Fletcher

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF NEW YORK

WENDY FLETCHER and JAMES HUGHES,

Plaintiffs,

-vV- 8:22-CV-314

(DJS)

VILLAGE OF LAKE PLACID,

Defendant.

APPEARANCES: OF COUNSEL:

WOJDAN-PRICE LAW JENNA M. WOJDAN-PRICE, ESQ.

Attorney for Plaintiffs

135 Delaware Avenue, Suite 406

Buffalo, New York 14202

“| RUPP PFALZGRAF LLC R. ANTHONY RUPP, II, ESQ.

Attorney for Plaintiffs JONATHAN P. CANTIL, ESQ.

1600 Liberty Building MATTHEW E. GABALSKI, ESQ.

424 Main Street YOUNG WOO KIM, ESQ.

Buffalo, New York 14202 PHILLIP A. OSWALD, ESQ.

THE LAWS GROUP PLLC APRIL J. LAWS, ESQ.

Attorney for Defendant DEANNA R. GIROUX, ESQ.

646 Plank Road, Suite 205

Clifton Park, New York 12065

«| DANIEL J. STEWART

United States Magistrate Judge

MEMORANDUM-DECISION AND ORDER!

I. BACKGROUND

Wendy Fletcher and James Hughes commenced this action against the Village of

Lake Placid as well as numerous individual and corporate Defendants in a Complaint

y| originally filed in April 2022. Dkt. No. 1. An Amended Complaint was filed in March

2023, Dkt. No. 60, Am. Compl., and is the operative pleading. Motions to dismiss

resulted in the dismissal of the vast majority of claims and parties from this litigation.

Fletcher vy. Vill. of Lake Placid, 2023 WL 8573860, at *1 (N.D.N.Y. Dec. 11, 2023)

(“Fletcher I’); Dkt. No. 129. Only two claims remain. Fletcher I, 2023 WL 8573860, at

*25. Both Plaintiffs assert a federal constitutional claim against the Village. Am. Compl.

J§ 255-66. Plaintiff Fletcher also asserts a claim pursuant to Title II of the Americans

with Disabilities Act (“ADA”). Jd. at §§ 240-54.

The parties have each now filed Motions for Summary Judgment. Dkt. Nos. 160

& 162. The Village’s Motion seeks dismissal of both remaining claims and identifies the

following grounds for summary judgment: the failure to join a necessary party, failure to

plead an unconstitutional policy or practice, the merits of the ADA claim, as well as

assertions that Plaintiff Fletcher’s ADA claim is moot and she lacks standing. Dkt. No.

160-23, Def.’s Mem. of Law at pp. 11-24. Plaintiffs oppose the Motion. Dkt. No. 174,

Pls.’ Opp. Defendant filed a reply. Dkt. No. 175, Def.’s Reply.

The parties have consented to have the undersigned address this matter. Dkt. No. 147.

2 The Amended Complaint purports to identify Hughes as a plaintiff with respect to the ADA claim as well. Am.

Compl. at J 240. Any such claim has been dismissed. Fletcher I, 2023 WL 8573860, at *4n.3.

Plaintiffs have also filed a Motion for Summary Judgment seeking judgment in

their favor as to both claims. Dkt. Nos. 162 & 163. Plaintiffs seek judgment on the merits

of each claim. Dkt. No. 162-18, Pls.” Mem. of Law. Defendant opposes the Motion, Dkt.

No. 173, Def.’s Opp., and Plaintiffs replied. Dkt. No. 176, Pls.’ Reply. Upon being

| notified by the Court that their original submissions omitted some documents, Plaintiffs

made an additional submission. Dkt. No. 179.

For the reasons that follow, Defendant’s Motion is granted in part and denied in

part. Plaintiffs’ Motion is denied.

Il. FACTUAL SUMMARY RELEVANT TO DISPOSITION OF THE MOTIONS

Plaintiff Wendy Fletcher is the owner of property at 18 Grace Way (the “Grace

«| Way Property”) in the Village. Dkt. No. 174-1 at 9 56.° Fletcher has been diagnosed

with multiple sclerosis. /d. at § 133. She and Plaintiff James Hughes moved into the

Grace Way Property in 2015. Dkt. No. 160-2, Pl.’s Dep. Vol. 1 at p. 29. That property

includes a home, which is located between Main Street in the Village and Mirror Lake.

See Dkt. No. 174-1 at 99 59, 63-64, & 99. It also includes a foundation from a business

construction project started by Plaintiffs but not completed. Jd. at {63 & 65-67. The

foundation is directly next to Main Street. /d. at 4] 64. There are three permanent points

of ingress and egress from the Grace Way Property: a driveway on Grace Way, a private

road; a staircase going up from the property to Main Street next to the Shea building; and

a similar staircase next to the Northwood School building. See id. at 71-72, 79, 89, 91,

3 Insofar as the parties have admitted statements made in their respective Statements of Material Fact, those

documents may be cited herein in licu of citation to the underlying record.

& 96.* In June 2019, Hughes built stairs (“Hughes stairs”) through the foundation located

on the Grace Way Property as a fourth access point. /d. at 113-16. Plaintiff testified

that those steps were temporary. /d. at J] 110 & 113; Dkt. No. 160-5, Pl.’s Dep. Vol. 2

at p. 38.

In 2019, Craig Randall was the Mayor of the Village. Dkt. No. 160-21, Randall

Decl., § 3. In that capacity, he was also a member of the Village Board. Jd. at 99. At

the time, Art Devlin was the Village’s Deputy Mayor and also a member of the Village

Board. Dkt. No. 160-19, Devlin Dec., 4] 3 & 10. Anita Estling is the Village Clerk and

held that position in the spring of 2019. Dkt. No. 160-20, Estling Decl., ¥ 3.

The Northwood School is a private school in Lake Placid. Am. Compl. at J 26. It

“| purchased property on Main Street, next to the Grace Way Property, and in 2019 sought

to begin renovation work at the site. Dkt. No. 174-1 at {9 69 & 98; Am. Compl. at 4 81.

Previous discussions of proposed work at that location had occurred between Northwood

and Hughes. /d. at 99 119-21. On Friday, March 29, 2019, an official from Northwood

School hand delivered a letter to Estling regarding the School’s intention to begin work

on that property and asking for Village approval of certain aspects of the plan that required

using Main Street to facilitate the project. Dkt. No. 174-1 at 151; Randall Decl. at □ 6;

Dkt. No. 160-1, Laws Decl., Ex. I. In response, Randall directed that a meeting of the

Village Board be scheduled. Dkt. No. 174-1 at § 152; Randall Decl. at § 6; Estling Decl.

at 95. On Tuesday, April 2, 2019, Estling provided notice that a meeting would be held

4 Tn this opinion these routes are sometimes referred to as rights of way (“ROW”) and identified as the Shea ROW

or Northwood ROW.

on Wednesday, April 3, 2019, by posting on the Village’s Facebook page. Dkt. No. 174-

| at 153; Estling Decl. at 9 5; Laws Decl. at Ex. J. Plaintiffs claim they did not receive

notice of the meeting. Am. Compl. at § 116. The meeting was held and the Village Board

voted to approve the plan set forth by the School. Laws Decl. at Ex. K.

