Phillips v. White Plains Hospital

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

PHILLIPS, TODD, and HENAO,

Plaintiffs,

No. 23-CV-11326 (KMK)

v.

OPINION AND ORDER

WHITE PLAINS HOSPITAL,

Defendant.

KENNETH M. KARAS, United States District Judge:

Appearances:

Tia Phillips

Pro Se Plaintiff

Cherry Todd

Pro Se Plaintiff

Stephanie Henao

Pro Se Plaintiff

Andrew L. Zwerling, Esq.

Dayna Brooke Tann, Esq.

Garfunkel Wild, P.C.

Great Neck, NY

Counsel for Defendant

KENNETH M. KARAS, United States District Judge:

Tia Phillips (“Phillips”), Cherry Todd (“Todd”), and Stephanie Henao (“Henao”)

(collectively, “Plaintiffs”) bring this Action against the White Plains Hospital (“Defendant”), for

discrimination under the Americans with Disabilities Act (“ADA”) and 42 U.S.C. § 1983, as

well as violations of New York State Human Rights Law (“NYSHRL”) §§ 290–297, 18 U.S.C.

§ 242, and N.Y. Penal Law § 135.60.

Before the Court is Defendant’s Motion to Dismiss the Complaint pursuant to Federal

Rule of Civil Procedure (“Rule”) 12(b)(6) (the “Motion”). (See Dkt. No. 36.)

For the reasons stated herein, the Motion is granted.

I. Background

A. Factual Background

Though Plaintiffs’ Complaint is relatively sparse, the Court will take all well-pleaded

factual allegations in the Complaint as true for the purposes of this Motion. See Buon v.

Spindler, 65 F.4th 64, 69 n.1 (2d Cir. 2023).

Plaintiffs were formerly employed by Defendant White Plains Hospital. (See Second

Amended Complaint (“SAC”) 5 (Dkt. No. 24.).)1 In 2021, Plaintiffs each applied for a medical

exemption to Defendant’s COVID-19 vaccination requirement. (See id.; id. Ex. 1 at 1 (Dkt. No.

24-1).) In support of this medical exemption, each Plaintiff provided nearly identical

documentation from a Dr. Amaru Xi-Ali. (See Decl. of Cynthia Ganung (“Ganung Decl.”) Exs.

1, 2, 3 (Dkt. Nos. 39-1, 39-2, 39-3).)2 These documents stated, inter alia, that “forced

1 Unless otherwise noted, the Court cites to the ECF-stamped page number in the upper-

right corner of each page in cites from the record.

2 Defendant argues that Plaintiffs’ applications for a medical exemption from the vaccine

requirement should be incorporated by reference. (See Ganug Decl. 2 (Dkt. No. 39).)

“‘Generally, a court may incorporate documents referenced where (1) [the] plaintiff relies on the

materials in framing the complaint, (2) the complaint clearly and substantially references the

documents, and (3) the document's authenticity or accuracy is undisputed.’” Garcia v. Dezba

Asset Recovery, Inc., 665 F. Supp. 3d 390, 396–97 (S.D.N.Y. 2023) (quoting Stewart v. Riviana

Foods Inc., No. 16-CV-6157, 2017 WL 4045952, at *6 (S.D.N.Y. Sept. 11, 2017); see also

Dunkelberger v. Dunkelberger, No. 14-CV-3877, 2015 WL 5730605, at *5 (S.D.N.Y. Sept. 30,

2015) (“To be incorporated by reference, the complaint must make a clear, definite, and

substantial reference to the documents, and to be integral to a complaint, the plaintiff must have

(1) actual notice of the extraneous information and (2) relied upon the documents in framing the

complaint.” (alterations omitted) (quoting Bill Diodato Photography LLC v. Avon Prods., Inc.,

No. 12-CV-847, 2012 WL 4335164, at *3 (S.D.N.Y. Sept. 21, 2012))).

vaccinations are an ACT OF GENOCIDE,” and that the Plaintiffs were “contraindicated” for the

COVID-19 vaccine because their “genetic bio-variance could cause massive allergic reaction to

mRNA complimentary modified dna in vaccine and induce massive receptor membrane changes

that impact the HLA/MHC formation of the client that adversely impacts client’s immunity

permanently and clients future offspring.” (See id. (emphasis in original).) Plaintiffs’ exemption

request was denied. (See SAC 5.)

