []he was denied the opportunity
to participate in or benefit from defendants’ services, programs or activities, or was
otherwise discriminated against by defendants on the basis of [his] disability.” Oakley v.
Dolan, No. 17-CV-6903 (RJS), 2020 WL 818920, at *15 (S.D.N.Y. Feb. 19, 2020)
(internal quotation marks and citation omitted); see also Rodal v. Anesthesia Grp. of
. Onondaga, P.C., 369 F.3d 113, 117 n.1 (2d Cir. 2004) (“New York State disability
discrimination claims are governed by the same legal standards as federal ADA
claims.”); Romanello v. Shiseido Cosmetics Am. Ltd., No. 00-CV-7201 (JGK), 2002 WL
31190169, at *7 (S.D.N.Y. Sept. 30, 2002) (“[T]he same standards used to evaluate
claims under the ADA also apply to cases involving the NY[S]JHRL.”).
Under the ADA, the term “disability” means “a physical or mental impairment that
substantially limits one or more major life activities of such individual.” 42 U.S.C. §
12102. A physical or mental impairment can be “[a]Jny mental or psychological disorder,
such as an intellectual disability [or an] emotional or mental illness[.]’ 29 C.F.R. §
1630.2(h)(2). “[M]ajor life activities include, but are not limited to, caring for oneself,
performing manual tasks, seeing, hearing, eating, sleeping, walking, standing, lifting,
bending speaking, learning, reading, concentrating, thinking, communicating, and

working.” 42 U.S.C. § 12102. “[P]ublic accommodations” are defined under 42 U.S.C.
§ 12181(7)(F), which includes a long list of qualifying private facilities, provided that thei
operations “affect commerce,” such as an “insurance office, professional office of a
health care provider, hospital, or other service establishment.”
Here, plaintiff alleges that he suffers from schizophrenia and mild mental
| retardation, which he posits impair his ability to work and care for himself. See Amen.
Compl. at 5-6 J 22. Further, he states that NYSARC is a non-profit entity that services,
among other things, pooled supplemental needs trusts and that he is a beneficiary of
such a trust that is serviced by NYSARC. See id. at 2 J] 3, 4] 20. Moreover, liberally
construing the amended complaint, plaintiff alleges that employees of NYSARC ejected
him from NYSARC’s place of business explicitly because of his disabilities, thereby
m| depriving him of NYSARC’s services. See id. at 5] 21. Accordingly, affording plaintiff's
pro se pleading a liberal construction, the undersigned concludes that plaintiff's
intentional discrimination claims against NYSARC pursuant to Title III of the ADA for
injunctive relief and the NYSHRL for injunctive relief and/or compensatory damages
survive initial review. However, the undersigned makes no finding as to whether these
claims would survive a properly supported dispositive motion.

tri
3. Disability Discrimination Claims under Title Ill of the ADA and the NYSHRL
Against the Individual Defendants
“[T]he question of whether a person is a proper defendant under the ADA turns
...on... Whether the defendant owns, leases, or operates a place of public
accommodation within the meaning of the ADA.” Coddington v. Adelphi Univ., 45 F.
Supp. 2d 211, 215 (E.D.N.Y. 1999) (emphasis removed). In assessing whether an

10

individual is a proper defendant under the ADA, “{cJourts . . . have focused on the issue
of control and whether the named defendant ‘operates’ a place of public
accommodation within the meaning of the ADA.” Id. at 216. “Under Title Ill, ‘to operate’
means ‘to put or keep in operation,’ ‘to control or direct the functioning of,’ or ‘to conduct
the affairs of; manage.” Green v. DGG Properties Co., Inc., No. 3:11-CV-01989 (VLB),
2013 WL 395484, at *13 (D. Conn. Jan. 31, 2013) (quoting Celeste v. East Meadow
Union Free School Dist., 373 F. App’x 85, 91 (2d Cir. 2010) (summary order) (additional
internal quotation marks and citation omitted). Further, “[t]he term ‘operate’ has been
interpreted as being in a position of authority and having the power and discretion to
perform potentially discriminatory acts.” Coddington, 45 F. Supp. 2d at 215. Moreover,
courts have explained that “[s]uch discriminatory acts may result in the imposition of
| liability under the ADA where they are the result of the exercise of the individual's own
discretion, and not merely the implementation of institutional policies or the mandates of
superiors.” Id.
However, courts have held that “naked assertions devoid of further factual
enhancement” concerning an individual defendant’s level of control over a public
accommodation are insufficient for purposes of establishing individual liability under