During the course of the construction that followed, construction crews walled off

the Northwood ROW, making it inaccessible to Plaintiffs. Dkt. No. 162-1, Wojdan-Price

Decl., Ex. El. Construction barriers were then placed on the sidewalk directly in front of

the Grace Way Property blocking access to the sidewalk. See, e.g., id. at Ex. E4. The

Hughes stairs were built after construction work had begun. Dkt. No. 174-1 at ¥ 114.

During this time construction equipment was often parked in that location and blocked

“| the Hughes stairs and the Northwood ROW. See, e.g., Wojdan-Price Decl. at Ex. E4. It

does not appear that the Shea ROW was ever blocked off by construction work. /d.; Laws

Decl. at Ex. N. A temporary pedestrian walkway was established to divert traffic around

the Northwood construction site. See, e.g., Wojdan-Price Decl. at Ex. E2. For a period

of several months, Fletcher alleges that she was unable to access the sidewalk adjacent to

her property. Dkt. No. 174-1 at ¥ 201.

In 2021 and 2022, the Village undertook a separate infrastructure project that

involved work on Main Street and its adjacent sidewalks. Am. Compl. at § 88-90.

Fletcher was not present in the Village during much of the time in which work was being

conducted on this project and actually rented the Grace Way Property during this time.

Id. at ¥§| 90-91; Pl.’s Dep. Vol. 2 at pp. 15-17; Dkt. No. 174-1 at 9] 73-76. At the

completion of the project, the sidewalk reconstruction created a height differential

between the sidewalk and the Hughes stairs which Plaintiff alleges hinders her ability to

use those stairs. Dkt. No. 174-1 at § 218.

I. LEGAL STANDARD FOR SUMMARY JUDGMENT

Pursuant to Federal Rule of Civil Procedure 56(a), summary judgment is

appropriate only where “there is no genuine dispute as to any material fact and the movant

is entitled to judgment as a matter of law.” The moving party bears the burden to

demonstrate through “pleadings, depositions, answers to interrogatories, and admissions

on file, together with [ ] affidavits, if any,” that there is no genuine issue of material fact.

FDIC. v. Giammettei, 34 F.3d 51, 54 (2d Cir. 1994) (quoting Celotex Corp. v. Catrett,

“1477 U.S. 317, 323 (1986)).

The party seeking summary judgment bears the burden of informing the court of

the basis for the motion and identifying those portions of the record that the moving party

claims will demonstrate the absence of a genuine issue of material fact. Celotex Corp. v.

Catrett, 477 U.S. at 323. To defeat a motion for summary judgment, the non-movant

must set out specific facts showing that there is a genuine issue for trial and cannot rest

merely on allegations or denials of the facts submitted by the movant. FED. R. CIV. P.

56(c); see also Scott v. Coughlin, 344 F.3d 282, 287 (2d Cir. 2003) (“Conclusory

allegations or denials are ordinarily not sufficient to defeat a motion for summary

judgment when the moving party has set out a documentary case.”); Rexnord Holdings,

Inc. v. Bidermann, 21 F.3d 522, 525-26 (2d Cir. 1994).

When considering a motion for summary judgment, the court must resolve all

ambiguities and draw all reasonable inferences in favor of the non-movant. Nora

Beverages, Inc. v. Perrier Group of Am., Inc., 164 F.3d 736, 742 (2d Cir. 1998). “[T]he

trial court’s task at the summary judgment motion stage of the litigation is carefully

limited to discerning whether there are any genuine issues of material fact to be tried, not

to deciding them. Its duty, in short, is confined at this point to issue-finding; it does not

extend to issue-resolution.” Gallo v. Prudential Residential Servs., Ltd. P’ship, 22 F.3d

1219, 1224 (2d Cir. 1994).

IV. DISCUSSION

A. Failure to Join Necessary Parties

Defendant argues first that summary judgment should be granted because of

“Plaintiffs’ failure to join an indispensable party, New York State.” Def.’s Mem. of Law

at p. 12 (emphasis added). Summary judgment 1s not appropriate on this ground.

As to the claim under section 1983, this argument fails for several reasons. New

York State would not be a proper party for a claim under section 1983. Restivo v.

Hessemann, 846 F.3d 547, 583 (2d Cir. 2017) (citing Will v. Mich. Dep’t of State Police,

491 U.S. 58, 71 (1989) (“a state is not a proper defendant in an action brought pursuant

to Section 1983.”)). Joining the State, therefore, would have been futile. Nor is any state

official implicated with respect to the facts of that claim. It involves solely a question of

whether Village officials provided appropriate notice of a Village Board meeting. See

Fletcher I, 2023 WL 8573860, at *5 (discussing nature of Plaintiffs’ due process claim);

Am. Compl at §§]| 171-75. The suggestion in reply that individual Department of

Transportation officials should have been named, Def.’s Reply at p. 2, does nothing to

address that argument. Defendant has simply made no argument to demonstrate a basis

for or necessity of adding any New York State employee as a party to a claim about the

| notice of a Village meeting.

With regard to the ADA claim, the Court is also not persuaded that summary

judgment is warranted. Contrary to Plaintiff's suggestion, Pls.’ Opp. at p. 8, Title □ of

the ADA did serve as a waiver of the State’s sovereign immunity. United States v.

Georgia, 546 U.S. 151, 157-59 (2006). Defendant, however, has made no showing that

the State is a necessary party here. Under the Federal Rules of Civil Procedure, a party

“11s necessary to adjudication of the case if “the court cannot accord complete relief among

existing parties” or providing relief would necessarily seriously impair the rights of the

person or entity not joined. FED. R. CIv. P. 19(a)(1). Defendant places significant

emphasis on the fact that New York’s Department of Transportation “exercised

oversight” over both infrastructure projects at issue here. Def.’s Reply at p. 2. Even

assuming that to be true, however, does not make the State a necessary party. Citizens

Against Casino Gambling in Erie Cnty. v. Kempthorne, 471 F. Supp. 2d 295, 315

(W.D.N.Y. 2007). The Village offers no argument or factual evidence to suggest that full

relief cannot be provided here or that the State’s interests would be impaired by any

judgment rendered here. This matter has been litigated for four years without the

suggestion, to the best of the Court’s knowledge, that a necessary party was missing. The

Village’s current conclusory assertion that necessary parties have not been joined is

insufficient to justify dismissal. Carson v. Kentucky Fried Chicken of Cal., 1997 WL

615240, at *3 (S.D.N.Y. Oct. 3, 1997).

B. Section 1983 Due Process Claim

Plaintiffs allege that their due process rights were violated when the Village failed

to provide the notice required under state law before the April 3 meeting. Am. Compl. at

117. This claim is brought solely against the Village on a theory of municipal liability.

See generally Fletcher I, 2023 WL 8573860, at *25. Defendant is entitled to summary

judgment as to this claim.

In Monell v. Dep’t of Soc. Servs. of City of New York, the Supreme Court

“| recognized that a local municipality, like the Village, can be held liable for violations of

constitutional rights under certain circumstances. 436 U.S. 658, 690-91 (1978). “The

elements of a Monell claim are (1) a municipal policy or custom that (2) causes the

plaintiff to be subjected to (3) the deprivation of a constitutional right.” Agosto v. New

York City Dep’t of Educ., 982 F.3d 86, 97 (2d Cir. 2020) (citing Batista v. Rodriguez, 702

F.2d 393, 397 (2d Cir. 1983)).