B. Procedural Background

On December 28, 2023, Plaintiffs filed the instant Action. (See Compl. (Dkt. No. 1).)

On January 22, 2024, Plaintiffs filed an Amended Complaint. (See Amended Complaint (“AC”)

(Dkt. No. 7).) On June 2, 2024, Plaintiffs filed a Second Amended Complaint. (See Second

Amended Complaint (“SAC”) (Dkt. No. 24).) On August 28, 2024, Defendant filed a Motion to

Dismiss (“the Motion”). (See Mot. to Dismiss (“Def. Mot.”) (Dkt. No. 36); Decl. of Dayna Tann

(“Tann Decl.”) (Dkt. No. 38); Ganung Decl.; Mem. of Law in Supp. of Def. Mot. to Dismiss

(“Def. Mem.”) (Dkt. No. 40).)

Plaintiffs failed to respond to Defendant’s Motion. (See generally Dkt.) Plaintiffs’

opposition was due by September 30, 2024. (See Scheduling Order 3 (Dkt. No. 34).) The docket

indicates that a copy of the Court's Order setting the briefing schedule was mailed to Plaintiffs on

Here, Plaintiffs clearly relied on the exemption application in framing the Second

Amended Complaint and the exemption applications are clearly and substantially referenced in

the Second Amended Complaint. (See SAC 5 (relying on Plaintiffs’ exemption request as the

basis for their discrimination claims).) Plaintiffs did not object to the incorporation of the

exemption applications in the Second Amended Complaint, as they did not respond to the

Defendant’s Motion to Dismiss. As such, the Court will consider the exemption applications in

ruling on matters subject to Defendant’s Motion to Dismiss. See Garcia, 665 F. Supp. 3d at 397;

see also Jacob v. Lorenz, No. 21-CV-6807, 2022 WL 4096701, at *5 (S.D.N.Y. Sept. 7, 2022)

(holding exhibit was incorporated by reference when the complaint made “clear, definite, and

substantial reference” to its contents).

August 1, 2024. (See generally Dkt.). Further, the docket indicates that Plaintiffs were sent

Defendant’s moving papers on August 28, 2024. (See Dkt. No. 41.) Plaintiffs were thus on

notice that a Motion to Dismiss was filed, and have not responded as of the time of this Opinion.

Accordingly, the Court deems the Motion fully submitted and will decide it on the merits. See

Mayo v. Reid, No. 23-CV-9719, 2024 WL 5158212, at *2 (S.D.N.Y. Dec. 18, 2024) (deeming

motion fully submitted after Plaintiff had received ample notice of its submission); Peachey v.

Zayaz, No. 23-CV-6409, 2024 WL 4932527, at *1 (S.D.N.Y. Dec. 2, 2024) (same).

II. Discussion

A. Standard of Review

Federal Rule of Civil Procedure 12(b)(6) allows a defendant to seek dismissal of a

plaintiff’s claim based on “failure to state a claim upon which relief can be granted.” Fed. R.

Civ. P. 12(b)(6). At the motion to dismiss stage, a court must “draw all reasonable inferences in

the [plaintiff’s] favor, ‘assume all well-pleaded factual allegations to be true, and determine

whether they plausibly give rise to an entitlement to relief.’” United States v. Medtronic, Inc.,

No. 18-CV-1628, 2024 WL 4165522, at *3 (S.D.N.Y. Sept. 12, 2024) (quoting Faber v. Metro.

Life Ins. Co., 648 F.3d 98, 104 (2d Cir. 2011)).

