Baerga v. City of New York

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK

STEVEN GREENE; GIOVANNA SANCHEZ-

ESQUIVEL; SARAH ARVIO; LISA

COLLINS; ORITSEWEYIMI OMOANUKHE

AYU; and NEIL AMITABH,

individually and on behalf of

all others similarly situated,

and COMMUNITY ACCESS, INC.;

NATIONAL ALLIANCE ON MENTAL

ILLNESS OF NEW YORK CITY, INC.;

CORRECT CRISIS INTERVENTION

TODAY – NYC; and VOICES OF

COMMUNITY ACTIVISTS AND LEADERS

NEW YORK,

Plaintiffs,

- against –

No. 21 Civ. 05762 (LAP)

OPINION & ORDER

CITY OF NEW YORK; ERIC ADAMS;

BILL DE BLASIO; EDWARD A. CABAN;

KEECHANT L. SEWELL; DERMOT F.

SHEA; NYPD POLICE OFFICER MARTIN

HABER; NYPD POLICE SERGEANT

CARRKU GBAIN, NYPD POLICE

OFFICER VIKRAM PRASAD; NYPD

POLICE OFFICER ANDRE DAWKINS;

NYPD POLICE OFFICER TYRONE

FISHER; NYPD POLICE OFFICER

DEVIENDRA RAMAYYA; NYPD POLICE

OFFICER JULIAN TORRES; NYPD

OFFICER APRIL SANCHEZ; NYPD

POLICE OFFICER GABRIELE MORRONE;

NYPD OFFICER JOHN FERRARA; NYPD

POLICE OFFICER MARYCATHERINE

NASHLENAS; and NYPD OFFICERS

JOHN and JANE DOES # 1-40,

Defendants.

LORETTA A. PRESKA, Senior United States District Judge:

Plaintiffs1 bring this putative class action against

defendants New York City (“the City”) and numerous City employees2

(collectively, “Defendants”) pursuant to the Americans with

Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq., Section

504 of the Rehabilitation Act, 29 U.S.C. § 794, Section 1983 of

the Civil Rights Act of 1871 (“Section 1983”), 42 U.S.C. § 1983,

the Fourth and Fourteenth Amendments to the United States

Constitution, the New York State Constitution, and the New York

City Human Rights Law (“NYCHRL”), N.Y.C. Admin. Code § 8-101 et

seq. (See Third Am. Compl. (“TAC”) ¶ 14, dated June 10, 2024 [dkt.

no. 212].)

1 Plaintiffs comprise of two different groups: (1) Individual

Plaintiffs-Steven Greene, Giovanna Sanchez-Esquivel, Sarah Arvio,

Lisa Collins, Oritseweyimi Omoanukhe Ayu, and Neil Amitabh

(collectively, “Individual Plaintiffs”)—are individuals who have

been involuntarily hospitalized by the New York City Police

Department (“NYPD”); and (2) Organizational Plaintiffs—Community

Access, Inc., National Alliance on Mental Illness of New York City,

Inc. (“NAMI-NYC”), Correct Crisis Intervention Today-NYC (“CCIT-

NYC”), and Voices of Community Activists and Leaders New York

(“VOCAL-NY”) (collectively, “Organizational Plaintiffs”)—are non-

profit organizations focused on mental health advocacy within New

York City.

2 Individual Defendants are Mayor Eric Adams, former Mayor Bill de

Blasio, NYPD Police Commissioner Edward A. Caban, former NYPD

Commissioners Keechant L. Sewell and Dermot F. Shea, NYPD Police

Officers Martin Haber, Carrku Gbain, Vikram Prasad, Andre Dawkins,

Tyrone Fisher, Deviendra Ramayya, Julian Torres, April Sanchez,

Gabriele Morrone, John Ferrara, MaryCatherine Nashlenas and John

and Jane Does #1-40.

Plaintiffs allege that the City’s emergency response program

discriminates against people who experience mental health

emergencies. (TAC ¶¶ 1-4.) Plaintiffs additionally allege that

Defendants use “unlawful entries, detentions, and excessive force”

when responding to mental health emergencies. (Id. ¶ 1.)

Plaintiffs seek, inter alia, a permanent injunction (1)

“prohibiting Defendants from continuing their discriminatory and

unlawful policies, practices, and activities related to the City’s

emergency response program,” and (2) “requiring the City to operate

an emergency response program that provides a health response to

mental health emergencies that affords Plaintiffs access to the

City’s emergency response program and is comparable to the health

response the City provides to physical health emergencies,” as

well as damages. (Id. ¶ 15.)

Before the Court is Defendants’ partial motion to dismiss

Plaintiffs’ Third Amended Complaint (“TAC”) pursuant to Rule

12(b)(6) of the Federal Rules of Civil Procedure and Defendants’

motion to strike the class action certification pursuant to Rule

12(f) of the Federal Rules of Civil Procedure.3 Plaintiffs oppose

3 (See Def. Mot. to Dismiss & Strike, dated Aug. 19, 2024 [dkt.

no. 228]; Def. Mem. of Law in Supp. of Mot. to Dismiss and Strike

(“Def. Mem.”), dated Aug. 19, 2024 [dkt. no. 229]; Def. Reply,

dated Nov. 18, 2024 [dkt. no. 245]; Def. Sur-Sur-Reply, dated Dec.

12, 2024 [dkt. no. 251].)

the motions.4 The United States Department of Justice (“DOJ”)

filed a Statement of Interest.5 For the reasons set forth below,

Defendants’ motion to dismiss is GRANTED in part and DENIED in

part. Defendants’ motion to strike is DENIED.

I. Background

The following facts are from Plaintiffs’ TAC and are taken as

true for purposes of resolving the instant motions. See Faber v.

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

A. The City’s Emergency Response Program

The City operates an emergency response program, also known

as the 911 program, that allows people to call 911 when faced with

any emergency. (TAC ¶ 67.) The essential purpose of the City’s

emergency response program is to provide “timely, safe[,] and

effective emergency response services.” (Id. ¶ 444.)

Each 911 call is answered by one of the New York Police

Department’s (“NYPD”) police communication technicians/police call

takers and routed according to the type of emergency. (Id. ¶ 71.)

Emergencies typically involve a crime, fire, physical health, or

mental health. (Id.) The most common mental health emergencies

arise from depression, anxiety, and PTSD. (Id. ¶ 78.) Typical

4 (See Pl. Mem. in Opp’n to Mot. to Dismiss and Strike (“Pl. Opp’n

Mem.”), dated Sept. 30, 2024 [dkt. no. 235]; Decl. of Justin

Ormand in Supp. of Pl. Opp’n (“Ormand Decl.”), dated Sept. 30, 2024

[dkt. no. 236]; Pl. Sur-Reply, dated Dec. 5, 2024 [dkt. no. 250];

Pl. Letter, dated Jan. 8, 2025 [dkt. no. 252].)

5 (DOJ Statement of Interest, dated Oct. 2, 2024 [dkt. no. 238].)

mental health emergencies involve no allegations of criminal

conduct, violence, use or position of a weapon, or threat of harm

to others. (Id.)

The City’s deployed response is detailed on its website as

follows: □

START END

Call Processing Dispatch Travel

Notably, the website does not detail how a call is tagged as a

mental health call or emotionally disturbed person (“EDP”) call or

how those calls are routed and subseguently responded to.