Consistent with this rule, a prerequisite to municipal liability is the existence of an

“underlying constitutional violation.” De Asis v. New York City Police Dep’t, 352 F.

App’x 517, 518 (2d Cir. 2009); see also Ameduri v. Vill. of Frankfort, 2014 WL

12894099, at *2 (N.D.N.Y. Nov. 4, 2014) (“There can be no municipal liability under

Monell in the absence of an underlying constitutional violation.”). Neither party raised

the question of whether Plaintiffs had any due process right to notice in advance of the

meeting in their summary judgment papers. Pursuant to FED. R. CIv. P. 56(f), the Court

advised the parties that it was considering granting summary judgment on this ground and

afforded them the opportunity to address the matter. Dkt. No. 184. Plaintiffs and

yy| Defendant have filed supplemental memoranda of law on the issue. Dkt. Nos. 195, Pls.’

Supp. Mem. of Law, & 196. For several reasons, Plaintiffs have no section 1983 claim.

1. Underlying Constitutional Violation

First, Plaintiffs misapply state law and its relevance to their claim. Plaintiffs claim

they were entitled to 72 hours’ notice of the Village Board meeting under New York

Public Officers Law. Am. Compl. at § 117; Pl.’s Mem. of Law at pp. 14-15. The

“| provision on which they rely provides that “[p]ublic notice of the time and place of a

meeting scheduled at least one week prior thereto shall be given or electronically

transmitted to the news media and shall be conspicuously posted in one or more

designated public locations at least seventy-two hours before such meeting.” N.Y. Pub.

Off. Law § 104(1). The record in this case demonstrates that the meeting was not

“scheduled at least one week prior.” Instead, it was scheduled for Wednesday, April 3,

just five days after Randall received a letter from Northwood School on Friday, March

29. Dkt. No. 174-1 at Jf 151-53; Randall Decl. at 9 6; Estling Decl. at 95. As a result,

subdivision two, not one, of section 104 would be the operative provision as a matter of

state law. That provision, applicable to meetings scheduled on shorter notice, does not

require 72 hours’ notice. Instead, it requires notice to be provided “to the extent

10

practicable . . . at a reasonable time prior” to the hearing. N.Y. Pub. Off. Law § 104(2).

Plaintiffs have not shown that inadequate notice was provided under that provision.

In any event, state law does not dictate the scope of federal due process protections

because “a violation of state procedural law does not necessarily mean that the federal

due process clause has been violated.” Shabazz v. Bezio, 669 F. App’x 592, 593 (2d Cir.

2026) (citing Holcomb v. Lykens, 337 F.3d 217, 224 (2d. Cir. 2003)). State law, therefore,

does not provide a basis for finding the Village denied Plaintiffs due process. Instead,

“we look to ‘federal constitutional standards rather than state statutes to define the

requirements of procedural due process.’” Tooly v. Schwaller, 919 F.3d 165, 172 (2d Cir.

2019) (quoting Robison v. Via, 821 F.2d 913, 923 (2d Cir. 1987)) (internal alterations

“| omitted).

Generally, as a matter of federal law, due process involves “the right to notice and

a meaningful opportunity to be heard.” LaChance v. Erickson, 522 U.S. 262, 266 (1998)

(citing Cleveland Bd. of Ed. v. Loudermill, 470 U.S. 532, 542 (1985)). “These

constitutional requirements apply only where the official action is ‘designed to adjudicate

disputed facts in particular cases.’” Baines v. Masiello, 288 F. Supp. 2d 376, 388

(W.D.N.Y. 2003) (quoting United States v. Florida East Coast Ry. Co., 410 U.S. 224,

245 (1973)). However, “it is black letter law that a person is not entitled to procedural

due process protections against government action that is legislative in nature.” Hopkins

Hawley LLC v. Cuomo, 518 F. Supp. 3d 705, 714 (S.D.N.Y. 2021) (citing Bi-Metallic

Inv. Co. v. State Bd. of Equalization, 239 U.S. 441, 445 (1915)). “A government action

1]

is legislative in nature if it has ‘general application’ and ‘applies prospectively.’” Roberts

v. Fleury, 2024 WL 1242231, at *8 (N.D.N.Y. Mar. 22, 2024) (quoting Hopkins Hawley

LLC v. Cuomo, 518 F. Supp. 3d at 714).

It seems quite clear that the actions taken by the Village Board at the challenged

meeting were legislative in nature and, as such, Plaintiffs were not entitled to the notice

they allege. The plan considered and adopted by the Board concerned a public

thoroughfare and all who would use it. It was clearly a matter of general applicability

and, since it involved future access, it was clearly prospective. Plaintiffs’ arguments to

the contrary are without merit.

Plaintiffs suggest that the “special meeting did not involve a generally applicable

“| policy choice” because it “concerned one project, one applicant, one site, and one set of

immediately affected neighboring owners.” Pls.’ Supp. Mem. at p. 2. That the resolution

originated because of a particular project does not itself make it non-legislative. See

Bogan v. Scott-Harris, 523 U.S. 44, 54 (1998). More importantly, Judge Sannes has

already concluded to the contrary. In dismissing individual section 1983 claims against

the Village board members, she concluded that acting on the Northwood School’s

proposal was “within the sphere of legislative activity” and thus the Board members were

immune from suit. Fletcher I, 2023 WL 8573860, at *15. Judge Sannes noted that “the

vote is not alleged to have only affected Plaintiffs” and “this sort of policymaking clearly

flows from the legislative function.” /d.; see also Livant v. Clifton, 334 F. Supp. 2d 321,

12

326 (E.D.N.Y. 2004), aff'd, 272 F. App’x 113 (2d Cir. 2008). That conclusion is law of

the case.

This finding is amplified by the summary judgment record. First, Plaintiffs’

current argument is inconsistent with what the record shows about how the Northwood

| project affected pedestrian traffic in the Village generally beyond just Plaintiffs. As Judge

Sannes recognized, “the vote is not alleged to have only affected Plaintiffs - it involved

approving a construction plan for a private school building.” Fletcher I, 2023 WL

8573860, at *15. The meeting was held to consider a “plan for use of Main Street.” Laws

Decl., Ex. K at p. 4; see also Laws Decl. at Ex. J (comments from Randall noting that the

Board meeting was “about a plan to accommodate parking, pedestrian access to the

“| sidewalk and traffic flows during actual construction”). The proposed plan that was

considered at the meeting included temporary closures of walkways, the addition of a

temporary crosswalk, and the closure of a public loading zone. Laws Decl., Ex. K at p. 4

The plan also included the installation of temporary protective measures, discussed the

use of cranes on Main Street, set forth parameters for the placement and removal of

dumpsters, and addressed parking concerns in and around the Village related to the

project. /d. at Ex. K pp. 4-5. The proposal specifically recognized the “disruption to

Main Street” that the project would involve. /d. at Ex. I. Evidence provided by Plaintiffs

shows the impact this project had on pedestrians generally traversing this part of the

Village. Wojdan-Price Decl. at Exs. E2, E4, & E7. That Plaintiffs may have felt the

impact more frequently given their proximity to the work zone does not make the project

13

any less generally applicable. The effects of the resolution’s passage affected anyone

travelling in this area of the Village during the project and so was a matter of “general

application” for the Village. This was clearly “a legislative act... in that it... involved

the making of policy regarding building and construction in the Village.” Bloomingburg

y|Jewish Educ. Ctr. v. Vill. of Bloomingburg, N.Y., 111 F. Supp. 3d 459, 492 (S.D.N.Y.

