Mendoza-Lebron v. Adams

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

LILLIANA MENDOZA-LEBRON et al.,

Plaintiffs,

v. MEMORANDUM & ORDER

24-CV-05154 (HG)

ERIC ADAMS, in his capacity as Mayor of

the City of New York, et al.,

Defendants.

HECTOR GONZALEZ, United States District Judge:

Plaintiff homeowners1 bring this action pursuant to 42 U.S.C. § 1983; the Americans

with Disabilities Act (the “ADA”), 42 U.S.C. § 12101 et seq.; the Fair Housing Act (the

“FHA”)2, 42 U.S.C. § 3601 et seq.; and various state and local laws, alleging claims against

various City of New York (the “City”) Defendants3. ECF No. 1 (Compl.). Before the Court is

Defendants’ motion to dismiss pursuant to Rules 12(b)(1)4 and 12(b)(6). ECF No. 19 (Mot. to

Dismiss). For the reasons explained below, Defendants’ motion is GRANTED.

1 Plaintiffs are Lilliana Mendoza-Lebron, Harvey Mendoza, Ethel Oliphant, Jim Hamlin-

McLeod, Elvira Beltrez-Tavarez, Francisco Tavarez, and Junior Beckford.

2 The ADA and FHA claims are brought as to Plaintiffs Oliphant, Hamlin-McLeod, and

Tavarez only. ECF No. 1 at 46.

3 Defendants are Eric Adams, in his capacity as Mayor of the City, Rohit T. Aggarwala, in

his capacity as Commissioner of the City’s Department of Environmental Protection (“DEP”);

and the New York City Water Board (“Water Board”). The City is not a Defendant.

4 Although Defendants move to dismiss only under Rule 12(b)(6), the Court’s

consideration of a motion to dismiss for mootness and lack of standing is properly considered

under Rule 12(b)(1). See Gannon v. 31 Essex St. LLC, No. 22-cv-1134, 2023 WL 199287, at *2

(S.D.N.Y. Jan. 17, 2023) (considering a 12(b)(6) motion to dismiss for lack of standing under

Rule 12(b)(1)).

BACKGROUND5

Plaintiffs are challenging the City’s policy of shutting off running water to buildings

whose owners are delinquent on their water bills. ECF No. 1 ¶¶ 1–2. The City’s DEP and Water

Board supply water to over eight million people. Id. ¶ 19. Historically, the City has not shut off

residential water service for unpaid bills due to health and safety concerns. Id. ¶ 22. Beginning

in 1996 under then-Mayor Giuliani, the City began annually selling and securitizing property tax

and water liens through City-established trusts. Id. ¶ 23. Subsequent amendments to the lien

sale law in 2001 and 2007 expanded this authority, allowing the City’s lien-sale entities to use

judicial foreclosure. Id. ¶ 24. However, protections were added: the 2007 law excluded single-

family homeowners and vulnerable low/moderate-income two- or three-family homeowners (i.e.,

elderly, disabled, veterans, and service-members) from having water/sewer debts sold. Id.

¶¶ 25–28. Though their debts continued to accrue without sale, this policy aimed to let

vulnerable residents stay in their homes. Id. In 2020, during the COVID-19 pandemic, a state-

mandated suspension halted the lien sale; it briefly resumed in December 2021, with water debt

again excluded. Id. ¶¶ 29–30.

In March 2024, Mayor Adams announced a new policy of shutting off water to individual

City property owners who were delinquent on their water bills. Id. ¶¶ 31–32. Plaintiffs allege

that Defendants are targeting one- and two-family homes for water shutoffs, while using law

firms to collect from larger buildings, and that this approach disregards the fact that many small-

homeowners owe large debts due to hardship, past repayment plans, or exemptions under the

5 The Court “recite[s] the substance of the allegations as if they represented true facts, with

the understanding that these are not findings of the [C]ourt, as [I] have no way of knowing at this

stage what are the true facts.” In re Hain Celestial Grp., Inc. Sec. Litig., 20 F.4th 131, 133 (2d

Cir. 2021). Unless otherwise indicated, when quoting cases and the parties’ papers, all internal

quotation marks, alteration marks, emphases, footnotes, and citations are omitted. The Court

refers to the pages assigned by the Electronic Case Files system (“ECF”).

City’s policy protecting elderly or disabled residents from lien sales. Id. ¶¶ 34–39. Plaintiffs

further allege that although Defendants say their goal “is to be compassionate to those who

deserve our compassion and enforcing on those who are trying to game the system,” Defendants

have failed to provide notice to Plaintiffs of “any protections for seniors or families with

children, and have not even complied with existing protections that are in place for residents who

are living with medical conditions, many of whom are disabled, which would ensure access to

running water for vulnerable individuals.” Id. ¶¶ 41–42.