6 https://www.nyc.gov/site/9llreporting/reports/reports.page

(“Bach 911 call is answered by a Police call-taker. If the

caller is reporting a crime, the Police call-taker will share

the details of the call with the Police dispatcher, who

mobilizes the unit. The unit travels to the site specified on

the call. When the unit arrives, the process is complete. If

the caller is reporting a fire, the Police call-taker adds a

Fire department call-taker to the call. At the same time, a

Fire department dispatcher mobilizes the unit who travels to the

site. When the unit arrives, the process is complete. If the

caller is reporting a medical emergency, the Police call-taker

adds an EMS call-taker to the call. The EMS call-taker conducts

medical questioning and then shares the details with an EMS

dispatcher that mobilizes the unit that will travel to the site.

When the unit arrives, the process is complete.”).

Plaintiffs allege that the City’s deployed response to

physical health emergencies differs from the deployed response to

mental health emergencies. (Compare ¶¶ 72-76 with ¶¶ 77-82.) For

physical health emergencies, the police call-taker adds an

emergency medical service (“EMS”) call-taker to the call, who

shares the details with an EMS dispatcher. (Id. ¶ 72.) The EMS

dispatcher mobilizes the emergency medical technicians (“EMTs”)

and paramedics to travel to the site as the first or lead

responders.7 (Id. ¶¶ 72-74.) These individuals are qualified

health professionals who are specifically trained to assess a

health emergency and provide on-the-spot stabilization and

treatment. (Id. ¶¶ 74, 76.) In contrast, for mental health

emergencies, police call-takers categorize the call as an EPD, and

police officers are dispatched as the first or lead responders.8

(Id. ¶ 80.) Police officers are not qualified to make health

determinations, de-escalate a mental health crisis, stabilize the

person in crisis, or determine whether transport to a hospital for

psychiatric evaluation is warranted.9 (Id. ¶ 81.)

7 “Although police officers may also respond, . . . their role is

one of law enforcement.” (TAC ¶ 73.)

8 “Although EMS may also respond, their role is secondary to the

police [officers’].” (Id. ¶ 82.) Additionally, they “are not

there to de-escalate or otherwise address mental health

emergencies. In many cases, they further exacerbate the harms

and injuries of individuals experiencing mental health

emergencies.” (Id.)

9 The Court notes that Section 9.41 of the New York State Mental

Hygiene Law does equip police officers with the ability (cont’d)

B. On-Site Police Response to Mental Health Emergencies

The following law and policies apply once police officers are

on-site at mental health emergencies.

Section 9.41 of the New York State Mental Hygiene Law (“MHL

§ 9.41”) states that a police officer “may take into custody any

person who appears to be mentally ill and is conducting himself or

herself in a manner which is likely to result in serious harm to

the person or others.” N.Y. Mental Hyg. Law § 9.41(a). The police

officer

may direct the removal of such person or remove him or her to

any hospital . . . or any comprehensive psychiatric emergency

program . . . or pending his or her examination or admission

to any such hospital or program, temporarily detain any such

person in another safe and comfortable place . . . .

Id. Notably, MHL § 9.41 does not state that the police are required

to respond to any or all mental health emergency calls. The law

only governs the police’s conduct once they are present.

There are two accompanying policies that provide the NYPD

with guidance on MHL § 9.41: (1) the NYPD’s Patrol Guide § 221-13

for “Mentally Ill or Emotionally Disturbed Persons” (“the Patrol

Guide”) and (2) the City’s Involuntary Removal Policy,

(collectively, the “Policies”). (TAC ¶¶ 7, 127-148.)

On September 10, 2020, the Patrol Guide was issued and became

effective. (Dkt. no. 212-1 at 2.) The purpose of the Patrol Guide

(cont’d) to determine whether “transport to a hospital for

psychiatric evaluation is warranted.” (See infra Section I.B.)

is “to safeguard a mentally ill or emotionally disturbed person

who does not voluntarily seek medical assistance.” (Id.) It

defines an EDP as “a person who appears to be mentally ill or

temporarily deranged and is conducting himself in a manner which

a police officer reasonably believes is likely to result in serious

injury to himself or others.” (Id. (emphasis added).) The Patrol

Guide outlines the procedures for “when a uniformed member of the

service reasonably believes that a person who is apparently

mentally ill or emotionally disturbed, must be taken into

protective custody because the person is conducting himself in a

manner likely to result in a serious injury to himself or others.”

(Id. at 3-8.)

On November 28, 2022, the Involuntary Removal Policy took

effect “to clarify roles and responsibilities in involuntary

removals under MHY [Mental Hygiene Law] section 9.41 and 9.58.”

(Dkt. no. 112-1 at 2.) The policy correctly notes that Section

9.41 authorizes a police officer “to take into custody, for the

purpose of a psychiatric evaluation, an individual who appears to

be mentally ill and is conducting themselves in a manner likely to

result in serious harm to self or others.” (Id.) The policy goes

further and states that “both sections 9.41 and 9.58 authorize the

removal of a person who appears to be mentally ill and displays an

inability to meet basic living needs, even when no recent dangerous

act has been observed.” (Id.) It states, “the following

circumstances could be reasonable indicia of an inability to

support basic needs due to mental illness that poses harm to the

individual: serious untreated physical injury, unawareness or

delusional misapprehension of surroundings, or unawareness or

delusional misapprehension of physical condition or health.”

(Id.) When announcing the Involuntary Removal Policy, Defendant

Mayor Adams referred to “’the shadow boxer on the street corner in

Midtown, mumbling to himself as he jabs at an invisible adversary,’

as the type of individual who could be involuntarily hospitalized

under the policy.” (TAC ¶ 144.)

C. History of Actions Taken to Address Mental Health Issues

in the City

In 2014, Defendant former Mayor de Blasio’s “Task Force on

Behavioral Health and Criminal Justice” issued an action plan to

address the intersection of the criminal justice and health systems

to “interrupt those needlessly cycling through the system.” (Id.

¶ 117.) The action plan noted that, “while the overall jail

population had decreased by 15% over the previous five years, the

percentage of people in jail with ‘mental health issues’ rose from

29% to 38%, or from around 3,500 to over 4,000 people.” (Id.)

On June 22, 2018, Defendant former Mayor de Blasio created a

second task force, the “NYC Crisis Prevention and Response Task

Force,” to address specific mental health issues connected to 911

calls and their aftermath. (Id. ¶ 119.) This task force “had

little[,] if any[,] effect.” (Id. ¶ 121.)

Then, in 2021, Defendant former Mayor de Blasio launched the

Behavioral Health Emergency Response Program (“B-Heard”), which

was created to replace police officers with mental health

professionals and EMTs to certain 911 mental health calls in

Northern Manhattan. (Id. ¶ 123.) It is grounded in the City’s

“commitment to treat mental health crises as public health problems

- not public safety issues.”10 The City’s website regarding B-

Heard explains that “[i]n emergency situations involving a weapon

or imminent risk of harm to self or others, a traditional emergency

response is dispatched, which includes NYPD officers and an

ambulance.”11

B-Heard represents a “limited” exception to the police

response for mental health emergencies as it is in “limited police

precincts” and operates “for limited hours of the day.” (Id. ¶ 81

n. 27.) “[L]ess than 5% of the overall number of mental health

calls citywide in 2023 actually received a B-Heard response.” (Id.

¶ 101 (In 2023, B-Heard only responded to approximately 7,000

calls, whereas there was a total of 300,000 mental health calls

citywide.).) Moreover, “plans for expansion of B-Heard reportedly

10 https://mentalhealth.cityofnewyork.us/b-heard.

11 Id. at FAQ 1.

have been halted, with significant cuts to its budget having been

proposed.” (Id. ¶ 102.)

In 2019 and 2022, the New York City Office of the Public

Advocate recommended increasing community services for people with

mental health issues. (Id. ¶ 63.) The 2022 update, which reported

on police responses to mental health emergencies, stated that “to

mitigate further harm and deaths, the City should strive for mental

health professionals as the default response for mental health

crises rather than law enforcement.” (Id. ¶ 122.)