To survive a motion to dismiss, the Supreme Court has held that a complaint “does not

need detailed factual allegations.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)

(alteration adopted) (internal quotation marks and citation omitted). However, “a [plaintiff’s]

obligation to provide the grounds of his entitlement to relief requires more than labels and

conclusions, and a formulaic recitation of the elements of a cause of action will not do.” Id.

Rule 8 of the Federal Rules of Civil Procedure “demands more than an unadorned, the-

defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

“Nor does a complaint suffice if it tenders naked assertions devoid of further factual

enhancement.” Id. (alteration adopted) (internal quotation marks and citation omitted). Rather, a

complaint's “[f]actual allegations must be enough to raise a right to relief above the speculative

level.” Twombly, 550 U.S. at 555.

“[O]nce a claim has been stated adequately, it may be supported by showing any set of

facts consistent with the allegations in the complaint,” id. at 563, and a plaintff must allege “only

enough facts to state a claim to relief that is plausible on its face,” id. at 570. Certainly, if a

plaintiff has not “nudged [his] claim[ ] across the line from conceivable to plausible, the[ ]

complaint must be dismissed.” Id.; see also Iqbal, 556 U.S. at 679 (“Determining whether a

complaint states a plausible claim for relief will ... be a context-specific task that requires the

reviewing court to draw on its judicial experience and common sense. But where the well-

pleaded facts do not permit the court to infer more than the mere possibility of misconduct, the

complaint has alleged—but it has not ‘shown’—‘that the pleader is entitled to relief.’” (alteration

adopted) (internal quotation marks and citation omitted) (quoting Fed. R. Civ. P. 8(a)(2))).

Where, as here, a complaint was filed pro se, it must be construed liberally with “special

solicitude” and interpreted to raise the strongest claims that it suggests. Kamdem-Ouaffo v.

Pepsico, Inc., 160 F. Supp. 3d 553, 561 (S.D.N.Y.) (quoting Hill v. Curcione, 657 F.3d 116, 122

(2d Cir.2011)), aff'd, 657 F. App'x 949 (Fed. Cir. 2016).

B. Analysis

1. ADA

a. Exhaustion of Remedies

Defendant argues that Plaintiffs’ ADA claims are time-barred, because Plaintiffs failed to

exhaust administrative remedies. (See Def. Mem. 12-13.) “To assert a claim under . . . the ADA

. . . in federal court, a plaintiff is required to exhaust the administrative remedies provided by the

statute.” Wood v. ViacomCBS/Paramount, No. 22-CV-6323, 2024 WL 4451742, at *3

(S.D.N.Y. July 15, 2024) (internal citations and quotation marks omitted), report and

recommendation adopted, No. 22-CV-6323, 2024 WL 4263117 (S.D.N.Y. Sept. 23, 2024); see

also 42 U.S.C. § 12117 (citing 42 U.S.C § 2000e-5); Duplan v. City of New York, 888 F.3d 612,

621–22 (2d Cir. 2018); Fowlkes v. Ironworkers Loc. 40, 790 F.3d 378, 384 (2d Cir. 2015)

(“Exhaustion of administrative remedies through the EEOC is an essential element of the [ADA]

statutory scheme; accordingly, it is a precondition to bringing such claims in federal court.”

(internal quotations, citations, and alterations omitted)). The administrative exhaustion

requirement applies to pro se and counseled plaintiffs alike. Id. Although Plaintiffs were not

required to plead exhaustion, see Hardaway v. Hartford Pub. Works Dep’t, 879 F.3d 486, 491

(2d Cir. 2018), the Court may “may dismiss a complaint if it is evident from the face of the

complaint that a plaintiff did not exhaust administrative remedies,” Delaney v. HC2, Inc., No.

24-CV-6287, 2025 WL 27484, at *19 n.27 (S.D.N.Y. Jan. 3, 2025).

