The opinion
UNITED STATES DISTRICT COURT .
SOUTHERN DISTRICT OF NEW YORK
ALTAUNE BROWN,
Plaintiff,
-v- 24 Civ. 8114 (PAE) (HJR)
LAY WIN HERBAL, INC. ef al., OPINION & ORDER
Defendants.
PAUL A. ENGELMAYER, District Judge:
Plaintiff Altaune Brown brings this action against defendants Lay Win Herbal, Inc. (“Lay
Win”) and Sun Wai Realty, Inc., alleging that their Chinese medicine clinic, which offers herbal
remedies and acupuncture services, is inaccessible to Brown—a paraplegic who uses a
wheelchair. Dkt. 16 (the “First Amended Complaint” or “FAC”) §{ 6, 15-18. Brown claims
violations of Title II] of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12182(a) et
seq., plus New York State and City laws, and seeks declaratory and injunctive relief, damages,
and attorneys’ fees, costs, and expenses. Jd. J] 23-70.
On April 17, 2025, Lay Win moved to dismiss the First Amended Complaint under
Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), supported by a declaration from counsel.
Dkts. 26-28. On May 23, 2025, Brown filed his opposition, supported by declarations from
himself and his counsel. Dkts. 32-34. On June 23, 2025, Lay Win replied, supported by
additional declarations. Dkts. 38—40.
Before the Court is the November 24, 2025 Report and Recommendation of the
Honorable Henry J. Ricardo, United States Magistrate Judge. Dkt. 46 (“Report”). It
recommends denial of the motion to dismiss because the First Amended Complaint adequately
alleges that Brown has standing to bring a claim under the ADA.! No party has objected or
otherwise responded to the Report.
For the following reasons, the Court adopts the Report in full.
DISCUSSION
In reviewing a Report and Recommendation, a district court “may accept, reject, or
modify, in whole or in part, the findings or recommendations made by the magistrate judge.” 28
U.S.C. § 636(b)(1)(C). “To accept those portions of the report to which no timely objection has
been made, a district court need only satisfy itself that there is no clear error on the face of the
record.” Ruiz v. Citibank, N.A., No. 10 Civ. 5950, 2014 WL 4635575, at *2 (S.D.N.Y. Aug. 19,
2014) (quoting King v. Greiner, No. 2 Civ. 5810, 2009 WL 2001439, at *4 (S.D.N.Y. July 8,
2009)); see also Wilds y. United Parcel Serv., Inc., 262 F. Supp. 2d 163, 169 (S.D.N.Y. 2003).
As no party has submitted objections to the Report, review for clear error is appropriate.
Careful review of Judge Ricardo’s thorough and well-reasoned Report reveals no facial error in
its conclusions; the Report is therefore adopted in its entirety. Because the Report explicitly
states that failure to object within 14 days “will result in a waiver of objections and will preclude
appellate review,” Report at 19-20, defendants’ failure to object operates as a waiver of appellate
review, see Caidor v. Onondaga Cnty., 517 F.3d 601, 604 (2d Cir. 2008) (citing Small v. Sec’y of
Health & Human Servs., 892 F.2d 15, 16 (2d Cir. 1989) (per curiam)).
' Because the motion to dismiss solely argues that Brown lacks standing to sue, “the proper
vehicle for the motion is Rule 12(b)(1), not Rule 12(b)(6).” See Report at 4 (citing All. For Env’t
Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006)).
CONCLUSION
For the foregoing reasons, the Court accepts and adopts Judge Ricardo’s Report in its
entirety. The Court denies the motion to dismiss and respectfully directs the Clerk of Court to
terminate the motion at docket 26.
SO ORDERED. Of “1 nal
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Paul A. Engelmayer
United States District Judge
Dated: December 15, 2025
New York, New York