2015).

Plaintiffs, therefore, have failed to show any underlying constitutional violation.

2. Monell

Even were due process implicated on these facts, the Village would be entitled to

summary judgment because Plaintiffs have not established a basis for municipal liability.

The existence of a municipal policy that gives rise to Monell liability can

be established in four ways: (1) a formal policy endorsed by the

municipality; (2) actions directed by the government’s authorized

decisionmakers or those who establish governmental policy; (3) a persistent

and widespread practice that amounts to a custom of which policymakers

must have been aware; or (4) a constitutional violation resulting from

policymakers’ failure to train municipal employees.

Deferio v. City of Syracuse, 770 F. App’x 587, 589-90 (2d Cir. 2019) (internal quotations,

citations, and alterations omitted). Plaintiffs’ claim hinges on the second of these

possibilities: the actions of final governmental policy makers. See Am. Compl. at {J 17

& 20; Pls.” Mem. of Law at pp. 14-15; see also Fletcher I, 2023 WL 8573860, at *14.°

The gravamen of Plaintiffs’ claim is that the Village is liable, through the acts of

a final policymaker, for failing to comply with New York law to ensure that proper notice

5 The Amended Complaint also refers to a failure to train employees regarding provision of proper notice, Am.

Compl. at J 258, but that claim was previously dismissed. Fletcher I, 2023 WL 8573860, at *13.

14

of the Special Meeting was provided. Plaintiffs specifically contend that Randall and

Devlin were the Village officials with final policymaking authority as to this matter. Pls.’

Mem. of Law at pp. 14-15. The question then focuses on the notice provided and by

whom. The undisputed facts establish that the April 3 meeting was scheduled because of

letter received by Randall on March 29, and that some notice of the meeting was

provided. Dkt. No. 174-1 at 49 151-53; Randall Decl. at § 6; Estling Decl. at 5.

At his deposition, Devlin testified that he did not know specifics about how notice

was provided to the public regarding the meeting. Dkt. No. 162-11 at pp. 35-36. He did

testify that he “would assume” that this was done by the Village Clerk. /d. at p. 36. He

also submitted a sworn declaration affirming that he had “no role in organizing or calling

meeting.” Devlin Decl. at 5. Randall concedes that he directed that the meeting be

scheduled, Randall Decl. at { 6, but according to him, the Village Clerk was responsible

for providing notice. /d. at 7. The Village Clerk confirms that she provided notice via

a Facebook post on April 2. Estling Decl. at ¥ 5.

“Under Monell, state law determines whether the municipal entity or official

possessed final policymaking authority with regard to the actions in question and is

therefore subject to § 1983 liability.” Chislett v. New York City Dep’t of Educ., 157 F.4th

172, 184 n.3 (2d Cir. 2025). Plaintiffs bear the burden of establishing that an official had

final policymaking authority. Edrei v. City of New York, 254 F. Supp. 3d 565, 580

(S.D.N.Y. 2017), aff'd sub nom. Edrei v. Maguire, 892 F.3d 525 (2d Cir. 2018);

Delrosario v. City of New York, 2010 WL 882990, at *6 (S.D.N.Y. Mar. 4, 2010).

15

The Court has little trouble imagining situations in which the Mayor of the Village

has policymaking authority. It may also be true that an individual board member could

have certain policymaking authority. But policymaking authority under Monell is tied to

specific functions rather than broad authority generally. “Municipal liability attaches

only where the decisionmaker possesses final authority to establish municipal policy with

respect to the action ordered.” Pembaur v. City of Cincinnati, 475 U.S. 469, 481 (1986)

(emphasis added). In Roe v. City of Waterbury, the Second Circuit made this clear by

highlighting that “the critical inquiry is not whether an official generally has final

policymaking authority; rather, the court must specifically determine whether the

government official 1s a final policymaker with respect to the particular conduct

“| challenged in the lawsuit.” 542 F.3d 31, 37 (2d Cir. 2008). To avoid dismissal, therefore,

Plaintiffs must show that either Devlin or Randall had final policymaking authority for

provision of notice regarding public meetings. As such “an allegation of policy-making

authority . . . requires proof of the official’s scope of employment and his role within the

municipal or corporate organization.” Levin v. City of Buffalo, 179 F.4th 132, 141 (2d

Cir. 2026).

a

Plaintiffs have not carried that burden here. They cite no authority — statutory,

regulatory, or from caselaw — suggesting who bore the final authority for providing notice

of such meetings under New York law. Indeed, no authority is cited by any party

demonstrating if any one individual has that specific function. New York’s Village Law

does not specifically designate to the Mayor such authority. See N.Y. Village Law § 4-

16

400. Nor is that task assigned to a village clerk or board of trustees. See N.Y. Village

Law §§ 4-402 & 4-412. Plaintiffs, therefore, have not established that either Randall or

Devlin were policymakers for the purpose of providing notice.

In their papers relating to these Motions, Plaintiffs appear to place significant

y| emphasis on the votes Devlin and Randall cast regarding the resolution, see, e.g., Pls.’

Opp. at p. 13 (‘Mayor Randall and Deputy Mayor Devlin were acting in their official

capacities, following established procedures for approving construction plans.”), but what

happened at the meeting is irrelevant to the notice issue on which Plaintiffs’ due process

claim is based. The harm alleged by Plaintiffs is that the lack of notice “prevented

Plaintiffs from attending [the meeting] to challenge” the Northwood proposal, Am.

Compl. at □ 119, before the Village acted on matters related to Northwood’s construction

project. How members of the Board voted at the meeting does not implicate whether

proper notice was provided. The action challenged by Plaintiffs is not the Board’s

passage of a resolution, but the lack of notice beforehand.

While Monell also permits a finding of liability when actions are taken pursuant to

a municipal policy or custom, Torcivia v. Suffolk Cnty., New York, 17 F.4th 342, 355 (2d

Cir. 2021), none has been shown here. Liability may exist under this standard when the

“practices were persistent and widespread so as to constitute a custom or usage with the

force of law.” Chislett v. New York City Dep’t of Educ., 157 F.4th 172, 184 (2d Cir. 2025)

(internal quotation and citation omitted). Clearly there is no evidence of a custom of

failing to provide notice of Village Board meetings. Plaintiff Hughes, for example, was

17

a regular attendee at Village meetings and notes in support of his Motion that he typically

received notice from a Village mailing list. Dkt. No. 160-16, Bliss Decl., Ex. A at pp.

24-25; see also Wojdan-Price Decl. at Ex. IJ. Plaintiff Hughes concedes that the Village

had a process in place, namely using an email list, that generally provided him notice of

y| the Village’s meetings. The Amended Complaint alleges that Hughes received “notice

of each and every Open Public Meetings prior via said email list.” Am. Compl. at J 116.

Given that record, there is zero evidence of any policy or custom to deny notice of

meetings to residents.

Accordingly, Plaintiffs’ Motion for Summary Judgment as to the due process

claim is denied, while Defendant’s is granted. Plaintiffs’ due process claim 1s dismissed.

“| Plaintiff Hughes was only a party as to this claim and, as a result, all claims brought by

him are now dismissed.