Here, Plaintiffs’ alleged injuries occurred in 2021. (See SAC 5.) In their the SAC,

Plaintiffs allege that they filed a charge with the EEOC regarding Defendant’s discriminatory

conduct on March 4, 2024. (See id.) Thus, it is clear from the face of the SAC that Plaintiffs’

ADA claims are time-barred because they failed to exhaust their remedies within the 300-day

window required under the statute. Carillo v. Wildlife Conservation Soc’y, No. 23-CV-7387,

2024 WL 4225555, at *2–3 (E.D.N.Y. Sept. 18, 2024) (dismissing the plaintiff’s ADA and Title

VII claims where it was clear from the face of the complaint that she had failed to exhaust); Kirk

v. Mount Vernon City Sch. Dist., No. 23-CV-7441, 2024 WL 3794591, at *5 (S.D.N.Y. Aug. 13,

2024) (dismissing the plaintiff’s ADA discrimination and retaliation claims where it was evident

from the face of the complaint that his claims were time-barred).

b. Disability under the ADA

Even if Plaintiffs’ claims were not barred by their failure to exhaust, Plaintiffs’ claims

would nevertheless fail, because they have failed to adequately allege that they suffer from a

disability or perceived disability within the meaning of the statute.

To state a claim under the ADA, Plaintiffs must first show that they suffer from a

disability within the meaning of the ADA. Capobianco v. City of New York, 422 F.3d 47, 56 (2d

Cir. 2005); Johnson v. Mount Sinai Hosp. Grp., Inc., No. 23-466, 2024 WL 3289475, at *1 (2d

Cir. July 3, 2024) (summary order). “Under the ADA, a ‘disability’ is: ‘(A) a physical or mental

impairment that substantially limits one or more major life activities of an individual; (B) a

record of such an impairment; or (C) being regarded as having such an impairment.’” Abramov

v. Northwell Health Sys., No. 22-CV-6687, 2024 WL 4276171, at *9 (E.D.N.Y. Sept. 24, 2024)

(alterations adopted) (citing 42 U.S.C. § 12102(1)), appeal pending, No. 24-2664 (2d Cir.

October 7, 2024).

Further, to state a claim under the ADA, “[the] [p]laintiff’s allegations must contain

sufficient factual support for his or her purported limitations, such as describing in some detail

the frequency, duration, or severity of his or her limitations.” Perez v. New York

Presbyterian/Weill Cornell Med. Ctr., No. 23-CV-6152, 2024 WL 1514216, at *5 (S.D.N.Y.

Apr. 8, 2024). A plaintiff’s allegations regarding a disability may not be merely speculative. See

id., 2024 WL 1514216, at *6 (collecting cases); see also Innes v. Cnty. of Warren, No. 22-CV-

641, 2024 WL 865864, at *9 (N.D.N.Y. Feb. 29, 2024) (noting in alleging a disability, a plaintiff

may not rely on speculation).

Here, Plaintiffs’ do not sufficiently allege that they suffer from a disability within the

meaning of the ADA. Indeed, Plaintiffs’ Complaint does not describe the alleged disability in

any detail at all, simply stating that they are “contraindicate[ed]” for the COVID-19 vaccine.

(See SAC 5.) The doctors’ notes submitted by Plaintiffs to their employer state that Plaintiffs’

“genetic bio-variance could cause [a] massive allergic reaction” to the vaccine, and that allergic

reaction in turn could “adversely impact the [Plaintiffs’] immunity permanently and [Plaintiffs’]

future offspring.” (See Ganung Decl. Exs. 1–3.) This description is insufficiently specific to

permit the Court to determine either the nature, “frequency, duration, or severity” of the

disability claimed by Plaintiffs. See Mercer v. ViacomCBS/Paramount, No. 22-CV-6322, 2024

WL 3553133, at *4 (S.D.N.Y. July 26, 2024) (determining an identical doctor’s note from Dr.