Additionally, the New York City Civilian Complaint Review

Board (“CCRB”) reported having received 2,687 allegations in a

recent six-year period that the police had taken people

involuntarily to the hospital. (Id. ¶ 138.) At least fifty

lawsuits have been filed in New York alleging civil rights abuses

during interactions between the police and EDPs. (Id. ¶ 139.)

Police interactions involving EDPs are the second most common

situations where police officers use force. (Id. ¶ 140.)

In 2023, the DOJ, released a document entitled “Guidance for

Emergency Responses to People with Behavioral Health or Other

Disabilities” (“DOJ Guidance”), which explains that the ADA

applies to public emergency response and law enforcement systems

and guarantees equal opportunity for individuals with

disabilities. (Id. ¶ 95.) The DOJ found that the ADA “’requires

that people with behavioral health disabilities receive a health

response in circumstances where others would receive a health

response.’” (Id.) The DOJ Guidance further explains that

emergency dispatchers are recommended to send a crisis team, rather

than police officers, “when a call involves a person with a mental

disability and there is no need for a police response.” (Id.)

Plaintiffs further rely on two reports issued by the DOJ in

2023 regarding the DOJ’s investigations into the cities of

Minneapolis and Louisville. (Id. ¶ 96.) There, the DOJ concluded

that the cities “had engaged in a practice of disability-based

discrimination by relying on police officers as the primary first

responders to mental health emergencies.” (Id.) Additionally,

Plaintiffs informed the Court by letter of the DOJ’s findings

regarding the State of Oklahoma, Oklahoma City, and Oklahoma City

Police Department’s discrimination against people with mental

disabilities, as well as its agreement with the City of Minneapolis

and the Minneapolis Police Department to reform its

unconstitutional and unlawful practices relating to people with

mental disabilities. (Pl. Letter.)

D. Individual Plaintiffs

Individual Plaintiffs in this action are individuals with

actual or perceived mental disabilities. The parties agree that

Plaintiffs Greene, Sanchez-Esquivel, and Ayu have actual mental

disabilities. (Pl Opp’n at 8.) The parties disagree about whether

Plaintiffs Amitabh, Arivo, and Collins have any mental

disabilities. (See infra Sections III.A.i.1 & III.A.ii.) The

Court assumes familiarity with the specific facts of each

Plaintiff’s claims. (See Mem. & Order (“Order”) at 7-13, dated

Mar. 26, 2024 [dkt. no. 193]; see also TAC ¶¶ 149-331.)

Plaintiffs allege that the Individual Plaintiffs have been

“unlawfully seized and arrested without the requisite probable

cause.” (TAC ¶ 483.) Plaintiffs claim that at the time of each

seizure the individuals “were committing no crimes” and presented

no risk to themselves or anyone else, yet each was “forcibly

arrested, all were injured physically and/or emotionally, most

were handcuffed, and all were involuntarily transported to a

hospital for a psychiatric assessment.” (Id. ¶ 10.)

E. Procedural Background

On March 26, 2024, this Court issued an Opinion and Order

regarding Defendants’ motion to dismiss the Second Amended

Complaint (“SAC”). (Order.)

The Court granted Defendants’ motion to dismiss in part,

thereby dismissing, without prejudice, the following claims: (1)

false arrest claims regarding Plaintiff Ayu’s April and May 2022

arrests under Section 1983 and corresponding state law claims; (2)

warrantless entry claims of Plaintiffs Collins, Ayu, and Amitabh

under Section 1983 and corresponding state law claims; (3) failure

to provide a reasonable accommodation claims under the ADA and

Rehabilitation Act of Plaintiffs Arvio, Collins, and Amitabh; (4)

all other claims under the ADA and Rehabilitation Act; (5) all

claims under the NYCHRL; and (6) all claims under Section 1983 for

municipal liability pursuant to Monell v. Dep’t of Social Serv. of

the City of New York, 436 U.S. 658 (1978). The Court denied

Defendants’ motion to dismiss in part, thereby the following claims

survived: (1) false arrest claims regarding Plaintiffs Arvio,

Greene, Collins, Sanchez-Esquivel, Amitabh, and Ayu’s March 2022

arrests; (2) warrantless entry claims of Plaintiffs Sanchez-

Esquivel, Greene, and Arvio; (3) excessive force claims; (4)

failure to provide a reasonable accommodation claims of Plaintiffs

Greene, Sanchez-Esquivel, and Ayu under the ADA and Rehabilitation

Act. The Court held that Plaintiffs met their burden to overcome

Defendants’ qualified immunity defense. (Order at 24.) The Court

also held that Plaintiffs sufficiently allege violations of the

New York State Constitution under a theory of respondeat superior.

(Id. at 25.) Additionally, the Court held that Organizational

Plaintiff Community Access has standing to bring this action. (Id.

at 25-27.) The Court deferred consideration of the class

certification. (Id. at 40-41.)

On June 10, 2024, Plaintiffs filed a TAC repleading many of

the dismissed claims. (TAC.) Subsequently, on August 19, 2024,

Defendants filed a partial motion to dismiss certain claims in the

TAC pursuant to Federal Rule of Civil Procedure 12(b)(6) and a

motion to strike the class action certification pursuant to Federal

Rule of Civil Procedure 12(f). (Def. Mot. to Dismiss & Strike.)

Specifically, Defendants move to dismiss “the following claims in

the TAC: (1) the [Section 1983] Monell claim;12 (2) disabilit[y]

[discrimination] claims under state and federal law; (3)

[Plaintiff] Ayu’s claim for false arrest arising from his alleged

April and May 2022 arrest under federal and state law; (4)

[Plaintiffs] Collins, Ayu, and Amitabh’s warrantless entry claims

under federal and state law;”13 and (5) Section 1983 claims against

a few Individual Defendants because Defendants “lack . . . personal

involvement,” the claims are “duplicative,” and the claims are

“barred by absolute and qualified immunity.” (Def. Mem. at 2,

13.) On September 30, 2024, Plaintiffs filed a Memorandum in

Opposition to Defendants’ motions. (Pl. Opp’n Mem.) Shortly

thereafter, on October 2, 2024, the DOJ filed a Statement of

Interest pursuant to 28 U.S.C. § 517, “to explain the legal

framework of the ADA as applied to emergency response services.”

(DOJ Statement of Interest at 3.) In response, on November 18,

12 Defendants contend that Plaintiffs embed an “implied Monell

claim” within all of their claims. (Def. Mem. at 5.) However,

the TAC does not include a Monell claim against the City. (Pl.

Opp’n Mem. at 18.) Plaintiffs’ claims under Section 1983 are

brought against the Government officials in their individual

capacities. (Id.) Therefore, the Court does not further address

Defendants’ arguments regarding the Monell claim.

13 Plaintiffs do not reassert these claims of false arrest and

warrantless entry. (See Pl. Opp’n Mem. at 2, n. 1.) Therefore,

the Court does not address Defendants’ arguments regarding these

claims.

2024, Defendants submitted a Reply that addressed Plaintiffs’

opposition and the DOJ’s filing. (Def. Reply.) On December 5,

2024, Plaintiffs filed a Sur-Reply. (Pl. Sur-Reply.) On December

12, 2024, Defendants filed a Sur-Sur-Reply. (Def. Sur-Sur-Reply.)

Lastly, on January 8, 2025, Plaintiffs filed an additional letter.

(Pl. Letter.)

II. Legal Standards

A. Motion to Dismiss

To defeat a motion to dismiss for failure to state a claim

pursuant to Federal Rule of Civil Procedure 12(b)(6), a complaint

must allege sufficient facts to state a plausible claim for relief.

Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). A claim is facially

plausible “when the plaintiff pleads factual content that allows

the court to draw the reasonable inference that the defendant is

liable for the misconduct alleged.” Id. at 678.

While the Court must accept all well-pleaded factual

allegations as true and draw all reasonable inferences in

Plaintiffs’ favor, the Court is “not bound to accept as true a

legal conclusion couched as a factual allegation.” Id. (internal

quotations and citations omitted). Thus, a pleading that offers

only “labels and conclusions” or “a formulaic recitation of the

elements of a cause of action will not do.” Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 555 (2007). At this stage, the task “is

merely to assess the legal feasibility of the complaint, not to

assay the weight of the evidence which might be offered in support

thereof.” Lopez v. Jet Blue Airways, 662 F.3d 593, 596 (2d Cir.

2011) (internal quotations and citations omitted).

On a motion to dismiss, “a district court may consider the

facts alleged in the complaint, documents attached to the complaint

as exhibits, and documents incorporated by reference in the

complaint.” DiFolco v. MSNBC Cable LLC, 622 F.3d 104, 111 (2d

Cir. 2010); Chambers v. Time Warner, Inc., 282 F.3d 147, 153 (2d

Cir. 2002) (The Court may rely on material from sources heavily

relied on by Plaintiffs.).

B. Discrimination Under the ADA and Rehabilitation Act

“[A]lthough there are subtle differences between these

disability acts, the standards adopted by Title II of the ADA for

state and local government services are generally the same as those

required under section 504 of federally assisted programs and

activities.” Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d

Cir. 2003) (internal citation omitted). Because none of the subtle

distinctions between the statutes are pertinent here, the Court

considers the ADA and Rehabilitation Act claims in tandem. Id.;

see also Davis v. Shah, 821 F.3d 231, 259 (2d Cir. 2016).

Plaintiffs must allege that (1) they are “qualified

individuals” with a disability; (2) Defendants are subject to the

statutes; (3) Plaintiffs were denied “meaningful access” to

participate in or benefit from Defendants’ “services, programs, or

activities,” or were otherwise discriminated against by Defendants

because of Plaintiffs’ disabilities. Henrietta D., 331 F.3d at

272. To ensure Plaintiffs have meaningful access to the benefit

of the program, “reasonable accommodations . . . may have to be

made.” Alexander v. Choate, 469 U.S. 287, 301 (1985). However,

Defendants need not employ “any and all means” to make services

accessible but rather only “reasonable modifications that would

not fundamentally alter the nature of the service provided or

impose an undue financial or administrative burden.” Disabled in

Action v. Bd. of Elections in City of New York, 752 F.3d 189, 197

(2d Cir. 2014) (internal quotations and citations omitted).

“Fundamental alteration” is an affirmative defense, which

Defendants bear the burden of establishing. Brooklyn Ctr. for

Indep. of Disabled v. Bloomberg, 980 F. Supp. 2d 588, 657 (S.D.N.Y.

2013); see also Am. Council of Blind of New York, Inc. v. City of

New York, 495 F. Supp. 3d 211, 232-33 (S.D.N.Y. 2020).

C. Discrimination Under the NYCHRL

The NYCHRL states

It shall be unlawful discriminatory practice for any person14

who is the owner, franchisor, franchisee, lessor, lessee,

proprietor, manager, superintendent, agent, or employee of

any place or provider of public accommodation15 because of

14 Section 8-102 states that “person” includes “governmental

bodies or agencies.” N.Y.C. Admin. Code § 8-102.

15 Section 8-102 states that “place or provider of public

accommodation” includes “providers, whether licensed or

unlicensed, of goods, services, facilities, accommodations,

advantages or privileges of any kind, and places, (cont’d)

any person’s actual or perceived . . . disability . . .

directly or indirectly, to refuse, withhold from or deny to

such person the full and equal enjoyment, on equal terms and

conditions, of any of the accommodations, advantages,

services, facilities or privileges of the place or provider

of public accommodation . . . .

N.Y.C. Admin. Code § 8-107(4). Bravo v. De Blasio, 167 N.Y.S.3d

708, 718 (N.Y. Sup. Ct. 2022) (“[NYCHRL] applies to the City of

New York as much as to any other perpetrator or facilitator of .

. . discrimination.”).

The NYCHRL also requires that any person prohibited from

discriminating under Section 8-107 on the basis of disability

“provide a reasonable accommodation16 to enable a person with a

disability to . . . enjoy the right or rights in question provided

that the disability is known or should have been known by the

covered entity.”17 N.Y.C. Admin. Code § 8-107(15).

Claims brought under the NYCHRL must be evaluated “separately

and independently from any federal and state law claims.” Mihalik

v. Credit Agricole Cheuvreux N. Am., Inc., 715 F.3d 102, 109 (2d

(cont’d) whether licensed or unlicensed, where goods, services,

facilities, accommodations, advantages or privileges of any

kinds are extended, offered, sold, or otherwise made available.”

N.Y.C. Admin. Code § 8-102.

16 Section 8-102 states that “reasonable accommodation” is an

“accommodation that can be made that does not cause undue

hardship in the conduct of the covered entity’s business.”

N.Y.C. Admin. Code § 8-102. It also states that the covered

entity has the burden of proving undue hardship. Id.

17 Section 8-102 defines “covered entity” as “a person required

to comply with any provision of section 8-107.” N.Y.C. Admin.

Code § 8-102.

Cir. 2013). The provisions must be construed “broadly and in favor

of the plaintiff.” Lowell v. Lyft, Inc., 352 F. Supp. 3d 248, 262

(S.D.N.Y. 2018).

III. Discussion

A. Discrimination Regarding the Citywide Emergency Response

Program18

The Court liberally reads the TAC as Plaintiffs’ alleging

that the City’s emergency response program is discriminatory

because different entities (NYPD versus EMS) are dispatched as the

lead responders in response to mental health emergencies and

physical health emergencies and, even if the same entity (EMS) was

dispatched in both scenarios, mental health emergencies require a

reasonable accommodation meaningfully to access the benefit of the

City’s emergency response program, which in Plaintiffs’ view

should be an expansion of the B-Heard program to ensure health

professionals arrive on-site of mental health emergencies.

i. Discrimination Under the ADA and Rehabilitation Act

Defendants move to dismiss Plaintiffs’ discrimination claim

under the ADA and Rehabilitation Act arguing that: (1) Plaintiffs

are challenging MHL § 9.41, and the Court previously decided this

18 Plaintiffs state that they adequately allege a deliberate

indifference claim. (Pl Opp’n Mem. at 17 n. 15.) However,

Plaintiffs also state that they are no longer bringing a Monell

claim. (Pl. Opp’n Mem. at 18.)

issue in favor of Defendants, (Def. Reply at 19);19 (2) all

Individual Plaintiffs are not “qualified individuals,” (Def. Mem.

at 19); (3) Plaintiffs fail to reasonably define the “service,

program, or activity,” and even so, Plaintiffs “meaningfully

access” its benefits, (Def. Reply at 1-12); (3) Plaintiffs seek a

“fundamental alteration” of the City’s program as opposed to a

reasonable accommodation, (Def. Reply at 12-14, 15-18). The Court

will address each in turn.