The Water Board is subject to the Home Energy Fair Practices Act (“HEFPA”) and its

implementing regulations, protecting residential utility customers, including those receiving

water service. Id. ¶¶ 47–48. HEFPA regulations—enforced by the New York State Public

Service Commission—prohibit water shutoffs in households where a medical emergency exists,

as certified by a doctor or health board. Id. ¶¶ 47, 51. These protections also extend to residents

who are elderly, blind, disabled, or minors. Id. ¶¶ 50–55. In such cases, water utilities must take

proactive steps to avoid termination, including offering payment plans without downpayments;

limiting back-billing collection to 12 months of missed payments; involving social services; and

continuing service for a specified period after notification. Id. ¶¶ 55–59. The Water Board’s

regulation, titled “The Discontinuance of Water Supply and/or Sewer Service Because of

Nonpayment,” or “Regulation 2,” mirrors the HEFPA protections. Id. ¶¶ 60–61. It requires a

renewable 30-day pause on shutoffs for medically vulnerable residents and mandates contact

with an adult resident, referral to the City’s Human Resources Administration if needed, and a

20-day continuation of service for protected households (including those with elderly, disabled,

or minor residents). Id. ¶ 61. Regulation 2 also mandates that termination notices clearly

summarize applicable exemptions and procedures for resolving disputes before service is shut

off. Id. ¶¶ 62–63.6

As part of their 2024 water debt collection plan, Defendants sent pre-termination notices

to Plaintiffs’ households, threatening imminent water shutoffs. Id. ¶¶ 66–67, 94, 117, 141, 160,

195. These notices contain the following provision: “You may be eligible to stop the water shut

off if you have a significant medical condition, are disabled, or have children under 6 years of

age living in the household. To claim an eligible exemption or enter into a payment agreement

contact DEP’s Collection Unit at 718-595-7890 Monday to Friday from 9AM and 5PM.” Id.

However, Plaintiffs allege that the notices did “not provide further information regarding how to

prove one’s entitlement to these exemptions or protections, nor even meaningful information as

to what the grounds for exemption or protection are,” nor did they “provide a complete

description of detailed procedures to submit a complaint and have that complaint considered

prior to service termination.” Id. ¶¶ 68–69. Plaintiffs further allege that Defendants proceed

with terminations despite being notified of exemptions, fail to offer affordable payment plans

without downpayments, neglect to involve social services, and engage in improper back-billing

while withholding information about legal protections and providing misleading guidance to

residents seeking help. Id. ¶¶ 70–75.

All Plaintiffs received some notice from Defendants that they were delinquent on their

water bills and threatening to shut off their water. Id. ¶¶ 66–67, 94, 117, 141, 160, 195. Since

then, all Plaintiffs have qualified for a medical or age exemption. See ECF No. 25 (Defs.’ Suppl.

6 The Court discusses HEFPA and Regulation 2 solely to provide context for Plaintiffs’

allegations. Neither framework is material to the Court’s legal analysis of Plaintiffs’ federal

claims. Defendants do not dispute that Regulation 2 sets forth the procedures governing

termination of water service due to nonpayment. See ECF No. 19 at 3 (“Water Board Regulation

2 . . . sets forth the process by which water supply may be discontinued for nonpayment.”).

Letter); see also ECF No. 27 (Status Letter).7 No Plaintiff alleges that their water was shut off.

ECF No. 1.

PROCEDURAL HISTORY

Plaintiffs initiated this action on July 24, 2024. ECF No. 1. On July 25, 2024, Plaintiffs

moved for a temporary restraining order (“TRO”) and a preliminary injunction (“PI”) seeking an

order requiring Defendants to maintain water service at the residences of Plaintiffs Mendoza-

Lebron, Oliphant, and Hamlin-McLeod. ECF No. 2. The next day, the Court granted the TRO

and ordered that Defendants show cause why a PI should not issue. ECF No. 9. After the Court

granted three extensions, see July 29, 2024, August 6, 2024, September 6, 2024, Text Orders, on

September 26, 2025, the parties resolved the PI motion by stipulating that water would not be

shut off at any of Plaintiffs’ residences during the pendency of this litigation except for Plaintiff

Hamlin-McLeod, ECF No. 15. The parties further stipulated that “the exemption eligibility for

[P]laintiff Hamlin-McLeod . . . expires on June 21, 2025, when the resident youngest family

member reaches the age of six years old” but that Defendants “will consider additional evidence

of exemption eligibility for [P]laintiff Hamlin-McLeod if such is submitted.” Id. at 2.