Xi-Ali to be insufficient because, inter alia, it “does not state that [the plaintiff] actually has an

allergy to the COVID-19 vaccine or that the vaccine would cause her to have an allergic

reaction, merely that it could.”); Perez, 2024 WL 1514216, at *5 (holding that the plaintiff did

not sufficiently allege a “disability” within the meaning of the ADA where she failed to allege

frequency, severity, or duration of her allergic reaction to the COVID-19 vaccine); see also

Abramov, 2024 WL 4276171, at *9 (same regarding an alleged neurological condition). In fact,

courts in the Second Circuit have found substantially similar claimed disabilities insufficient to

withstand a motion to dismiss. See Mercer, 2024 WL 3553133, at *5 (finding precisely the same

claimed disability “insufficient to plead that Plaintiff has a disability as defined by the ADA”);

Perez, 2024 WL 1514216, at *6 (finding the plaintiff’s claimed allergy to the COVID-19 vaccine

“conclusory and insufficient to support her ADA disability claim”).

Plaintiffs also appear to allege that they suffered an ADA violation because Defendant

perceived them to have a disability. (See SAC 5.) To adequately allege that one is perceived as

having a disability, a plaintiff is required to show that one was “subjected to an action prohibited

under [the ADA] because of an actual or perceived physical or mental impairment whether or not

the impairment limits or is perceived to limit a major life activity.” Lake v. HealthAlliance

Hosp. Broadway Campus, 738 F. Supp. 3d 208, 217 (N.D.N.Y. 2024) (citing Innes, 2024 WL

865864, at *9); see also Murray v. Brag Sales Inc., No. 23-CV-6610, 2024 WL 3952649, at *3

(S.D.N.Y. Aug. 27, 2024) (same).

Here, Plaintiffs have not plausibly alleged that Defendant “regarded them” as having a

disability. (See generally SAC.) Instead, Plaintiffs only allege that Defendant failed to grant

them an exemption from the vaccine requirement. (See id. at 5.) Without more, Plaintiffs have

not adequately alleged that this action was motivated by the employer’s perception of their

disability. See Norman v. NYU Langone Health Sys., 492 F. Supp. 3d 154, 166 (S.D.N.Y. 2020)

(finding that there was no evidence that the defendant believed the plaintiff had “a medical

condition which would qualify her for a medical exemption” from its vaccination requirement),

aff’d, No. 20-3624, 2021 WL 5986999 (2d Cir. Dec. 17, 2021); Bota v. Hunter Coll. City Univ.

of New York, No. 21-CV-8977, 2022 WL 179627, at *4 (S.D.N.Y. Jan. 19, 2022) (granting a

motion to dismiss where the plaintiff “[did] not allege facts suggesting that [the] [d]efendant[]

discriminated or retaliated against him because of that disability”); Lewis v. Redline Hockey,

LLC, No. 24-CV-68, 2024 WL 1652491, at *3 (N.D.N.Y. Apr. 17, 2024) (same), appeal

pending, No. 24-1342 (2d. Cir May 17, 2024); Laface v. E. Suffolk Boces, 349 F. Supp. 3d 126,

147 (E.D.N.Y. 2018) (same).

To the extent that Plaintiffs intend to allege they were “regarded as” having a disability

simply because they failed to be vaccinated, their claim has been squarely rejected by the Second

Circuit. In Sharikov v. Philips Medical Systems MR, Inc., 103 F.4th 159 (2d Cir. 2024), the

plaintiff alleged that the defendant viewed him as disabled because he had refused to take the

COVID-19 vaccine. See id. at 165 (noting that “[the plaintiff] alleged that [the defendant]

unlawfully sought to impose the policy’s provisions upon him based upon the pure speculation,

stereotype and generalization that he was infected or may in the future become infected with a

deadly, contagious disease” (internal quotations omitted) (alterations adopted)). The Second

Circuit found that on those facts, the plaintiff was not “regarded as” disabled within the meaning

of the ADA because “all employees” were required to be vaccinated, and thus the plaintiff “was

not singled out because of any perception that he had an impairment that substantially limited

him as compared to others.” Id. at 168. Similarly, here, Plaintiffs may not allege that they are