1. “Qualified Individual”

a. Plaintiffs Greene, Sanchez-Esquivel, and

Ayu

The parties agree that Plaintiffs Greene, Sanchez-Esquivel,

and Ayu are individuals with mental disabilities and therefore are

“qualified individuals” under the statutes. (Pl Opp’n at 8.)

b. Plaintiffs Amitabh, Arivo, and Collins

As to Plaintiffs Amitabh, Arivo, and Collins, Defendants

argue that Plaintiffs “failed to allege that they had a

disability.” (Def. Mem. at 19.) Plaintiffs explain that they

were “regarded as having such an impairment,” as defined by 42

U.S.C. § 12102 (3), because they were designated as EDPs and

perceived by the 911 call-takers, emergency dispatchers, and

19 The Court does not address this argument further because

Plaintiffs clearly state, in the TAC and their opposition

papers, that they are not challenging MHL § 9.41, but rather

they are challenging the City’s emergency response program at

the highest level. (Pl. Opp’n Mem. at 10.)

responding police officers as having mental disabilities. (Pl.

Opp’n at 8.)

Under the ADA, the term “disability” includes individuals who

are “being regarded as having such an impairment.”20 42 U.S.C.

§ 12102(1)(C); 42 USC § 12102 (3). Hilton v. Wright, 673 F.3d

120, 129 (2d Cir. 2012) (Plaintiff is “not required to present

evidence of how or to what degree [Defendant] believed the

impairment affected him,” just that Defendant “regarded him as

having a mental or physical impairment.”). Plaintiffs

sufficiently allege that Plaintiffs had perceived mental

disabilities given that the call-takers, dispatchers, and officers

perceived Plaintiffs as having such. Accordingly, Plaintiffs are

all deemed to be “qualified individuals” under the statutes.

However, whether Plaintiffs are “qualified individuals” for

the purpose of a reasonable accommodation claim requires further

analysis. This rationale was detailed in the Court’s prior order

and remains unchanged. (Order at 33 n. 14.)

Discrimination under the ADA and Rehabilitation Act includes

failure to make “reasonable accommodations to the known physical

or mental limitations of an otherwise qualified individual with a

20 Under Section 504 of the Rehabilitation Act, a “qualified

individual with a disability” means “any person who has a

disability as defined in section 12102 of Title 42,” which is

the ADA. 29 U.S.C. § 794(a); 29 U.S.C. § 705 (20)(B). Thus,

the standard is the same under both statutes.

disability . . . unless such covered entity can demonstrate that

the accommodation would impose an undue hardship.”21 42 U.S.C

§ 12112(b)(5)(A) (emphasis added). The ADA states that a covered

entity does not need to provide a reasonable accommodation to an

individual who is a “qualified individual” solely because he/she

was “being regarded as having such an impairment.” 42 U.S.C.

§ 12201(h); 42 U.S.C. § 12102(1)(C). Thus, Plaintiffs may only

sustain their reasonable accommodation claim under the ADA and

Rehabilitation Act where Defendants are on notice of an actual,

not perceived, disability. See Williams v. Geiger, 447 F. Supp.

3d 68, 79-80 (S.D.N.Y. 2020). Therefore, Defendants’ motion to

dismiss as to Plaintiffs Amitabh, Arivo, and Collins is GRANTED.

Accordingly, the following sub-sections of Section III.A.i address

Plaintiffs Greene, Sanchez-Esquivel, and Ayu only.

2. “Meaningful Access” to the Benefits of the

“Service, Program, or Activity”

Defendants argue that Plaintiffs fail to define reasonably

the “service, program, or activity” that is the locus of the

21 The Rehabilitation Act states, “The standards used to

determine whether this section has been violated in a complaint

alleging employment discrimination under this section shall be

the standards applied under [T]itle I of the Americans with

Disabilities Act of 1990 (42 U.S.C. § 12111 et seq.) and the

provisions of sections 501 through 504, and 510, of

the Americans with Disabilities Act of 1990 (42 U.S.C. §§ 12201–

12204 and 12210), as such sections relate to employment.” 29

U.S.C. § 794(d). Thus, the standard is the same under both

statutes.

alleged discrimination. (Def. Reply at 1-12.) Defendants assert

that the “city emergency program” is defined at an “amorphous level

of generality,” that has “no mooring in concrete services,

statutes, or regulations.” (Id. at 2.) Plaintiffs argue that the

program at issue is the “emergency response program” and it falls

within the meaning of “service, program, or activity.” (Pl. Sur-

Reply at 1-2.) For the purpose of this analysis, the Court

assumes, without deciding, that the alleged emergency response

program qualifies as a “service, program, or activity” under the

statutes.

The relevant question is whether Plaintiffs were denied

meaningful access to the benefits of the emergency response

program. Am. Council of Blind of New York, Inc., 495 F. Supp. 3d

at 232. Meaningful access does not mean equal access or equal

results. Id.

Defendants argue that there is a difference between failing

to provide Plaintiffs with any medical response and Plaintiffs’

not receiving the response they want, in the exact way they want

it. (Def. Mem. at 9.) Defendants note that challenging the

adequacy or the substance of services that are being provided to

mental health emergencies is not a valid claim. (Def. Reply at 3-

4.) Defendants argue that Plaintiffs, in effect, demand that the

City provide a different version of B-Heard – expanded citywide,

full-time and with improved services - to respond to all mental

health emergencies. (Def. Reply at 15-18.)

Plaintiffs allege that they were denied an equal opportunity

to benefit from the emergency response program because their mental

health emergencies receive a different, less effective response.

(Pl. Opp’n Mem. at 12-17.) They allege that they require a

reasonable accommodation - expansion of B-Heard - to “meaningfully

access” the benefits of the emergency response program. (Id.)

The emergency response program was created to provide

“timely, safe[,] and effective emergency response services.” (TAC

¶ 444.) More specifically, Plaintiffs state that the programs’

“benefits are timely and effective health responses to health

emergencies, based on the Program’s functions of providing

assessment of health needs, on-the-spot stabilizing care, and

determining need for further treatment.” (Pl. Sur-Reply at 3.)

That is exactly what the program does for all participants - if

there is a safety emergency, the police are dispatched, and if

there is a health emergency, EMTs are dispatched.22 Plaintiffs

allege that officers being dispatched as the first or lead

responder to mental health emergencies is discriminatory. The

characterization of who is the “first or lead responder,” however,

is a red herring. In fact, all Individual Plaintiffs had EMTs on-

22 https://www.nyc.gov/site/911reporting/reports/reports.page.

site. Contrast Disability Rts. Oregon v. Washington Cnty. No. 24

Civ. 00235 (SB), 2024 WL 4046017, at *3-4 (D. Or. Aug. 30, 2024)

(Plaintiffs who experience mental health emergencies are not given

access to EMS unless police officers request the assistance.).

The website detailing the B-Heard program provides additional

evidence that the traditional emergency response is having both

officers and EMTs dispatched to mental health emergencies.23

Plaintiffs further allege that even if EMTs are present on-

site at mental health emergencies, EMTs do not handle mental health

emergencies the same way they do physical health emergencies.

Plaintiffs allege that when EMTs are dispatched to physical health

emergency they provide assessment and on-the-spot stabilizing care

and determine the need for further treatment; on the other hand,

at mental health emergencies, EMTs often exacerbate the harms.

(TAC ¶¶ 74, 76, 82.) Plaintiffs’ allegations attack the adequacy

of the services provided as opposed to the denial of services

provided to non-disabled individuals. See e.g., Tardif v. City of

New York, 991 F.3d 394, 404-05 (2d Cir. 2021) (holding that the

failure to provide custodial medical services does not, by itself,

“constitute[] a failure to make a reasonable accommodation ‘by

reason of’ an individual’s disability under the ADA” because “the

fact that her disability was her motivation for seeking out such

23 https://mentalhealth.cityofnewyork.us/b-heard.

services does not suddenly transform her allegations regarding the

inadequate medical treatment into a ‘failure to accommodate’

claim.”); Maccharulo v. New York State Dep’t of Corr. Servs., No.