On November 22, 2024, Defendants filed their motion to dismiss, raising, inter alia, a

mootness challenge. ECF No. 19. On December 30, 2024, Plaintiffs filed their opposition with

no request for leave to amend. ECF No. 21. On January 14, 2025, Defendants filed their reply

in support of the motion to dismiss. ECF No. 22. Expressing concern that the parties did not

adequately brief the mootness issue, the Court ordered Defendants “to provide an update with

respect to each named Plaintiff and advance any additional arguments with respect to mootness”

7 “In resolving a motion to dismiss for lack of subject-matter jurisdiction under Rule

12(b)(1), a district court . . . may refer to evidence outside the pleadings.” Makarova v. United

States, 201 F.3d 110, 113 (2d Cir. 2000).

and Plaintiffs to file a response. See June 2, 2025, Text Order. On June 10, 2025, Defendants

filed a supplemental letter supplying updates on each Plaintiff’s exemption status and further

briefing the mootness issue. ECF No. 25. On June 16, 2025, Plaintiffs filed their response. ECF

No. 26 (Pls.’ Suppl. Letter). Finally, on June 20, 2025, Defendants filed a letter stating that they

had determined, as of June 18, 2025, that Plaintiff Hamlin-McLeod qualified for “a medical

exemption from having water and wastewater services shut off for nonpayment.” ECF No. 27.

LEGAL STANDARDS

A. Rule 12(b)(1)

Because Defendants challenge subject-matter jurisdiction, the Court “consider[s] the Rule

12(b)(1) challenge first” because if the Court finds that it lacks subject-matter jurisdiction, then

the Defendants’ other “defenses and objections become moot and do not need to be determined.”

Daly v. Citigroup Inc., 939 F.3d 415, 426 (2d Cir. 2019). “A district court properly dismisses an

action under [Rule 12(b)(1)] for lack of subject-matter jurisdiction if the court lacks the statutory

or constitutional power to adjudicate it, such as when . . . the plaintiff lacks constitutional

standing to bring the action.” Cortlandt St. Recovery Corp. v. Hellas Telecomms. S.à.r.l., 790

F.3d 411, 416–17 (2d Cir. 2015). Dismissal under Rule 12(b)(1) is also proper “when a case

becomes moot.” See Doyle v. Midland Credit Mgmt., Inc., 722 F.3d 78, 80 (2d Cir. 2013).

These limitations are derived from Article III of the Constitution, which cabins the federal

courts’ jurisdiction to deciding live cases or controversies. U.S. Const. art. III, § 2, cl. 1. In

essence, Article III requires that “the dispute before the court must be real and live, not feigned,

academic, or conjectural.” Russman v. Bd. of Educ., 260 F.3d 114, 118 (2d Cir. 2001).

“A plaintiff asserting subject-matter jurisdiction must prove by a preponderance of the

evidence that it exists.” Makarova, 201 F.3d at 113. In considering a motion to dismiss for lack

of subject-matter jurisdiction, a “district court must take all uncontroverted facts in the

complaint . . . as true, and draw all reasonable inferences in favor of the party asserting

jurisdiction.” Tandon v. Captain’s Cove Marina of Bridgeport, Inc., 752 F.3d 239, 243 (2d Cir.

2014).

B. Rule 12(b)(6)

“To survive a motion to dismiss under Rule 12(b)(6), the complaint must plead ‘enough

facts to state a claim to relief that is plausible on its face.’” Johnson v. Mount Sinai Hosp. Grp.,

No. 23-466, 2024 WL 3289475, at *1 (2d Cir. July 3, 2024) (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 570 (2007)). “A claim is 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.’” Matson v. Bd. of Educ., 631 F.3d 57, 63 (2d Cir. 2011) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). Although all allegations contained in the complaint are assumed to be

true, this tenet is “inapplicable to legal conclusions.” Iqbal, 556 U.S. at 678.

DISCUSSION

In brief, Plaintiffs seek the following relief: a declaratory judgment that Defendants

violate, inter alia, the Fourteenth Amendment by failing to provide meaningful notice of water

shutoff exemptions; an injunction prohibiting water shutoffs while due process and other legal

obligations are unmet; damages for “emotional distress and pecuniary harm”; and attorney’s fees

and costs. ECF No. 1 at 51–52. For this analysis, the Court separates these forms of relief into

two categories: forward-looking relief and backward-looking relief. The declaratory and

injunctive relief Plaintiffs seek are forward-looking, while damages for past harm are inherently

backward-looking. As discussed below, the Court finds that because Plaintiffs qualify for

exemptions to the termination of water services, Plaintiffs’ forward-looking federal claims are

moot, Plaintiffs’ backward-looking federal claims fail on the merits, and the Court declines to

exercise supplemental jurisdiction as to Plaintiffs’ state and local claims.

I. The Claims for Injunctive and Declaratory Relief Are Moot

“Article III demands that an actual controversy persist throughout all stages of litigation.”