| Title Ill of the ADA or the NYSHRL. Iqbal, 556 U.S. at 678; see Green, 2013 WL
395484, at *14. For example, in Green, where “[p]laintiff merely assert[ed] the names o
the individual defendants and their respective titles,” without more, the court held that,
although the individual defendants could “be proper defendants in [the] action if they
exercised the requisite control over [the public accommodation], the plaintiff “failed to
allege any facts in his complaint that would allow the court to conclude that [the

11

individual defendants] exercised such control over the functioning of affairs of [the publi
accommodation].” Id. Similarly, in Bebry, the court held that the plaintiff failed to
sufficiently plead facts to establish individual liability under Title III of the ADA or the
NYSHRL where the plaintiff alleged only that the individual defendant was “the lessee
and/or operator of the [rlestaurant and the owner of the improvements where the
[rjestaurant [wa]s located” and that, although plaintiff established that the individual
defendant was “the [c]hairman or CEO of” the entity that ran the restaurant and the
tenant of the property where the restaurant was located, the complaint “provide[d] no
additional factual allegations.” Bebry v. ALJAC LLC, 954 F. Supp. 2d 173, 178, 179
(E.D.N.Y. 2013).
Here, even affording the amended complaint the most liberal construction
possible, plaintiff has not pleaded facts to establish the liability of any of the individual
defendants under the ADA or the NYSHRL. Similar to Bebry and Green, although
plaintiff states the names and titles of the individual defendants in making his claims, th
amended complaint does not advance any facts from which the undersigned is able to
infer that any of the individual defendants “were in such positions of authority, or had
such power and discretion” such that they can be said to “operate” NYSARC. Green,
| 2013 WL 395484, at *14; see Bebry, 954 F. Supp. 2d at 178, 179. In addition, despite
placing all or most of the individual defendants’ names before each of his allegations
concerning the purportedly discriminatory comments and threats, plaintiff does not
proffer any facts indicating which of these defendants made the alleged threats or
remarks complained of. See Amen. Compl. at 8 J 27, 9 Ff 28-29, 10 4] 30. Moreover,
although plaintiff appears to allege that a security guard at NYSARC was responsible

12

for at least some of the purportedly discriminatory conduct, the security guard is not
named as a defendant in this action. See id. at 8 27. Thus, in light of plaintiff's pro se
status, it is recommended that plaintiff's claims pursuant to Title Ill of the ADA and the
NYSHRL against the individual defendants be dismissed without prejudice and
opportunity to amend.
a

4. Failure to Provide Reasonable Accommodations under Title Ill of the ADA
and the NYSHRL Against NYSARC and the Individual Defendants
“Title[] . . . Ill of the ADA prohibit[s] discrimination against qualified disabled
individuals by requiring that they receive ‘reasonable accommodations’ that permit them
to have access to and take a meaningful part in public services and public
accommodations.” Powell v. Nat'l Bd. of Med. Examiners, 364 F.3d 79, 85 (2d Cir.),
. opinion corrected, 511 F.3d 238 (2d Cir. 2004) (citations omitted). To adequately plead
a claims pursuant to Title III of the ADA and the NYSHRL for failure to provide
reasonable accommodations, a plaintiff must allege facts establishing that the
defendant's “failure to make ‘reasonable modifications’ to their policies, practices, and
procedures deprived plaintiff of the ability to access the ‘goods, services, facilities,
privileges, advantages, or accommodations’ available to those lacking [the] plaintiff's
disabilities.” Andersen v. N. Shore Long Island Jewish Healthcare Sys. Zucker Hillside
Hosp., No. 12-CV-1049 (JFB/ETB), 2013 WL 784391, at *9 (E.D.N.Y. Jan. 23, 2013)
(quoting 42 U.S.C. 12182(b)(2)(A)(i)-(ii) (additional citation omitted), report and
recommendation adopted as modified, No. 12-CV-1049 (JFB/ETB), 2013 WL 784344
(E.D.N.Y. Mar. 1, 2013).