08 Civ. 301 (LTS), 2010 WL 2899751, at *4 (S.D.N.Y. July 21, 2010)

(“A challenge to the adequacy of services provided, as opposed to

a challenge alleging denial of services provided to non-disabled

persons, is not a valid claim under the ADA or the Rehabilitation

Act.”); Atkins v. Cnty. of Orange, 251 F. Supp. 2d 1225, 1232

(S.D.N.Y. 2003) (finding there to be no claim under the ADA or

Rehabilitation Act where Plaintiff is “in essence challenging the

adequacy of the mental health services provided . . . not illegal

disability discrimination”); see also Harrell v. New York State

Dep’t of Corr. & Cmty. Supervision, No. 15 Civ. 7065 (RA), 2019 WL

3821229, at *16 (S.D.N.Y. Aug. 14, 2019) (no ADA or Rehabilitation

Act violation where Plaintiff “merely asserts that his disability

was not adequately treated, not that he was treated inadequately

because of his disability”). This claim is not cognizable under

the ADA or Rehabilitation Act. Doe v. Pfrommer, 148 F.3d 73, 84

(2d Cir. 1998) (There is no violation of the statutes where

Plaintiff challenges “the substance of the services provided”

rather than “illegal discrimination against the disabled.”). As

the Court noted in its prior Order,

If Plaintiffs claimed that they had a medical emergency, like

a heart attack, but were denied an ambulance because of their

mental disability, their claim would come closer to stating

actionable discrimination under the ADA. But this is not

their claim, which concerns only the adequacy of the services

provided exclusively for the mentally disabled.

(Order at 32.)

Evaluating the emergency response program and considering the

relevant case law, Plaintiffs do not sufficiently allege that the

City’s emergency response program is discriminatory. Accordingly,

Defendants’ motion to dismiss this claim is GRANTED.24

ii. Discrimination Under the NYCHRL

Defendants argue that Plaintiffs’ discrimination claims under

the NYCHRL should be dismissed consistent with the reasons

articulated for the discrimination claims under the ADA and

Rehabilitation Act, see supra Section III.A.i. The elements of a

claim under the NYCHL mirror those of the ADA and Rehabilitation

Act with one exception – the NYCHRL requires that reasonable

accommodations be provided “to enable a person with a disability

to . . . enjoy the right or rights in question provided that the

disability is known or should have been known by the covered

entity.” N.Y.C. Admin. Code § 8-107(15). This means that all

Individual Plaintiffs may bring reasonable accommodation claims

under the NYCHRL. However, the analysis is otherwise the same as

detailed above, see supra Section III.A.i. Accordingly, even under

24 Given this holding, the Court need not address the parties’

arguments regarding whether B-Heard is a reasonable

accommodation or a fundamental alteration of the emergency

response program.

the more liberal standard of the NYCHRL, Defendants motion to

dismiss this claim as to all Individual Plaintiffs is GRANTED.

B. Discrimination Regarding the On-Site Response to the

Mental Health Emergency

Plaintiffs allege that they should have received reasonable

accommodations during their “arrests” that occurred on-site of

their mental health emergencies under the ADA, Rehabilitation Act

and NYCHRL. (TAC ¶¶ 448, 470, 530.)

i. Discrimination Under the ADA and Rehabilitation Act

1. Claims as to Plaintiffs Greene, Sanchez-

Esquivel, and Ayu’s Known Disabilities

The Court previously held that the reasonable accommodations

claims as to Plaintiffs Greene, Sanchez-Esquivel, and Ayu were

sufficiently alleged under the ADA and Rehabilitation Act. (Order

at 33.) Defendants request “reconsideration” of this holding

because “the Court did not consider whether plaintiffs’ incidents

were alleged to be ‘arrests’ in the relevant sense.” (Def. Mem.

at 21.) Defendants argue that “MHL [§] 9.41 applies if and only

if the person is being taken into custody involuntarily for

psychiatric evaluation” and to characterize that as an “arrest”

such that it is a ”program or service” that requires Plaintiffs to

be reasonably accommodated “is inconsistent with the governing law

on which the Court has relied.” (Id.) Defendants add that

’the mental health arrest’ referred to by the TAC, and the

Court, is none other than the involuntary removal for

psychiatric evaluation called for by MHL [§] 9.41, which, as

the Court held, is a program intended solely for persons

having a mental disability, not the general public.

Therefore, all of plaintiffs’ disability claims should be

dismissed.

(Id. at 22; see also Def. Reply at 14-15.)

Plaintiffs argue that Defendants’ request for reconsideration

on this issue is both untimely and meritless. (Pl. Opp’n Mem. at

17-18.) Plaintiffs state that police officers must make reasonable

accommodations for people with disabilities during an arrest (even

if the “arrest” is made pursuant to MHL § 9.41) and whether the

“arrest” is an arrest by definition, or a mental health arrest, or

a detainment, or a removal. (Id. at 18.)

Under S.D.N.Y Local Civil Rule 6.3, “a notice of motion for

reconsideration must be served within 14 days after the entry of

the court’s order being challenged.” S.D.N.Y. L.R. 6.3. The

Court's Order on this issue was entered on March 26, 2024.

(Order.) Defendants requested reconsideration in its partial

motion to dismiss the TAC on August 19, 2024. (Def. Mem. at 21.)

Thus, having filed nearly five months later, the Defendants’

request for reconsideration is untimely. McGraw-Hill Glob. Educ.

Holdings, LLC v. Mathrani, 293 F. Supp. 3d 394, 397 (S.D.N.Y. 2018)

(“[T]he untimeliness of a motion for reconsideration is reason

enough to deny the motion.”).

Even if the Court needed to reach the merits of the motion to

reconsider, Defendants’ arguments fail. “The major grounds

justifying reconsideration are an intervening change of

controlling law, the availability of new evidence, or the need to

correct a clear error or prevent manifest injustice.” Virgin Atl.

Airways, Ltd. v. Nat’l Mediation Bd., 956 F.2d 1245, 1255 (2d Cir.

1992) (quotations and citations omitted). Motions to reconsider

are generally denied “unless the moving party can point to

controlling decisions or data that the court overlooked -- matters,

in other words, that might reasonably be expected to alter the

conclusion reached by the court.” Nakshin v. Holder, 360 F. App’x

192, 193 (2d Cir. 2010) (internal citation omitted); see also

Shrader v. CSX Transp., Inc., 70 F.3d 255, 257 (2d Cir. 1995).

Defendants argue that the Court mischaracterized the detainment

that the officers conducted pursuant to MHL § 9.41 as an arrest

but do not point to any controlling law. (Def. Mem. at 21-22.)

Whiddon v. Buzzfeed, Inc., No. 22 Civ. 4696 (CM), 2022 WL 17632593,

at *3 (S.D.N.Y. Dec. 13, 2022) (“A motion to reconsider should not

be granted when the moving party seeks solely to relitigate an

issue already decided.” (internal citation omitted)).

Additionally, Defendants must make reasonable accommodations for

people with disabilities during an “arrest” whether the “arrest”

is an arrest by definition, or a mental health arrest, or a

detainment, or a removal. Morales v. City of New York, No. 13

Civ. 7667 (RJS), 2016 WL 4718189, at *7 (S.D.N.Y. Sept. 7, 2016);

Anthony v. City of New York, No. 00 Civ. 4688 (DLC), 2001 WL

741743, at *11 (S.D.N.Y. July 2, 2001) (concluding that “police

officers’ response to the 911 call and seizure of [plaintiff] for

psychiatric evaluation are police activities or services and are,

thus, covered by the ADA”), aff'd on other grounds, 339 F.3d 129

(2d Cir. 2003); see also Guan v. City of New York, 37 F.4th 797,

807 (2d Cir. 2022) (stating the standard to make a mental health

arrest, which is the same standard as that under MHL § 4.91.).