Hollingsworth v. Perry, 570 U.S. 693, 705 (2013). “[T]he doctrine of mootness . . . addresses

whether an intervening circumstance has deprived the plaintiff of a personal stake in the outcome

of the lawsuit.” West Virginia v. EPA, 597 U.S. 697, 719 (2022). Defendants, not Plaintiffs,

bear the “burden to establish that a once-live case has become moot.” Id. “The parties must

retain a continued personal stake in the outcome . . . leaving [the Court] to resolve only real and

substantial controversies admitting of specific relief rather than issue decisions advising what the

law would be upon a hypothetical state of facts.” Exxon Mobil Corp. v. Healey, 28 F.4th 383,

392 (2d Cir. 2022). “A moot action therefore must be dismissed, even if the case was live at the

outset but later events rendered it moot . . . .” Id. “A live controversy remains as long as a court

can fashion some form of meaningful relief to award the complaining party, and even the

availability of a possible remedy is sufficient to prevent a case from being moot.” Id.

Defendants argue that the “[i]njunctive and declaratory judgment claims brought by

Plaintiffs . . . are moot” because “[e]ach household has been granted an exemption based on

either age or a medical condition [and] no Plaintiff’s water and wastewater services were shut off

or are likely to be shut off as long as the qualifying medical or age-related conditions remain in

effect.” ECF No. 25 at 3. While Plaintiffs assert that their claims are not moot, they do so by

invoking exceptions to the mootness doctrine without first addressing whether their claims are, in

fact, moot. See ECF No. 21 at 15–16. This misapprehends the threshold inquiry. The central

question is whether Plaintiffs continue to face a live controversy. On that point, Plaintiffs do not

dispute that each household has received an exemption from water shutoffs. This undisputed

fact renders their claims for injunctive and declaratory relief moot. Plaintiffs nevertheless argue

that the need to periodically recertify their eligibility for an exemption, coupled with alleged

defects in Defendants’ exemption process, brings their claims within two exceptions to the

mootness doctrine. See ECF No. 26 at 1.

In resisting Defendants’ mootness argument, Plaintiffs invoke both the “voluntary

cessation” and the “capable of repetition, yet evading review” exceptions to mootness. Id. at 2–

3. “Generally, the voluntary cessation of allegedly illegal conduct is not enough to render a case

moot.” Exxon, 28 F.4th at 395. Otherwise, a defendant might “strategically alter its conduct in

order to prevent or undo a ruling adverse to its interest.” E.I. Dupont de Nemours & Co. v.

Invista B.V., 473 F.3d 44, 47 (2d Cir. 2006). Nevertheless, a case involving such voluntary

cessation may be moot where “there is no reasonable expectation” of the alleged violation’s

recurrence, and interim events have “completely and irrevocably eradicated the effects of the

alleged violation.” Cnty. of Los Angeles v. Davis, 440 U.S. 625, 631 (1979). For the capable of

repetition, yet evading review exception to apply, a party must show that “(1) the challenged

action [i]s in duration too short to be fully litigated prior to its cessation or expiration, and

(2) there [i]s a reasonable expectation that the same complaining party w[ill] be subjected to the

same action again.” Irish Lesbian & Gay Org. v. Giuliani, 143 F.3d 638, 647–48 (2d Cir. 1998).

“This facet of the mootness doctrine is applicable only in exceptional situations.” Exxon, 28

F.4th at 395.

As to the voluntary cessation doctrine, Defendants argue that it “not applicable here since

there is no reasonable expectation of the allegedly unlawful activity resuming while these

households remain qualified for exemptions.” ECF No. 25 at 4. Plaintiffs contend that “[w]hile

the Defendants may have amended the Water Board Regulation 2 governing water and sewer

service termination, these amendments are not permanent, could be repealed, and in any event do

not ensure that the Defendants have resolved the significant due process violations that deprived

Plaintiffs of access to necessary services to which they are entitled.” ECF No. 26 at 3. As to the

capable of repetition, yet evading review doctrine, Plaintiffs argue that because they will be

“required to periodically recertify their entitlement to an exemption from water shut-off,” their

exposure to Defendants’ alleged due process violations is “certain of repetition.” ECF No. 26

at 2.