“regarded as” being disabled simply because they refused to be vaccinated. See id.; see also

Johnson v. Mount Sinai Hosp. Grp., Inc., No. 23-CV-466, 2024 WL 3289475, at *1 (2d Cir. July

3, 2024) (summary order) (finding the plaintiff failed to state a claim under the ADA’s “regarded

as” prong where they simply alleged they were required to comply with a company-wide

vaccination policy); Librandi v. Alexion Pharma., Inc., No. 23-962, 2024 WL 3872727, at *1 (2d

Cir. Aug. 19, 2024) (same) (summary order); Newell v. State Univ. of New York Westchester

Cmty. Coll., No. 22-CV-08524, 2023 WL 4082030, at *3 (S.D.N.Y. June 20, 2023) (finding

plaintiff had not plausibly alleged she was “regarded as” disabled simply because she had chosen

not to vaccinate and collecting cases from the Second Circuit).

For the foregoing reasons, Plaintiffs’ claims under the ADA fail.

2. Section 1983

To state a claim under 42 U.S.C. § 1983, Plaintiffs must allege that Defendant is a state

actor or that Defendant’s actions are sufficiently entwined with the state to suggest state action.

Sykes v. Bank of Am., 723 F.3d 399, 406 (2d Cir. 2013) (“A private actor may be liable under

§ 1983 only if there is a sufficiently close nexus between the State and the challenged action that

seemingly private behavior may be fairly treated as that of the State itself.” (internal quotations

omitted)); Mumin v. New York, --- F. Supp. 3d ----, 2024 WL 5146085, at *23 (S.D.N.Y. Dec.

17, 2024) (“Private parties are generally not liable under Section 1983.”); Pedrow v. Greenburgh

Police Dep’t, No. 24-CV-4010, 2024 WL 4494292, at *1 (S.D.N.Y. Oct. 15, 2024) (same); RDK

NY Inc. v. City of New York, No. 21-CV-01529, 2024 WL 4333704, at *11 (E.D.N.Y. Sept. 28,

2024) (“State action may be found if, though only if, there is such a close nexus between the

State and the challenged action that seemingly private behavior may fairly be treated as that of

the State itself.” (alteration adopted) (quoting Brentwood Acad. v. Tennessee Secondary Sch.

Athletic Ass’n., 531 U.S. 288, 295 (2002))).

Here, Plaintiffs have failed to allege that Defendant is a state actor or that there is a

sufficiently close nexus between Defendant and the state to establish state action. The Court

takes judicial notice that Defendant is a not-for-profit hospital, not a public hospital. See Who

We Are, WHITE PLAINS HOSP., (https://www.wphospital.org/about-us/who-we-are/

[https://perma.cc/CT8Y-CXKN]) (last accessed Jan. 24, 2025); McCray v. New York, No. 15-

CV-409, 2023 WL 7002555, at *3 (W.D.N.Y. Oct. 24, 2023), report and recommendation

adopted, No. 15-CV-409, 2023 WL 9002815 (W.D.N.Y. Dec. 28, 2023) (taking judicial notice of

information on hospital’s website to determine whether hospital was a state actor). A not-for-

profit hospital is not a state actor unless its actions are “‘fairly attributable to the state’ or if the

non-state actor was a ‘willful participant in joint activity with the state or its agents.’” Arbeeny

v. Cuomo, No. 22-CV-2336, 2025 WL 71729, at *3 (E.D.N.Y. Jan. 10, 2025); see also Roberts v.

New York Presbyterian Hosp., Queens, No. 24-CV-1352, 2024 WL 1413030, at *2 (E.D.N.Y.

Apr. 2, 2024) (rejecting § 1983 claim because the defendant was a not-for-profit private

hospital), appeal dismissed (2d. Cir Sept. 11, 2024); McCray v. New York, No. 15-CV-409, 2023

WL 7002555, at *3 (W.D.N.Y. Oct. 24, 2023) (same), report and recommendation adopted, No.