Lastly, outside of the context of a formal motion for

reconsideration, Defendants argue that they are allowed to make

this argument now because the claims were replead in the TAC,

however that is not the law. Dikambi v. City Univ. of New York,

No. 19 Civ. 9937 (RA), 2022 WL 2292873, at *3 (S.D.N.Y. June 24,

2022) (finding Defendant’s motion to dismiss was “a disguised

reconsideration motion, as he . . . attempts to relitigate the

Court’s prior findings [from the previously denied motion to

dismiss]”).

Accordingly, Defendants’ motion to dismiss on this issue as

to Plaintiffs Greene, Sanchez-Esquivel, and Ayu is DENIED.

2. Claims as to Plaintiffs Amitabh, Arivo, and

Collins’ Perceived Disabilities

Plaintiffs do not reallege this claim as to Plaintiffs

Amitabh, Arivo, and Collins. Thus, the Court need not address it.

ii. Discrimination Under the NYCHRL

1. Claims as to Plaintiffs Greene, Sanchez-

Esquivel, and Ayu’s Known Disabilities

As noted, the Court previously held that the ADA and

Rehabilitation Act apply to “arrests.” (Order at 33.) The NYCHRL

similarly applies to “arrests.” See, e.g., D.H. v. City of New

York, 309 F. Supp. 3d 52, 80-81 (S.D.N.Y. 2018). Additionally, as

detailed above, the Court finds that the ADA and Rehabilitation

Act apply to “arrests,” whether classified an arrest by definition,

or a mental health arrest, or a detainment, or a removal, see supra

Section III.B.i. The analysis under the more liberal standard of

the NYCHRL is no different. Williams v. City of New York, 121 F.

Supp. 3d 354, 364 n. 10 (S.D.N.Y. 2015) (In the context of whether

the ADA, NYSHRL, and NYCHRL apply to police interactions at the

scene of an arrest, the Court states, “[i]f Plaintiff can satisfy

her burden under the ADA, she will also satisfy her burden under

Section 504, the NYSHRL, and NYCHRL.”). Notably, even though MHL

§ 9.41 permits the “arrest” it does not mean that it precludes

reasonable accommodations from being made during such “arrest.”

Accordingly, Defendants’ motion to dismiss this claim under

the NYCHRL is DENIED.

2. Claims as to Plaintiffs Amitabh, Arivo, and

Collins’ Perceived Disabilities

Plaintiffs do not reallege this claim as to these Plaintiffs.

Thus, the Court need not consider it.

C. Section 1983 Claims Against the Executive Defendants

Plaintiffs allege that Defendants Mayor Adams, former Mayor

de Blasio, NYPD Commissioner Caban, former NYPD Commissioner

Sewell, and former NYPD Commissioner Shea (collectively,

“Executive Defendants”) were personally involved in the law and

policies that “instructed” police officers to unlawfully enter

Plaintiffs’ homes and seize Plaintiffs without probable cause and

use excessive force in the process, all of which constitute

constitutional violations.25 (Pl. Opp’n Mem. at 18-22.) This

claim is essentially a restatement of Plaintiffs’ Monell liability

claim, but instead of against the City it is being brought against

the officials in their individual capacities. (Id. at 18.)

Plaintiffs argue that Executive Defendants were “aware of,

and failed to remedy, the civil violations that occur when police

are dispatched to mental health emergencies.” (Id. at 18-19.)

Defendants move to dismiss these Section 1983 claims against

Executive Defendants because Executive Defendants lack “personal

involvement,” the claims are “duplicative,” and the claims are

25 The Court has previously held that “Plaintiffs have sufficiently

pled that Defendants, [the individual officers], violated these

rights by unlawfully entering Plaintiffs’ homes and seizing

Plaintiffs without probable cause and by using excessive force in

the process.” (Order at 24.)

“barred by absolute legislative immunity and qualified immunity.”26

(Def. Mem. at 13-18.)

For the reasons set out below, Defendants’ motion to dismiss

the Section 1983 claims against Executive Defendants is GRANTED

due to a lack of personal involvement. As such, the Court need

not address the parties’ arguments regarding absolute legislative

immunity or qualified immunity.

i. Lack of Personal Involvement

To state a claim under Section 1983 against Executive

Defendants, Plaintiffs must allege specific facts to demonstrate

that each Executive Defendant was personally involved in the

alleged constitutional violations. Wright v. Smith, 21 F.3d 496,

501 (2d Cir. 1994). Prior to Tangreti v. Bachmann, 983 F.3d 609

(2d Cir. 2020), the Court of Appeals held that the following

factors could establish Defendants’ personal involvement:

(1) the defendant participated directly in the alleged

constitutional violation, (2) the defendant, after being

informed of the violation through a report or appeal, failed

to remedy the wrong, (3) the defendant created a policy or

custom under which unconstitutional practices occurred, or

26 Defendants argue that the claims against the Executive

Defendants should be dismissed as duplicative or redundant because

a “suit against the mayor and police chief in their official

capacities is essentially a suit against the City . . . , because

in a suit against a public entity, naming officials of the public

entity in their official capacities adds nothing to the suit.”

(Def. Mem. at 15 (internal citation omitted).) However,

Defendants’ argument is meritless because the TAC does not include

a Monell claim against the City but rather sues Executive

Defendants in their individual capacities. (Pl. Opp’n Mem. at

18.)

allowed the continuance of such a policy or custom, (4) the

defendant was grossly negligent in supervising subordinates

who committed the wrongful acts, or (5) the defendant

exhibited deliberate indifference to the rights of inmates by

failing to act on information indicating that

unconstitutional acts were occurring.

Colon v. Coughlin, 58 F.3d 865, 873 (2d Cir. 1995); see also

Williams v. Smith, 781 F.2d 319, 323-24 (2d Cir. 1986). But, in

Tangreti, the Court of Appeals rejected “a special test for

supervisory liability.” 983 F.3d at 620. And since Tangreti,

whatever the alleged constitutional violation may be, “[t]he

violation must be established against the supervisory official

directly.” Id. at 618; see also Smart v. Annucci, No. 19 Civ.

7908 (CS), 2021 WL 260105, at *5 (S.D.N.Y. Jan. 26, 2021).

Although the Second Circuit generally rejected Colon,

Tangreti does not suggest that Colon’s third factor—whereby

a defendant can be said to be personally involved in a

constitutional violation if he ‘created a policy or custom

under which unconstitutional practices occurred, or allowed

the continuance of such a policy or custom,’—could never form

the basis of an official's liability.

Stone #1 v. Annucci, No. 20 Civ. 1326 (RA), 2021 WL 4463033, at *8

(S.D.N.Y. Sept. 28, 2021). “[M]ere notice of an unconstitutional

practice may be inadequate. After all, the mens rea required of

a supervisor to be held liable can be no less than the mens rea

required of anyone else.” Id. at *9 (internal quotations and

citations omitted). “The distinction between actual subjective

knowledge and mere notice, however, may not be especially

significant at the pleadings stage.” Id. at *10.

Plaintiffs allege, in a conclusory manner, that Executives

Defendants were aware of the City’s history of mental health

policies and deficiencies in the police response to mental health

emergencies since 2014 through statistical reports, complaints,

and lawsuits against the City, and therefore had the requisite

knowledge. See infra Section I.C. Additionally, regarding the

Commissioners, Plaintiffs allege that they “knew or should have

known of a) the operation of the 911 system, b) police officers’

understanding that the Patrol Guide requires involuntary removal

of all ‘EDPs,’ and c) the consequences of police officer training

(or lack thereof) for handling mental health emergencies.” (Pl.