13

Here, plaintiff alleges that, “[rjather than engaged [sic] in a dialogue with [p]laintiff
to identify some mutually agreeable or otherwise reasonable accommodation to
[p]laintiff[,]” Heillbronner, Flatt, Zyskowski, Arginteano, Wilkinson, Harla, Seaburg, and
“John Doe or Jane Doe as the Vice President of the NYSARC “barred [p]laintiff from the
premises.” Id. at 6 J 24. He alleges that defendants took this action solely because of
| his schizophrenia and mild mental retardation. See id. at 5-6 J 22. Plaintiff's
allegations in this regard are wholly conclusory and the amended complaint is devoid of
factual allegations concerning NYSARC’s “policies, practices, [or] procedures.”
Andersen, 2013 WL 784391, at *9. Accordingly, it is recommended that plaintiff's
claims for disability discrimination based on failure to provide reasonable
accommodations be dismissed. In light of plaintiff's pro se status, it is recommended
| that these claims be dismissed without prejudice and leave to amend.

5. Disability Discrimination based on Disparate Treatment of Similarly Situated
Individuals under Title Ill of the ADA and the NYSHRL Against NYSARC and the
Individual Defendants
“A showing of disparate treatment—that is, a showing that the [defendant]
treated plaintiff less favorably than a similarly situated [person] outside his protected
| Jroup—is a recognized method of raising an inference of discrimination.” Mandell v.
Cty. of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). Here, insofar as plaintiffs amended
complaint may be construed as attempting to establish disability discrimination based
on disparate treatment by stating that defendants “do[] not treat similarly situated non-
disabled person [sic] in the manner in which [p]laintiff was treated,” Amen. Compl. at 7 J
25, plaintiff's claim in this regard is wholly conclusory in that he fails to proffer any facts

14

in support thereof. Consequently, it is recommended that plaintiffs claims for disability
discrimination based on disparate treatment be dismissed. In light of plaintiff's pro se
status, it is recommended that these claims be dismissed without prejudice and with
opportunity to amend.

° 6. State Law Claims
Liberally construing the amended complaint, plaintiff appears to allege New
York State law claims of intentional infliction of emotional distress (“IIED”), assault and
battery, and respondeat superior liability. See Amen. Compl. at 8 J 27, 9 J 28, 11 7 31,
15 I] 45-47. Plaintiffs New York State law claims for IIED and assault and battery are
barred by the one-year statute of limitations that governs those claims. See C.P.L.R.
m| 215(3) (“The following actions shall be commenced within one year: an action to recove
damages for assault [and] battery.”); see also Forbes v. Merrill Lynch, Fenner & Smith,
Inc., 957 F. Supp. 450, 455 (S.D.N.Y. 1997) (“It is well established under New York law
that a claim of intentional infliction of emotional distress has a one-year statute of
limitations.” (internal quotation marks and citations omitted). Thus, because plaintiff's
claims accrued on January 5, 2019—the date of the alleged incidents at NYSARC—and
| Plaintiff did not file this action until July 7, 2020, see Dkt. No. 1, the statute of limitations
for his state law tort claims has expired. See C.P.L.R. 215(3); Eorbes, 957 F. Supp. at
455. Consequently, as plaintiff's state law tort claims must be dismissed as time-
barred, “it necessarily follows that any cause of action against [NYSARC or
Heillbronner] based on the theory of respondeat superior and premised upon the
alleged [state law torts] must also be dismissed” as time-barred. Magriz v. St. Barnabas

15

Hosp., 43 A.D.3d 331, 333, 841 N.Y.S.2d 245, 246 (2007). Accordingly, it is
recommended that plaintiff's state law claims be dismissed with prejudice and without
opportunity to amend.