C. Americans with Disabilities Act Claim

Plaintiff Fletcher also asserts a claim for discrimination under Title II of the

Americans with Disabilities Act. Am. Compl. at 9§] 240-54. She alleges generally that

during the course of the two construction projects she was denied meaningful access,

either entirely or in part, to Main Street and its adjacent sidewalk. /d.; see also Pls.” Mem.

of Law at pp. 5 & 7-12.

1. Admissibility of Evidence

At the outset, the Court must address what evidence is properly before the Court

on these Motions. Plaintiff has offered expert opinions from Sharon Lobo and Dr. Fred

18

Lubin as evidence in support of her Motion. Defendant objects that these reports are

inadmissible for purposes of the Motion because they are not sworn. Def.’s Opp. at pp.

3-6.°

Defendant correctly notes that courts not infrequently deem unsworn reports, such

y| as that from Ms. Lobo, inadmissible at the summary judgment stage. See, e.g., Marcano

v. Schindler Elevator Corp., 2024 WL 4827405, at *2 (S.D.N.Y. Nov. 19, 2024) (citing

cases). However, “[t]he form of evidence supporting a motion for summary judgment

need not itself be admissible at trial.” Sec. Inv. Prot. Corp. v. Bernard L. Madoff Inv. Sec.

LLC, 528 F. Supp. 3d 219, 231 (S.D.N.Y. 2021), aff'd sub nom. Picard Tr. for SIPA

Liquidation of Bernard L. Madoff Inv. Sec. LLC v. JABA Assocs. LP, 49 F.4th 170 (2d

“| Cir. 2022). “While expert reports would be inadmissible hearsay at trial, if the opinions

of the experts would be admissible at trial, expert reports can show that there is admissible

evidence for trial.” Jd. (citing cases). Accordingly, “[mlJaterial relied on at summary

judgment need not be admissible in the form presented to the district court. Rather, so

long as the evidence in question will be presented in admissible form at trial, 1t may be

considered at summary judgment.” Bunnenberg v. Liberty Mut. Fire Ins. Co., 2024 WL

4278644, at *8 (N.D.N.Y. Sept. 24, 2024) (internal quotation and citation omitted).

The Court, therefore, will consider the challenged evidence in deciding this

Motion.

6 Other evidence has been presented by way of an attorney declaration, from both counsel, which also fails to present

the material in admissible form. The same logic set forth below applies equally to those exhibits.

19

2. Merits

“Title Il of the ADA proscribes discrimination against the disabled in access to

public services.” Harris v. Mills, 572 F.3d 66, 73 (2d Cir. 2009).

To assert a claim under Title II of the ADA... , a plaintiff must demonstrate

that (1) [s]he is a qualified individual with a disability; (2) the defendant is

subject to . . . the Act[]; and (3) [s]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 h[er] disability.

McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012) (citing Henrietta D. v.

Bloomberg, 331 F.3d 261, 272 (2d Cir. 2003)).

“A qualified individual with a disability is defined as a disabled person who,

whether or not given an accommodation, “meets the essential eligibility requirements for

the receipt of services or the participation in programs or activities provided by a public

entity.”” Powell v. Nat’l Bd. of Med. Examiners, 364 F.3d 79, 84-85 (2d Cir. 2004),

opinion corrected, 511 F.3d 238 (2d Cir. 2004) (citing 42 U.S.C. § 12131(2)). Plaintiff

Fletcher has been diagnosed with multiple sclerosis. Dkt. No. 173-4 at § 10. While

Defendant denies that Plaintiff's condition causes her some of the purported limiting

«| effects, id. at J] 10-11, the Court does not understand the Village to dispute, at least for

purposes of this Motion, that Plaintiff is a qualified individual under the ADA. See

generally Def.’s Opp. at pp. 6-14 (discussing grounds for rejecting Plaintiff's ADA

claim). And clearly the Village is subject to the provisions of Title II. See 42 U.S.C. §

12131(1)(A).

20

The question on the present Motions, therefore, is whether either party has

established their entitlement to judgment on the question of whether Plaintiff has been

“denied the opportunity to participate in or benefit from the [D]efendant’s services,

programs, or activities, or was otherwise discriminated against by the [D]efendant

because of h[er] disability.” McElwee v. Cnty. of Orange, 700 F.3d at 640 (citing

Henrietta D. v. Bloomberg, 331 F.3d at 272). “Title II. . . require[s] only that entities

make ‘reasonable accommodations’ to enable meaningful access to services, programs,

and activities.” Bernstein v. City of New York, 621 F. App’x 56, 59 (2d Cir. 2015)

(quoting Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000) (per curiam)); see also

Tennessee v. Lane, 541 U.S. 509, 531-32 (2004) (“Title II does not require States to

“| employ any and all means to make . . . services accessible to persons with disabilities.

And in no event is the entity required to undertake measures that would impose an undue

financial or administrative burden, threaten historic preservation interests, or effect a

fundamental alteration in the nature of the service.”). “In examining this 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.’” Wright v.

New York State Dep’t of Corr., 831 F.3d 64, 72 (2d Cir. 2016) (quoting Henrietta D. v.

Bloomberg, 331 F.3d at 273).

This Court recognizes, as did Judge Sannes’ prior Decision, that “Plaintiff

Fletcher’s claim focuses on the public sidewalks owned and operated by the Village of

Lake Placid.” Fletcher I, 2023 WL 8573860, at *18. The Amended Complaint alleges

21

several times that Ms. Fletcher was denied reasonable access to Lake Placid’s public

sidewalks. Am. Compl. at [9 91, 141, & 248. Courts have recognized that “maintaining

the accessibility of pedestrian pathways, such as sidewalks . . . has been held to fall within

the purview of Title II.” Lugo v. City of Troy, New York, 2024 WL 4950105, at *5

y| (N.D.N.Y. Dec. 3, 2024) (citing cases); see also Am. Council of Blind of New York, Inc.

v. City of New York, 495 F. Supp. 3d 211, 230 (S.D.N.Y. 2020) (courts have recognized

that “the building, alteration, and maintenance of city sidewalks constitutes a service

within the meaning of Title IT’).

a. Northwood School Project

Plaintiff claims that the Northwood project, by closing the sidewalk next to the

“| Northwood School building, resulted in ADA violations because it denied her access to a

means of egress from her property and that the alternative pedestrian access route

established was not ADA compliant. Plaintiffs first contention is not supported by the

record or caselaw applicable to Title I. The second poses questions of fact that must be

resolved at trial.

i. Sidewalk Closure

Photographic and video evidence makes clear that the sidewalk area adjacent to

Plaintiff's property was impeded or blocked at various times while the project was

ongoing. See, e.g., Wojdan-Price Decl., Exs. E-2 at pp. 1-2, E3, E-6, E-8, & H.’ That

7 Plaintiff offers an additional video of a purported blocked gate. Wojdan-Price Decl. at Ex. E9. The video reveals,

however, that the only blockage was from a traffic cone that was easily moved out of the way. Id. Nothing about

that incident suggests anything violative of the ADA.

22

alone, however, does not establish Plaintiff’s claim. Instead, to the extent Plaintiff asserts

that the closure of the sidewalk itself violated the ADA, her claim cannot proceed.