15-CV-409, 2023 WL 9002815 (W.D.N.Y. Dec. 28, 2023). Because Plaintiffs provide no

information suggesting that White Plains Hospital’s actions are fairly attributable to the state or

constitute willful joint activity with the state, they have failed to allege state action. Therefore,

Plaintiffs’ § 1983 claims must fail.

3. State Law Claims

Plaintiffs also allege that Defendant violated NYSHRL §§ 270–279. (See AC 3.) The

NYSHRL, like the New York City Human Rights Law (NYCHRL), is “more generous than

federal law.” Mercer, 2024 WL 3553133, at *5. A claim under the NYSHRL requires a

showing that the plaintiffs have, are regarded as having, or have a record of having a “physical,

mental or medical impairment resulting from anatomical, physiological, genetic or neurological

conditions which prevents the exercise of a normal bodily function or is demonstrable by

medically accepted clinical or laboratory diagnostic techniques.” N.Y. Exec. Law § 292(21).

The NYSHRL provides broader disability protections than the ADA in that it does not “require[]

any showing that the disability substantially limits a major life activity.” Statuto v. NIKE, Inc.,

No. 23-CV-1788, 2024 WL 1380810, at *3 (S.D.N.Y. Mar. 29, 2024); see also Mercer, 2024

WL 3553133, at *5 (S.D.N.Y. July 26, 2024) (same).

Despite the NYSHRL’s more lenient standard for the establishment of a disability,

Plaintiffs are required to allege more than that they suffer from an unspecified “genetic bio-

variance” which their medical provider speculates “could cause [a] massive allergic reaction.”

See Mercer, 2024 WL 3553133, at *5 (emphasis added) (concluding that the plaintiffs’ claimed

allergic reaction to the COVID-19 vaccine was insufficient to make out a plausible claim of a

disability under the NYSHRL); Facci-Brahler v. Montgomery Cnty., No. 18-CV-941, 2020 WL

360873, at *5 (N.D.N.Y. Jan. 22, 2020) (concluding that the plaintiff’s “conclusory” description

of her disability insufficient to survive the Iqbal standard). For this reason, the Court finds

concludes that Plaintiffs’ state law civil rights claim fails.

4. Criminal Law Claims

Finally, Defendant alleges that Plaintiffs’ criminal law claims—under 18 U.S.C. § 242

and N.Y. Penal Law §135.6—must be dismissed because private plaintiffs cannot initiate

criminal proceedings. (See Def. Mem. 21–22.) The Court agrees. See Mercer, 2024 WL

3553133, at *8 (rejecting the plaintiff’s claim pursuant to 18 U.S.C. § 242 because “federal

criminal statutes do not provide private causes of action” (quoting Sheehy v. Brown, 335 F.

App'x 102, 104 (2d Cir. 2009) (summary order)); Marvin v. Allen, No. 23-CV-5947, 2024 WL

4290722, at *6 (S.D.N.Y. Sept. 24, 2024) (collecting cases holding that state criminal law does

not create a private right of action.). Thus, Plaintiffs’ criminal law claims fail.

III. Conclusion

For the reasons set forth above, the Court grants Defendant’s Motion to Dismiss in full.

If Plaintiffs wish to file a third amended complaint alleging additional facts and otherwise

addressing the deficiencies identified above, Plaintiffs must do so within 30 days of the date of

this Opinion & Order. Plaintiffs are further advised that the third amended complaint will

completely replace, not supplement, the Second Amended Complaint. The third amended

complaint must therefore contain all of the claims, defendants, and factual allegations that

Plaintiffs wish the Court to consider.

The Clerk of Court is respectfully directed to terminate the pending motion (Dkt. No. 36),

and mail a copy of this Opinion to Plaintiffs.

SO ORDERED.

Dated: February 10, 2025

W hite Plains, New York

KENNETH M. KARAS

United States District Judge