D. Request to be Proceed Under a Pseudonym
Also presently pending before the undersigned is plaintiff's request to be liste
as an anonymous plaintiff and to proceed using a pseudonym. See DKt. No. 9.
Plaintiff's asserted reasons for seeking to proceed anonymously are that (1) there “was
a threat to [his] life by [djefendants’ employment [sic], and during that person’s work
with the [djefendant”; and (2) certain documents he has submitted to the Court contain
personal information, such as his social security number. Id. at 1. Plaintiff argues that
m| he has “a right to. . . privacy by law in the event of identity theft.” Id.
Courts consider the following non-exhaustive list of factors in determining
whether to allow a plaintiff to remain anonymous and proceed under a pseudonym:
(1) whether the litigation involves matters that are highly
sensitive and of a personal nature; (2) whether identification
poses a risk of retaliatory physical or mental harm to the
party seeking to proceed anonymously or even more
critically, to innocent non-parties; (3) whether identification
presents other harms and the likely severity of those harms;
(4) whether the plaintiff is particularly vulnerable to the
possible harms of disclosure; (5) whether the suit is
challenging the actions of the government or that of private
parties; (6) whether the defendant is prejudiced by allowing
the plaintiff to press his claims anonymously, whether the
nature of that prejudice (if any) differs at any particular stage
of the litigation, and whether any prejudice can be mitigated
by the district court; (7) whether the plaintiff's identity has
thus far been kept confidential; (8) whether the public’s
interest in the litigation is furthered by requiring the plaintiff to
disclose his identity; (9) whether, because of the purely legal
nature of the issues presented or otherwise, there is an

16

atypically weak public interest in knowing the litigants’
identities; and (10) whether there are any alternative
mechanisms for protecting the confidentiality of the plaintiff.
Sealed Plaintiff v. Sealed Defendant, 537 F.3d 185, 189 (2d Cir. 2008) (internal
quotation marks, citations, brackets, and ellipses omitted).
In this case, plaintiff's request neither discusses these relevant factors nor
o provides any basis for extending the rare privilege of proceeding in the action using a
pseudonym. Although he has provided documents containing personal identifying
information, he has not identified any real or specific risk of harm, including theft of his
identity, if his request to proceed anonymously is denied. Indeed, it is rare that the
personal identifying information of parties in litigation is not contained in their filings in
this Court. Moreover, having considered plaintiff's amended complaint, the undersigned
concludes that plaintiff's privacy interests do not outweigh the public’s interest in full
disclosure of these judicial proceedings. Plaintiff has voluntarily opted to commence
this action and air his grievances in a quintessentially public forum. Therefore, in the
interest of facilitating public scrutiny of judicial proceedings, and in the interest of basic
fairness, the undersigned finds that plaintiff should be required to proceed in this action
using his true identity. See Doe v. Frank, 951 F.2d 320, 323 (11th Cir.1992) (“The
| Ultimate test for permitting a plaintiff to proceed anonymously is whether [he] has a
substantial privacy right which outweighs the customary and constitutionally-embedded
presumption of openness in judicial proceedings. It is the exceptional case in which a
plaintiff may proceed under a fictitious name.” (quotation marks, footnote, citation
omitted)); Doe v. Shakur, 164 F.R.D. 359, 361 (S.D.N.Y.1996) (“Fairness requires that
[the plaintiff] be prepared to stand behind her charges publicly.”).

17

E. Motion to Register and Consent for Electronic Service of Orders and Notices
Issued by the Court in Civil Cases
Plaintiff has also filed a form from the United States District Court for the
Eastern District of New York titled “Pro Se Registration and Consent for Electronic
Service of Orders and Notices Issued by the Court in Civil Cases.” Dkt. No. 8.

5 Although similar in some respects, the Eastern District’s form is significantly different
than the form used in this Court. Should plaintiff wish to obtain ECF access, he is
directed to properly complete and submit this Court's Pro Se Motion to Obtain ECF
Login.° Accordingly, it is recommended that plaintiff's motion to obtain ECF access is
denied with opportunity to submit of the appropriate form with this Court. Plaintiff is
advised that, if he chooses to file this Court's form and request to obtain ECF access,
that he must legibly provide all requested information.
I

lll. Conclusion
WHEREFORE, for the reasons set forth herein, it is hereby
ORDERED, that plaintiff's application to proceed IFP (Dkt. No. 2) is GRANTED, and it is
further
RECOMMENDED, that plaintiff's claims for monetary damages pursuant to
Title Ill of the ADA and claims for punitive damages pursuant to the NYSHRL be
DISMISSED WITH PREJUDICE AND WITHOUT LEAVE TO AMEND; and it is further