The record establishes that, when the sidewalk was closed, it was closed to all

pedestrians. A claim under the ADA requires “there must be something different about

| the way the plaintiff is treated “by reason of .. . disability.”” Henrietta D. v. Bloomberg,

331 F.3d at 276 (quoting 42 U.S.C. § 12132). Put another way, “[i]n order to recover

compensatory damages under Title H of the ADA ... , the plaintiff must show that the

discrimination was intentional.” Blevins v. Town of Brighton, 2025 WL 1906756, at *6

(W.D.N.Y. July 10, 2025); see also Galarza v. City of New York, 2025 WL 1303866, at

*14 (S.D.N.Y. Jan. 6, 2025) (“Under Title Il of the ADA .. . a plaintiff can recover

“| compensatory damages only upon a showing of intentional discrimination.”). To the

extent there was a complete lack of access on the sidewalk immediately in front of the

Grace Way Property, Plaintiff cannot establish that was the result of intentional

discrimination by the Village based on her disability. The impediments to access to the

sidewalk during this time did not single out Plaintiff in any way. When the sidewalk was

blocked, it was blocked to all potential users, including Hughes. “In the present case,

both disabled and non-disabled persons are blocked from using the sidewalk [and]. . .

[t]here is no instance of discrimination here to support Plaintiff's ADA claim. Defendant]

[is] entitled to summary judgment on this issue.” E/guezabal v. GBG Props. Two LLC,

2019 WL 6792815, at *3 (C.D. Cal. Oct. 2, 2019).

23

To the extent Plaintiff attempts to assert claims regarding denial of access by way

of certain rights of way, compare Def.’s Mem. of Law at pp. 5-7 & 17 & Def.’s Opp. at

pp. 6-12 with Pls.’ Opp at pp. 15-16, her claim fares no better. Like the sidewalk itself,

access to the sidewalk from the Hughes stairs® and Northwood ROW were closed to all.

y| Specifically, Hughes and Fletcher faced the same lack of access by their closure, and so

Plaintiff cannot claim a lack of access based upon her disability.

It does not appear that the Shea ROW was closed, but rather that it could provide

access to Main Street from the Grace Way Property. See Wojdan-Price Decl. at Ex. E4;

Bliss Decl.; Laws Decl. at Ex. N. The record reflects that the Grace Way Property has an

easement over the Shea property to Main Street. Bliss Decl. at § 10 & Ex. B. Plaintiff,

“| however, chose not to use that ROW and had not done so since at least January 1, 2018,

because of its condition. Bliss Decl., Ex. A at p. 5; see also Pl.’s Dep. Vol. 1 at p. 138.

That was more than a year before the Northwood project commenced in April 2019. Any

lack of access to Main Street via that ROW, therefore, is not attributable to the project or

the Village.

Finally, there is the Grace Way driveway access point. While Plaintiff testified

that she could not walk up the Grace Way driveway because of its slope, Pl.’s Dep. at p.

72, the record shows she could use the driveway as a means to access Main Street in a

vehicle. Dkt. No. 174-1 at 9 190. While this was clearly not Plaintiff's preferred means

‘The Hughes stairs, it must be reiterated, were not built until June 2019. Dkt. No. 174-1 at 4 114-15. They were

temporary, id. at § 113, and built into what was already an active construction zone. See id. at 114. The Court

greatly doubts that Plaintiff could in any event claim a denial of access via the stairs under such circumstances.

24

of access, the ADA does not guarantee access by a preferred method. “Nowhere in the

ADA guidelines is there the requirement that a plaintiff has the ability to select a specific

pathway to make accessible when there is already another accessible route available.”

Feltenstein v. Wykagyl Assocs. HJ, LLC, 184 F. Supp. 3d 76, 82 (S.D.N.Y. 2016); see

y| also Wilson v. Pier I Imports (US), Inc., 439 F. Supp. 2d 1054, 1071 (E.D. Cal. 2006).

Plaintiff did testify that the Grace Way driveway was sometimes blocked by

vehicles. Dkt. No. 174-1 at § 192. Such blockages it appears were intermittent. Pl.’s

Dep. at pp. 74-75. Despite those issues, Plaintiff could access Main Street by car using

the driveway “[a] majority of the time.” □□□ at p. 74. While “complete exclusion is not

the test of liability under the ADA,” Am. Council of Blind of New York, Inc. v. City of

=| New York, 495 F. Supp. 3d at 235, the ADA does not apply to “non-trivial temporal delays

that limit access to programs, services, and activities.” Wright v. New York State Dep’t

of Corr., 831 F.3d at 73. In any event it is unclear how such blockages could be

attributable to the Village, since Plaintiff could not testify to the ownership of those

vehicles. See Dkt. No. 174-1 at {| 196. Blocking the driveway, much like the closing of

the sidewalk, is also something that would have impacted all users of the Grace Way

driveway and cannot be shown to be because of Plaintiff's disability.

Defendant, therefore, is entitled to summary judgment on this aspect of Plaintiff's

ADA claim.

25

ii. Alternate Pedestrian Walkway

At some point shortly into this project, a temporary pedestrian access route was

established to funnel traffic away from the sidewalk. See Laws Decl. at Ex. N; Wojdan-

Price Decl. at Ex. E2. Plaintiff has presented evidence that this access route was not ADA

y| compliant. Dkt. No. 179 at pp. 3-8. Her expert witness, Ms. Lobo, highlighted several

purported deficiencies with this path, including the lack of a ramp from the curb to the

street, the placement of metal barricades potentially creating a tripping hazard, and the

insufficient width of the path. /d. at p. 5. The issues identified, unlike the total sidewalk

closure, could specifically impact Plaintiffs unique ability to use the walkway.

When circumstances posing a potential denial of access exist, courts often apply a

“| burden shifting framework to assess the ADA claim. Woods v. Tompkins Cnty., 2016 WL

5107120, at *3 (N.D.N.Y. Sept. 20, 2016); Ali v. Hogan, 2014 WL 6810712, at *5

(N.D.N.Y. Dec. 2, 2014). This analysis presents an inherently fact-specific inquiry

because “the determination of whether a particular modification is ‘reasonable’ involves

a fact-specific, case-by-case inquiry that considers, among other factors, the effectiveness

of the modification in light of the nature of the disability in question and the cost to the

organization that would implement it.” Mary Jo C. v. New York State & Loc. Ret. Sys.,

707 F.3d 144, 153 (2d Cir. 2013) (quoting Staron v. McDonald’s Corp., 51 F.3d 353, 356

(2d Cir. 1995)); see also Wright v. New York State Dep’t of Corr., 831 F.3d at 72-73;

Kramer v. Dep’t of Correction, 2019 WL 4805152, at *12 (D. Conn. Sept. 30, 2019),

aff'd, 828 F. App’x 78 (2d Cir. 2020).

26

In this framework Plaintiff bears the initial burden to show that reasonable

accommodations were available. Celeste v. E. Meadow Union Free Sch. Dist., 373 F.

App’x 85, 88 (2d Cir. 2010). That burden is “not a heavy one.” Borkowski v. Valley

Cent. Sch. Dist., 63 F.3d 131, 137 (2d Cir. 1995). The burden then shifts to the Defendant

| to show that the proposed accommodations constitute an undue burden, based on a variety

of factors including cost, practicality, and feasibility. /d. at 138-39.

The parties do not fully engage on the practicalities of alternatives that may have

been available in such a situation.’ Plaintiffs expert identified various ADA deficiencies

in the temporary pedestrian walkway, some of which it would seem could have been

easily remediated, but she offered no guidance about how that would be done.