The Court finds that both exceptions are inapplicable here because there is no

“reasonable expectation that the conduct at issue in the present suit will recur.” See Exxon, 28

F.4th at 395–96 (finding that without a reasonable expectation of recurrence, neither the

voluntary cessation nor the capable-of-repetition exceptions to mootness apply). Here, there is

no “reasonable expectation” that Plaintiffs will again be subjected to the alleged unlawful

conduct—water shutoff threats without meaningful notice or accommodation—because each

Plaintiff has now qualified for an exemption under the City’s existing policies, and the

protections afforded by Regulation 2 and HEFPA remain in place and operative. See ECF

Nos. 25, 27. The City has not merely promised to refrain from future shutoffs, it has

affirmatively granted exemptions to every Plaintiff based on established criteria (i.e., age,

disability, or medical condition). See id. These exemptions are renewable and tied to durable

characteristics (i.e., chronic illness or age), and Plaintiffs have not plausibly alleged any intent by

Defendants to arbitrarily revoke or deny exemptions in the future. See Scott v. Fields, No. 20-cv-

810, 2020 WL 7080333, at *2 (S.D.N.Y. Dec. 3, 2020) (“Courts generally do not apply the

exception where the action ‘capable of repetition’ requires future violations of the law.”). The

mere possibility that Plaintiffs may, at some future date, fail to re-certify or submit

documentation in support of a requested exemption does not create a live controversy or a

reasonable expectation of recurrence. See Meadors v. Erie Cnty. Bd. of Elections, No. 23-1054,

2024 WL 3548729, at *2 (2d Cir. July 26, 2024) (“Mere speculation that the parties will be

involved in a dispute over the same issue does not rise to the level of a reasonable expectation or

demonstrated probability of recurrence.”).8

As to Plaintiffs’ arguments regarding Defendants’ amendments to Regulation 2, their

arguments are self-defeating. Plaintiffs do not contend that the regulatory framework itself is

legally inadequate or facially unconstitutional. Instead, they assert that the City violated both the

original and amended versions of Regulation 2 by denying exemptions or conditioning them on

improper payments. See ECF No. 1 ¶¶ 76–205; ECF No. 26 at 2–3. In other words, Plaintiffs

acknowledge that the City’s own policies—both before and after amendment—expressly

provided the protections they now claim were denied to them. That framing fatally undermines

their assertion that the alleged violations are likely to recur. If Plaintiffs’ alleged injuries

stemmed from noncompliance with valid regulations, rather than from the absence of adequate

protections, then there is no reasonable basis to expect future injury so long as the City continues

8 Plaintiffs also reference a non-party homeowner who allegedly experienced a shutoff

despite being elderly, blind, and wheelchair-bound. See ECF No. 26 at 3. However, far from

supporting Plaintiffs’ position, this example underscores the mootness of their injunctive and

declaratory judgment claims. The cited incident involves a third party, not a named Plaintiff, and

does not suggest any likelihood that these Plaintiffs will again face unlawful termination.

Plaintiffs cannot revive moot claims by invoking the alleged experiences of others. See In re

Bernard L. Madoff Inv. Sec. LLC., 721 F.3d 54, 58 (2d Cir. 2013) (“A party must assert his own

legal rights and interests, and cannot rest his claim to relief on the legal rights or interests of third

parties.”).

to apply its existing rules in good faith. See Exxon, 28 F.4th at 395–96 (exceptions to mootness

do not apply where the risk of recurrence is purely speculative).

Nor does the absence of a formalized medical exemption application process require that

Plaintiffs’ claims be sustained. Plaintiffs do not allege that they were denied exemptions for

failing to comply with unclear or unpublished procedures, nor that they would be unable to

comply with future requirements. On the contrary, the record shows that every Plaintiff has

since qualified for and actually received an exemption under the current framework. See ECF

Nos. 25, 27. Plaintiffs cannot maintain a live controversy based on the hypothetical risk that, at

some future point, Defendants might fail to properly implement a policy that already affords the

protections Plaintiffs claim they were due. See Knaust v. City of Kingston, 157 F.3d 86, 88 (2d

Cir. 1998) (“Nor will it suffice to hypothesize the possibility that at some future time, under

circumstances that could only be guessed at now, the parties could theoretically become

embroiled in a like controversy once again.”). Accordingly, the voluntary cessation and capable-

of-repetition exceptions do not apply, and Plaintiffs’ declaratory judgment and injunctive relief

claims are moot and dismissed without prejudice.9

9 Plaintiffs Mendoza-Lebron and Mendoza further argue that their claims are not moot

because they “allege an additional due process violation” in the form of allegedly improper

“backbilling” in violation of New York regulations. See ECF No. 26 at 3–4. The Court agrees

that the backbilling issue is live but one live issue does not render all otherwise moot claims live.

Cf. TransUnion LLC v. Ramirez, 594 U.S. 413, 431 (2021) (“[S]tanding is not dispensed in

gross; rather, plaintiffs must demonstrate standing for each claim that they press and for each

form of relief that they seek.”). The Court addresses below why the backbilling claim fails on

the merits. See infra n.11.

II. The Damages Claims Fail on the Merits

Although the Court finds Plaintiffs’ declaratory judgment and injunctive relief claims to

be moot, Plaintiffs’ claims for damages are not moot.10 See Farquharson v. Lafayette, No. 19-

cv-3446, 2020 WL 1699985, at *4 (S.D.N.Y. Apr. 7, 2020) (“[T]he Court concludes that,

although [p]laintiff’s claims for injunctive and declaratory relief have been mooted[,] . . . her

claims are not moot to the extent she seeks damages for Defendants’ alleged constitutional

violations.”). Therefore, the Court proceeds to analyze the merits of Plaintiffs’ damages claims.