Opp’n Mem. at 21.)

In addition, Plaintiffs allege specific facts as to each

Executive Defendant’s relevant individual actions. Regarding

Defendant Former Mayor de Blasio, Plaintiffs allege that he created

two task forces and participated in the launch of B-Heard. (TAC

¶¶ 117, 119, 123.) Regarding Defendant Mayor Adams, Plaintiffs

allege that he made a statement after the announcement of the

Involuntary Removal Policy, see supra Section I.C, which

“functionally encourage[ed] police to arrest people with mental

disabilities based on false stereotypes of their being prone to

violence.”27 (Pl. Opp’n Mem. at 21.) However, his statement did

not address how people should be treated when arrested, which is

what the underlying constitutional violation alleged here relates

to. And, regarding the NYPD Commissioners, Plaintiffs allege that

they had/have “final authority to promulgate and implement

administrative and managerial policies and procedures, including

policies and procedures with respect to 911 and NYPD officers’

performance of their duties.” (TAC ¶¶ 32-34; Pl. Opp’n Mem. at

21.)

None of these actions, taken together with the purported

knowledge that Executive Defendants had, is sufficient to

establish that Executive Defendants were personally involved in

the alleged constitutional violations. In re New York City

Policing During Summer 2020 Demonstrations, 548 F. Supp. 3d 383,

410-11 (S.D.N.Y. 2021) (holding that the Commissioner did not have

personal involvement in the alleged constitutional violations

where he made several statements to the press indicating that he

had seen protest footage, was aware of the confrontations and

praised the NYPD’s handling of the protests, and he received

regular reports); Contrast Stone #1, 2021 WL 4463033, at *10

(holding that Commissioners of the Department of Corrections were

27 Plaintiffs do not dispute that Defendant Mayor Adams has

absolute legislative immunity for the promulgation of the

Involuntary Removal Policy. (Pl. Opp’n Mem. at 22.)

personally involved where they had knowledge of statistical

reports, were aware of steps taken by other states and local

institutions, were named defendants in other suits, and were aware

of numerous prosecutions and convictions.). Instead, the

allegations are an unsuccessful attempt to hold Executive

Defendants liable merely because they held an influential and

supervisory position. See Dove v. Fordham Univ., 56 F. Supp. 2d

330, 336-37 (S.D.N.Y. 1999), aff'd sub nom. Dove v. O'Hare, 210

F.3d 354 (2d Cir. 2000); Gill v. Mooney, 824 F.2d 192, 196 (2d

Cir. 1987) (dismissing a Section 1983 claim against the

superintendent of a correctional facility that is responsible for

the operations, management, and conduct of all staff because absent

some personal involvement in the allegedly unlawful conduct of his

subordinates, cannot be held liable under Section 1983).

Accordingly, Defendants’ motion to dismiss claims against

Executive Defendants for lack of personal involvement is GRANTED.

IV. Class Certification

Plaintiffs request class certification pursuant to Federal

Rules of Civil Procedure 23(b)(2) and (3). (TAC ¶ 426.)

Defendants move to strike Plaintiffs’ demand for class

certification pursuant to Federal Rule of Civil Procedure 12(f)

arguing that Plaintiffs’ claims cannot meet the requirements of

Federal Rule of Civil Procedure 23(a). (Def Mem. at 22-25; Def.

Reply at 19-20.)

The Court has already rejected Defendants’ pleadings-stage

attacks on Plaintiffs’ class allegations. (Order at 40-41.)

Defendants cannot use Federal Rule of Civil Procedure 12(f) to

window dress what is an untimely motion for reconsideration.

However, even looking to the merits of the claim, Defendants fail

to show that the allegations should be stricken.

Federal Rule of Civil Procedure 12(f) provides that the “court

may strike . . . any redundant, immaterial, impertinent, or

scandalous matter.” Fed. R. Civ. P. 12(f). Motions to strike

class action allegations are typically “viewed with disfavor and

infrequently granted.” Haley v. Tchrs. Ins. & Annuity Assoc. of

Am., 377 F. Supp. 3d 250, 272 (S.D.N.Y. 2019) (internal quotations

and citation omitted). This is because such motions require the

Court to “preemptively terminate the class aspects of litigation,

solely on the basis of what is alleged in the complaint, and before

plaintiffs are permitted to complete the discovery to which they

would otherwise be entitled on questions relevant to class

certification.” Blagman v. Apple Inc., No. 12 Civ. 5453 (ALC)

(JCF), 2013 WL 2181709, at *2 (S.D.N.Y May 20, 2013). There are

exceptions to the rule – (1) if the motion to strike addresses

issues that are “separate and apart from the issues that will be

decided on a class certification motion,” then the motion is not

procedurally premature, Chen-Oster v. Goldman, Sachs & Co., 877 F.

Supp. 2d 113, 117 (S.D.N.Y. 2012), and/or (2) “where it is clear

that the putative class action claim will not proceed,” Bank v.

CreditGuard of Am., No. 18 Civ. 1311 (PKC) (RLM), 2019 WL 1316966,

at *4 (E.D.N.Y. Mar. 22, 2019).

The exceptions are not applicable here. Defendants raise the

same arguments that would ordinarily be raised at the class

certification stage. And, the TAC does not demonstrate that “the

requirements for maintaining a class action cannot be met.”

Borgese v. Baby Brezza Enterprises LLC, No. 20 Civ. 1180 (VM),

2021 WL 634722, at *2 (S.D.N.Y. Feb. 18, 2021); see also Camacho

v. City of New York, No. 19 Civ. 11096 (DLC), 2020 WL 4014902, at

*3-4 (S.D.N.Y. July 16, 2020). Thus, it is “simply too soon to

tell” whether the class will be certified. Chenensky v. NY Life

Ins. Co., No. 07 Civ. 11504 (WHP), 2011 WL 1795305, at *4 (S.D.N.Y.

Apr. 27, 2011). Therefore, the Court defers the Rule 23

determination until the class certification stage. Haley v. Tchrs.

Ins. & Annuity Assoc. of Am., 377 F. Supp. 3d 250, 272-73 (S.D.N.Y.

2019); Rojas v. Triborough Bridge & Tunnel Auth., No. 18 Civ. 1433

(PKC), 2020 WL 1910471, at *3 (S.D.N.Y. Apr. 17, 2020) (“A proposed

class definition is not properly adjudicated at the Rule 12(b)(6)

stage, and should be raised in connection with any Rule 23 motion

for class certification.”). Accordingly, Defendants’ motion to

strike is DENIED.

Vv. Conclusion

For the foregoing reasons, Defendants’ motion to dismiss the

disability claims regarding the emergency response program

pursuant to Title II of the ADA, Section 504 of the Rehabilitation

Act, and the NYCHRL is GRANTED as to all Individual Plaintiffs.

Defendants’ motion to dismiss the disability claims regarding the

on-site response pursuant to Title II of the ADA, Section 504 of

the Rehabilitation Act, and the NYCHRL is DENIED. Additionally,

Defendants’ motion to dismiss claims under Section 1983 against

Executive Defendants is GRANTED. Lastly, Defendants’ motion to

strike Plaintiffs’ demand for class certification is DENIED.

The Court finds this matter suitable for determination on the

papers and without oral argument pursuant to Federal Rule of Civil

Procedure 78(b).

The Clerk of the Court is respectfully directed to close the

open motion at dkt. no. 228.

The parties shall confer and inform the Court, by letter, how

the parties wish to proceed, including on the outstanding discovery

issues, by April 15, 2025.

SO ORDERED.

Dated: March 28, 2025

New York, New York

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LORETTA A. PRESKA —————™

Senior United States District Judge

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