“| Defendant’s expert, like Plaintiffs, did not observe the temporary route while it was in

place and did not even opine on whether it was ADA compliant. See Dkt. No. 162-17 at

p. 2; Dkt. No. 173-4 at 9 34; Dkt. No. 179 at p. 3. Here, Plaintiff has presented evidence

of a potential ADA violation, but given the paucity of the record on whether and how

these issues could be remedied, questions of fact exist that preclude summary judgment

for either party.

° Defendant focuses its argument on the fact that summary judgment is appropriate because Plaintiff fails to show

that removal of the barriers was “readily achievable” as required by 42 U.S.C. § 12182(b)(2)(A)(iv). Def.’s Mem.

of Law at pp. 20-22. However, “42 U.S.C. § 12182(b)(2)(A)(iv) applies to Title IIT of the ADA concerning public

accommodations, not Title II concerning public entities. Accordingly, this ‘readily achievable’ standard that

[Defendant] asks the court to apply to Plaintiff[’s] Title II clatms is wholly inapplicable.” McMillon v. Hawaii, 2009

WL 10757954, at *12 (D. Haw. June 19, 2009); see also Civic Ass’n of Deaf of New York City, Inc. v. Giuliani, 915

F. Supp. 622, 636 (S.D.N.Y. 1996) (noting differences between Title II and Title II).

27

b. Main Street Project

While Plaintiff also asserts a claim regarding denied access as a result of the Main

Street project, the record establishes very little, with one exception, about how Plaintiff

claims she was denied such access.

The Amended Complaint alleges, inter alia, the failure to install a waterline to

service the Grace Way Property that was in original plans, the creation of non-ADA

compliant barriers, and leaving construction materials on Plaintiff's property. Am.

Compl. at 9] 87 & 89. In response to an Interrogatory asking Plaintiff to identify “each

barrier or deficiency that you personally observed or experienced that was created by

Defendant” with respect to the Main Street project, Plaintiff identified the lack of

“| waterline, the “remov[al of] large sections of the Main Street public walkway while

businesses remained open to the public without ADA compliant walkway diversions,” a

“non-conforming curb that is inches tall directly in Fletchers [sic] path and on her

Lot... [mJaking Fletcher’s gate on her only path un-operational for her use,” and the

leaving of “construction debris on the Fletcher Lot where it was not accessible for her to

cleanup and dispose of.” Bliss Decl., Ex. A at pp. 7 & 9-11.

The extent to which she was denied access to Main Street or the adjacent sidewalk

by construction and non-ADA compliant walkways is entirely unclear. In sharp contrast

to the evidence presented by Plaintiff regarding work during the Northwood School’s

construction, the record is devoid of any photographs, videos, or testimony from Plaintiff

about what obstacles she faced during the Main Street project. This may well be

28

explained by the fact that Plaintiff was absent from the Village for an extended period of

time during the Main Street reconstruction. She rented the Grace Way Property to a third

party for between twelve and eighteen months during portions of the Main Street project.

Pl.’s Dep. Vol. 2 at pp. 15-17; Dkt. No. 174-1 at {§] 73-76. Plaintiff concedes that she

| was in Virginia for much of the project and extended her time there based on reports from

Hughes that “it was not accessible for [her] to come up to Lake Placid,” Pl.’s Dep. Vol. 2

at p. 20, but she does not recall for how long she was present in Lake Placid during this

project. Jd. at p. 19; Dkt. No. 174-1 at 213-17. The Amended Complaint alleges that

Plaintiff left Lake Placid “for a period of time” around the commencement of the project

in Spring 2022. Am. Compl. at § 90. She returned on November 28, 2022. /d. at 4 91.

“| There is a complete lack of evidence that Plaintiff actually encountered disruptions on

Main Street during this project, which precludes her general claim regarding her alleged

lack of access during this project.

Plaintiff also fails to carry her initial burden regarding claims related to the failure

to install a waterline and the leaving of construction debris on her property. As was

discussed in detail above, an ADA claim requires Plaintiff to show that the challenged

conduct arose because of her disability. See 42 U.S.C. § 12132. Significantly, Plaintiff

makes barely any mention of these issues in her motion papers. Moreover, nothing in the

record shows that either the identified waterline or debris issues came to be because of

Plaintiff Fletcher’s disability or uniquely affected her because of her disability. Those

29

issues would have affected Fletcher and Hughes the same. As a result, Fletcher has no

claim with respect to those issues.

There is a significant noted exception. Ms. Fletcher does assert that at the

conclusion of the project the completed sidewalk was in violation of the ADA.

Specifically, she alleges that the reconstructed sidewalk was not even with the Hughes

stairs and thus hindered her access. Am. Compl. at Jf 91-92. Plaintiff's expert opined

that the sidewalk installed during the Main Street project rendered the Hughes stairs

“unusable” because of the gap between the steps and the sidewalk which, according to

the expert, created an elevation difference of more than one inch beyond the allowable,

forcing Fletcher to install a ramp from her steps to the sidewalk. Dkt. No. 179 at pp. 13-

“114. Defendant’s expert opined that the Hughes stairs themselves were not ADA

compliant and that it is the property owners’ obligation to render their property accessible.

Dkt. No. 162-17 at pp. 4, 6, & 7. That expert also noted that several other property

entrances along Main Street were not flush with the sidewalk and that this was not

inconsistent with the ADA. /d. at pp. 5 & 6.

Questions of fact, therefore, exist on the question of whether meaningful access

was denied by virtue of the difference in height between the sidewalk and the Hughes

stairs. And as with the issue concerning the alternative pedestrian access, here too the

parties do little to address the reasonableness of this action. Based on the information

provided by the parties, the Court cannot assess the degree of access denial and whether

30

reasonable accommodations are available to address it. Summary judgment as to this

aspect of Plaintiff's claim must be denied as a result.

3. Defendant’s Remaining Arguments

Apart from defenses of the merits, the Village seeks summary judgment on several

additional grounds which are considered below.

a. Damages

The Village suggests that “compensatory damages” are not available under Title

II. Def.’s Mem. of Law at p. 17 n.5 (citing Cummings v. Premier Rehab Keller, P.L.L.C.,

596 U.S. 212 (2022)). Cummings, however, held only that damages for emotional distress

were unavailable for purposes of the Rehabilitation Act, not that all forms of

“| compensatory damages were unavailable. Cummings v. Premier Rehab Keller, P.L.L.C.,

596 U.S. at 230. The Second Circuit has since found that this holding also applies to

claims under Title Il of the ADA. Doherty v. Bice, 101 F.4th 169, 175 (2d Cir. 2024),

cert. denied, 145 S. Ct. 381 (2024). The Court notes that punitive damages also are not

available under Title II. Barnes v. Gorman, 536 U.S. 181, 189 (2002). Just last year in

J.T. by & through A. T. v. Osseo Area Schs., Indep. Sch. Dist. No. 279, however, the

Supreme Court held that Title H “authorize[s] individuals to seek redress for violations

of their substantive guarantees by bringing suits for injunctive relief or money damages.”

605 U.S. 335, 339 (2025). The Court, therefore, presumes that Plaintiff Fletcher’s ADA

claim can proceed as to non-emotional distress, non-punitive damages claims.