A. Due Process Claims

Plaintiffs argue that Defendants’ threats to shut off their water and sewage services

constitute violations of their Fourteenth Amendment rights to procedural due process. See ECF

No. 21 at 11–17. They claim damages under Section 1983, including “emotional distress”

resulting from “Defendants’ acts and omissions.” ECF No. 1 ¶¶ 213, 224, 229. The Due Process

Clause of the Fourteenth Amendment provides that no state shall “deprive any person of life,

liberty or property, without due process of law.” To state a due process claim, “a plaintiff must

first identify a property right, second show that the state has deprived him or her of that right,

and third show that the deprivation was effected without due process.” Progressive Credit

Union v. City of New York, 889 F.3d 40, 51 (2d Cir. 2018).

Even accepting Plaintiffs’ assertions that “[a]ccess to continued water service is a

property interest” protected by the Fourteenth Amendment, ECF No. 21 at 12, and “that the

Constitution requires that the government provide pre-deprivation process”, id. at 14, Plaintiffs

still fail to satisfy the second prong set forth in Progressive Credit Union, 899 F.3d at 51. Here,

10 On this point, the parties agree. See ECF No. 25 at 5 (“Defendants recognize . . . that a

claim for damages is not itself moot even if declaratory judgment and injunctive relief claims in

the Complaint are found to be moot.”); ECF No. 26 at 4 (same).

Plaintiffs fail to state a procedural due process claim because they do not allege that the

Defendants deprived them of a property interest. See Kerry v. Din, 576 U.S. 86, 90 (2015)

(“Although the amount and quality of process that our precedents have recognized as ‘due’ under

the Clause has changed considerably since the founding, it remains the case that no process is

due if one is not deprived of life, liberty, or property.”).11

Plaintiffs allege that Defendants threatened to terminate their water service, but no

Plaintiff alleges that their water service was actually turned off. See generally ECF No. 1. A

mere threat, without an actual termination of service, does not constitute a deprivation. See

Pisman v. Zucker, No. 17-cv-7210, 2019 WL 181313, at *7 (E.D.N.Y. Jan. 10, 2019)

(“[T]hreats . . . are not sufficient to meet the deprivation requirement of procedural due

process.”); see also O’Connor v. Pierson, 426 F.3d 187, 196–200 (2d Cir. 2005) (finding no due

process violation where plaintiff was placed on paid sick leave and required to undergo

psychiatric evaluation because no meaningful deprivation of property occurred until paid leave

ended). Because no Plaintiff was actually deprived of water service, and because Plaintiffs do

not plausibly allege that the threat alone caused a constitutionally cognizable injury, they have

failed to state a due process claim.12

11 Plaintiffs further allege “an additional due process violation” arising out of Defendants

“inappropriate backbilling” in violation of New York regulations. See ECF No. 26 at 3–4; ECF

No. 1 ¶¶ 83–85, 92, 104. “Even if the [P]laintiffs established violations of state or municipal

law, it is well established that a violation of state law does not per se result in a violation of the

Due Process Clause.” Garland v. N.Y.C. Fire Dep’t, No. 23-663, 2024 WL 445001, at *3 (2d

Cir. Feb. 6, 2024). Plaintiffs do not allege that they were denied an opportunity to challenge the

billing, or that the backbilled charges led to a shutoff, lien, or other deprivation of property.

Without more, the ongoing billing dispute, to the extent there is one, does not raise a cognizable

due process claim. See Kerry, 576 U.S. at 90 (“[N]o process is due if one is not deprived of life,

liberty, or property.”).

12 If the Court construed the Complaint as alleging that Plaintiffs suffered a violation of

their procedural due process rights simply through the receipt of insufficient notice regarding the

water shutoffs, see ECF No. 1 ¶¶ 220–24; ECF No. 21 at 14–17, their failure to allege a

B. ADA and FHA Claims

Plaintiffs’ ADA and FHA claims similarly fail. The ADA mandates “no qualified

individual with a disability shall, by reason of such disability, be excluded from participation in

or be denied the benefits of the services, programs, or activities of a public entity, or be subjected

to discrimination by any such entity.” 42 U.S.C. § 12132. Similarly, the FHA prohibits

“discriminat[ion] against any person in the . . . provision of services or facilities in connection

with [a] dwelling, because of a handicap of (A) that person; or (B) a person residing in . . . that

dwelling; or (C) any person associated with that person.” Id. § 3604(f)(2). “To assert a claim

under Title II of the ADA . . . a plaintiff must demonstrate that (1) he is a qualified individual

with a disability; (2) the defendant is subject to one of the Acts; and (3) he was denied the

opportunity to participate in or benefit from the defendant’s services, programs, or activities, or

was otherwise discriminated against by the defendant because of his disability.” McElwee v.

Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012). To state a reasonable accommodation claim

under the FHA, a plaintiff must allege that: (1) she had a disability; (2) the defendant knew of or

should have known of the disability; (3) the requested accommodation “was likely necessary to

afford the [disabled] person an equal opportunity to use and enjoy the dwelling”; (4) the

“accommodation requested was reasonable”; and (5) “the defendant refused to make the

requested accommodation.” See Olsen v. Stark Homes, Inc., 759 F.3d 140, 156 (2d Cir. 2014).

Because the reasonable accommodation standards adopted by the two statutes are nearly

deprivation would still doom their claims. As the Supreme Court has made clear, “notice and an

opportunity to be heard are the vehicles which must be used to protect pre-existing rights: they

are not rights in and of themselves.” Cassidy v. Scoppetta, 365 F. Supp. 2d 283, 287 (E.D.N.Y.

2005) (emphasis in original) (citing Cleveland Bd. of Educ. v. Loudermill, 470 U.S. 532, 541

(1985)).

identical, the Court considers the merits of these claims together. Pinckney v. Carroll, No. 18-

cv-12198, 2019 WL 6619484, at *6 (S.D.N.Y. Dec. 4, 2019).

On this point, the Complaint is not a model of clarity. Plaintiffs allege that “Defendants

have failed to reasonably accommodate Plaintiffs by concealing the significant medical

exception category and depriving them of meaningful access to a reasonable accommodation” in

violation of the ADA and FHA. ECF No. 1 ¶¶ 261, 272. To the extent Plaintiffs contend that

the reasonable accommodation they were denied was accurate information regarding the

availability of exemptions and the procedures for applying for them, that theory is not cognizable

under either statute. Neither the ADA nor the FHA requires public entities to proactively

provide detailed guidance about every benefit or exemption that might be available; rather, they

prohibit discrimination “because of . . . disability.” See McElwee, 700 F.3d at 640. Alleged

confusion about how to access an accommodation—without more—is insufficient to state a

claim.

To the extent Plaintiffs allege that the reasonable accommodation they were denied was

the exemption itself, that theory also fails. As alleged in the Complaint, no Plaintiff’s water was

shut off. See generally ECF No. 1. Additionally, all Plaintiffs received the following notice:

“You may be eligible to stop the water shut off if you have a significant medical condition, are

62 years of age or older, disabled, or have children under 6 years of age living in the household.”

Id. ¶¶ 96, 119, 143, 162, 197. As Defendants note:

[t]he actions described in the [C]omplaint—a utility taking enforcement action to

collect unpaid bills by sending notices warning of pending shut off of water and

wastewater services to owners, some of whom, unbeknownst to the Water Board,

have individuals in their household with certain medical conditions or who meet

certain age criteria, followed by [P]laintiffs’ initially unsuccessful attempts to apply

for exemptions that the Water Board offers—simply do not amount to a public

entity denying benefits to any of the [P]laintiffs by reason of such disability or

subjecting them to discrimination by reason of such disability.

ECF No. 19 at 19. The Court agrees. Nowhere in the Complaint do Plaintiffs allege that they

were treated differently as a result of their disabilities. See generally ECF No. 1.

Plaintiffs rely on Henrietta D. v. Bloomberg, 331 F.3d 261, 274–75 (2d Cir. 2003) for the

proposition that the ADA “requires affirmative accommodations to ensure that facially neutral

rules do not in practice discriminate against individuals with disabilities.” ECF No. 21 at 24.

However, “[t]he fact that Plaintiff[s] advance[] a reasonable accommodation claim thus does not

eliminate the requirement that [they] show that any denial of treatment was due to [their]

disability.” Tardif v. City of New York, No. 13-cv-4056, 2017 WL 3634612, at *3 (S.D.N.Y.

Aug. 23, 2017). Indeed, Henrietta D. makes clear that in order to allege a violation of the ADA

on a reasonable accommodation theory, “there must be something different about the way the

plaintiff is treated by reason of disability.” 331 F.3d at 276. The Complaint lacks such an

allegation. Furthermore, none of the Plaintiffs alleges that their water was shut off. See

generally ECF No. 1. If anything, the Complaint shows that Defendants affirmatively

accommodate homeowners with disabilities by creating exemptions to water shutoffs specifically

because of their disabilities; the Complaint suggests that a similarly situated homeowner who

failed to pay her water bill but lacked an exemption-qualifying disability would have lost water

service. See id. ¶ 5 (“[Plaintiffs] are eligible for a full statutory exemption from any potential

water shut-off”); ¶ 26 (“Vulnerable individuals who qualify for these exemptions are often

unable to pay ongoing water bills for the very reason that they are eligible for the exemption:

most have disabilities . . . .”).