5 The Northern District pro se motion to obtain ECF login and password form can be found at the
following url:
https:/Awww.nynd.uscourts.gov/sites/nynd/files/forms/Pro_Se_Motion_Obtain_ECF_Login.pdf.
18

RECOMMENDED, that the following of plaintiff's claims be DISMISSED
WITHOUT PREJUDICE WITH LEAVE TO AMEND*: ADA Title II| and NYSHRL
intentional disability discrimination claims against the individual defendants; and ADA
Title Ill and NYSHRL claims based on failure to provide reasonable accommodations
and disparate treatment against all defendants; and it is further
o RECOMMENDED, that the following of plaintiff's claims proceed: ADA Title III
and NYSHRL claims for intentional discrimination against NYSARC but only insofar as
plaintiff seeks injunctive relief pursuant to Title III of the ADA and injunctive relief and/or
compensatory damages pursuant to the NYSHRL; and it is further
RECOMMENDED, that plaintiff's state law claims be DISMISSED WITH
PREJUDICE AND WITHOUT OPPORTUNITY TO AMEND as time-barred; and it is
| further
ORDERED, that plaintiff's motion to proceed as an anonymous plaintiff is
DENIED WITHOUT OPPORTUNITY TO RENEW, and it is further
ORDERED, that plaintiff's request to obtain ECF access is DENIED with
opportunity to file the appropriate form with the Court within thirty (80) days from the
date of this Report-Recommendation & Order; and it is further
RECOMMENDED, that should the District Judge adopt this Report-
Recommendation and Order, plaintiff be given thirty (30) days from the date of the
Order adopting this Report-Recommendation and Order to file an amended complaint,

Plaintiff is advised that an amended complaint is intended to completely replace the prior complaint in
the action, and thus it “renders [any prior complaint] of no legal effect.” International Controls Corp. v.
Vesco, 556 F.2d 665, 668 (2d Cir. 1977), cert. denied sub nom., Vesco & Co., Inc. v. International
Controls Corp., 434 U.S. 1014(1978); see also Shields v. Citytrust Bancorp, Inc., 25 F.3d 1124, 1128 (2d
Cir. 1994). Therefore, any amended complaint must include all of the allegations against each of the
defendants against whom the case is going forward so that the amended complaint may stand alone as
the sole complaint in this action.
19

and if plaintiff does not file an amended complaint, (1) it will be deemed as an
abandonment of any claims for which leave to replead has been granted and will result
in judgment being entered against plaintiff on these claims without further order by the
Court, and (2) the matter be returned to the Magistrate Judge for service of the original
complaint for any claims that were permitted to proceed in the original complaint, with al
| other claims deemed stricken.
IT IS SO ORDERED.
Pursuant to 28 U.S.C. § 636(b)(1), plaintiff has FOURTEEN (14) days within
which to file written objections to the foregoing report. Such objections shall be filed with
the Clerk of the Court. FAILURE TO OBJECT TO THIS REPORT WITHIN FOURTEEN
(14) DAYS WILL PRECLUDE APPELLATE REVIEW. Roldan v. Racette, 984 F.2d 85,
m| 89 (2d Cir. 1993) (citing Small v. Sec’y of Health and Human Servs., 892 F.2d 15 (2d
Cir. 1989)); see also 28 U.S.C. § 636(b)(1); FED. R. Civ. P. 72 & 6(a).’
Dated: September 28, 2020
Albany, New York

Christian F. Hummel
U.S. Magistrate Judge
rr!

7 If you are proceeding pro se and are served with this Report-Recommendation & Order by mail, three
(3) additional days will be added to the fourteen (14) day period, meaning that you have seventeen (17)
days from the date the Report-Recommendation & Order was mailed to you to serve and file objections.
FED.R. CIV. P. 6(d). If the last day of that prescribed period falls on a Saturday, Sunday, or legal
holiday, then the deadline is extended until the end of the next day that is not a Saturday, Sunday, or
legal holiday. Id. § 6(a)(1)(c).
20

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10313277. Public record. Not legal advice.