Even under a disparate impact theory, Plaintiffs must allege that the challenged policy

denied them meaningful access to water services because of their disabilities. See Wright v. N.Y.

Dep’t of Corrs., 831 F.3d 64, 72 (2d Cir. 2016) (“In examining [an ADA] claim, we ask whether

a plaintiff with disabilities as a practical matter was denied meaningful access to services,

programs or activities to which he or she was legally entitled.”). Here, while Plaintiffs allege

deficiencies in the notice and exemption process, they do not plausibly allege that these

deficiencies disproportionately burdened them as individuals with disabilities, or that Defendants

refused to reasonably accommodate their needs once eligibility was demonstrated. Because

Plaintiffs have not alleged that they “were denied the opportunity to participate in or benefit from

defendants’ services, programs, or activities, or were otherwise discriminated against by

defendants, by reason of plaintiffs’ disabilities,” their ADA claims are dismissed with prejudice.

Henrietta D., 331 F.3d at 272. Similarly, because Plaintiffs have not alleged that Defendants

“refused to make the requested accommodation,” their FHA claims are dismissed with prejudice.

Olsen, 759 F.3d at 156.13

III. The Court Will Not Exercise Supplemental Jurisdiction

Plaintiffs also bring claims alleging violations of the City’s Administrative Procedure Act

(“CAPA”), the New York Constitution, New York State Human Rights Law, and New York City

Human Rights Law. See ECF No. 1 ¶¶ 230–249, 274–83. As a threshold matter, Defendants

urge the Court not to exercise supplemental jurisdiction over these claims in light of the

dismissal of Plaintiffs’ claims under Section 1983, ADA, and FHA. See ECF No. 19 at 21. The

only two bases for subject-matter jurisdiction in this case are federal-question jurisdiction under

28 U.S.C. § 1331 and supplemental jurisdiction under 28 U.S.C. § 1367. See ECF No. 1 ¶¶ 7–8.

Accordingly, the state and local law claims depend on the Court’s exercise of supplemental

jurisdiction. Pursuant to 28 U.S.C. § 1367(c)(3), the Court “may decline to exercise

13 Defendants argue that Plaintiffs “have not alleged with any specificity that they have a

disability pursuant to the ADA” or “handicap pursuant to the FHA.” ECF No. 19 at 17–18.

Although potentially meritorious, the Court need not reach this argument having dismissed the

ADA and FHA claims on other grounds.

supplemental jurisdiction if,” as here, “it has dismissed all claims over which it has original

jurisdiction.” Kolari v. N.Y.-Presbyterian Hosp., 455 F.3d 118, 122 (2d Cir. 2006). Ordinarily, a

court’s resolution of all the claims over which it has original jurisdiction before trial “generally

points to declining to exercise supplemental jurisdiction” over any remaining claims. Catzin v.

Thank You & Good Luck Corp., 899 F.3d 77, 86 (2d Cir. 2018). In considering the “traditional

values of judicial economy, convenience, fairness, and comity,” the Court declines to exercise

supplemental jurisdiction in this case. See Kolari, 455 F.3d at 122. First, the case is still in its

early stages as this is the first dispositive motion brought by the parties. Second, the parties have

not engaged in discovery. Third, the vehicle for their CAPA claim is an Article 78 proceeding in

New York State court. See, e.g., Uber Techs., Inc. v. N.Y.C. Dep’t of Consumer & Worker Prot.,

196 N.Y.S.3d 911 (N.Y. Sup. Ct. 2023). But Article 78 review is outside of this Court’s subject-

matter jurisdiction, so “exercising supplemental jurisdiction would needlessly fracture this case

between the two court systems.” Golds v. City of New York, No. 25-cv-03587, 2025 WL

1895233, at *7 (E.D.N.Y. July 8, 2025). Accordingly, the Court dismisses Plaintiffs’ state and

local law claims without prejudice.

* * *

CONCLUSION

For the reasons discussed above, Defendants’ motion to dismiss is GRANTED. See ECF

No. 19. Plaintiffs’ declaratory and injunctive relief claims are moot and dismissed without

prejudice. Plaintiffs’ federal damages claims under Section 1983, the ADA, and the FHA are

dismissed with prejudice. As to Plaintiffs’ state and local law claims, the Court declines to

exercise supplemental jurisdiction, and dismisses these claims without prejudice. The Clerk of

Court is respectfully directed to enter judgment consistent with this Order and close this case.

SO ORDERED.

/s/ Hector Gonzalez

HECTOR GONZALEZ

United States District Judge

Dated: Brooklyn, New York

July 11, 2025