31

b. Mootness

The Village argues that the completion of the Northwood and Main Street projects

moots Plaintiff Fletcher’s ADA claim. Def.’s Mem. of Law at pp. 15-16. The Court

disagrees.

“A case becomes moot pursuant to Article III’s Case or Controversy Clause when

it is impossible for a court to grant any effectual relief whatever to the prevailing party.”

United States v. Young, 998 F.3d 43, 51 (2d Cir. 2021) (quoting Tanasi v. New AIl. Bank,

786 F.3d 195, 198 (2d Cir. 2015)). The mere fact that the projects, which were the cause

of the allegedly unlawful access disruptions, have been completed is not a basis for

mooting Plaintiff's claim. Here, Plaintiff seeks monetary damages and so relief remains

“| available from the Court. “The availability of monetary damages prevents dismissal for

mootness.” Lillbask ex rel. Mauclaire v. Sergi, 193 F. Supp. 2d 503, 509 (D. Conn. 2002)

(citing Buckhannon Bd. & Care Home, Inc. v. W. Va. Dep’t of Health & Human Res., 532

U.S. 598, 608-09 (2001)). The matter thus is clearly not moot. Any other ruling would

permit violations of the ADA without recourse provided that the project could be

completed more quickly than litigation to address it.

c. Standing

Defendant also contends that Plaintiff lacks standing to assert her Title II claim.

Def.’s Mem. of Law at pp. 17-20.

32

“Under Article III of the Constitution, plaintiffs must have a ‘personal stake’ in a

case to have standing to sue.” Bost v. Illinois State Bd. of Elections, 146 S. Ct. 513, 519

(2026) (quoting FDA v. Alliance for Hippocratic Medicine, 602 U.S. 367, 379 (2024)).

In the ADA context, we have said that a plaintiff adequately alleges injury

when “(1) the plaintiff alleged past injury under the ADA; (2) it was

reasonable to infer that the discriminatory treatment would continue; and

(3) it was reasonable to infer, based on the past frequency of plaintiff's visits

and the proximity of defendant’s services to plaintiff's home, that plaintiff

intended to return to the subject location.”

Lugo v. City of Troy, New York, 114 F.4th 80, 86 (2d Cir. 2024) (quoting Kreis/ler v.

Second Ave. Diner Corp., 731 F.3d 184, 187-88 (2d Cir. 2013)) (internal alterations

omitted).

Here again, while Defendant places emphasis on the completion of the

construction projects, the Court does not find this a barrier to Plaintiff's standing.

Plaintiff has clearly alleged a past injury. While the construction projects are complete,

Plaintiff alleges that the area where the Hughes stairs meet the Main Street sidewalk

remains out of compliance with ADA standards. Plaintiff resides in the Village and so

the alleged noncompliance amounts to a continuing issue that she has standing to address.

A The Court, therefore, finds that standing is not a basis for granting summary

judgment to the Village.

4. ADA Coordinator

Plaintiff makes several references in the motion papers to the fact that the Village

did not have a designated ADA coordinator until 2023. Pls.” Mem. of Law at pp. 9-10;

Pl.’s Opp. at pp. 5 & 18. It is unclear whether this was a claim properly set forth in the

33

Amended Complaint. See Am. Compl. at 4 98 (only mention of ADA coordinator in

pleading). To the extent it 1s, summary judgment on this claim is granted to Defendant.

A municipality employing fifty or more people is required to “designate at least

one employee to coordinate its efforts to comply with and carry out its responsibilities”

under the ADA. 28 C.F.R. § 35.107. The Village does not dispute that it had more than

fifty employees, and concedes that the official designation of an ADA Coordinator did

not take place until March 6, 2023. Dkt. No. 173-4.

This is not a basis for a claim, however, because there is no cause of action for

noncompliance with section 35.107. The regulation provides:

(a) Designation of responsible employee. A public entity that employs 50 or

more persons shall designate at least one employee to coordinate its efforts to

comply with and carry out its responsibilities under this part, including any

investigation of any complaint communicated to it alleging its noncompliance

with this part or alleging any actions that would be prohibited by this part. The

public entity shall make available to all interested individuals the name, office

address, and telephone number of the employee or employees designated

pursuant to this paragraph.

(b) Complaint procedure. A public entity that employs 50 or more persons

shall adopt and publish grievance procedures providing for prompt and

equitable resolution of complaints alleging any action that would be prohibited

by this part.

28 C.F.R. § 35.107.

Courts throughout the country have held “there is no private right of action to

enforce section 35.107.” Shaw v. Floyd, 2017 WL 2348818, at *3 (N.D. Tex. Mar. 27,

2017), report and recommendation adopted, 2017 WL 2335621 (N.D. Tex. May 30,

2017); see also Jones v. City of Detroit, 2023 WL 1819141, at *2 (E.D. Mich. Feb. 8,

34

2023); Reyes v. Larimer Cnty., 2019 WL 9093606, at *3 (D. Colo. July 17, 2019), report

and recommendation adopted, 2019 WL 9093605 (D. Colo. Aug. 6, 2019), aff'd, 796 F.

App’x 497 (10th Cir. 2019); Brown v. Dep’t of Pub. Safety & Corr. Servs., 383 F. Supp.

3d 519, 555 (D. Md. 2019) (citing cases); Wray v. Oregon Dep’t of Corr., 2013 WL

3479477, at *15 (D. Or. July 8, 2013); DeLeon v. City of Alvin Police Dep’t, 2011 WL

43432, at *5 (S.D. Tex. Jan. 6, 2011). Courts have been repeatedly cautioned against

implying private rights of action. See Menora Mivtachim Ins. Ltd. v. Frutarom Indus.

Lid., 54 F.4th 82, 86 (2d Cir. 2022). Consistent with this direction, the Court has

considered those cases carefully and adopts the rationale contained in them. Any claim

asserted with respect to the alleged violation of the ADA grievance procedures, therefore,

dismissed.

5. Title III

The Amended Complaint also asserted a claim under Title III of the ADA. Am.

Compl. at {J 247-49. Fletcher seeks summary judgment as to this claim. Pls.” Mem. of

Law at pp. 7-12. This aspect of Plaintiffs Motion must be denied as moot since Plaintiff's

Title II claim has already been dismissed. In Judge Sannes’ decision addressing various

motions to dismiss she identified what claims remained. The Court identified only “1)

Plaintiffs’ Section 1983 claim against the Village of Lake Placid for municipal liability;

and 2) Plaintiff Fletcher’s Title I] ADA disability discrimination claim against the Village

of Lake Placid.” Dkt. No. 109 at p. 50. As a result, this case has been litigated for over

two years on the presumption that no Title III claim remained pending, a holding that is

35

entirely consistent with the well-established rule that Title III “applies only to private

entities.” Moore v. United States, 2022 WL 1104986, at *1 (W.D.N.Y. Apr. 13, 2022)

(citing cases); see also Benyi v. New York, 2021 WL 1406649, at *14 (N.D.N.Y. Mar. 23,

2021), report and recommendation adopted, 2021 WL 1404555 (N.D.N.Y. Apr. 13,

2021) (“Title Ill expressly does not apply to public entities, including local

governments.”’).

V. CONCLUSION

WHEREFORE, it is hereby

ORDERED, that Defendant’s Motion for Summary Judgment (Dkt. No. 160) is

GRANTED IN PART AND DENIED IN PART as follows:

1) Defendant’s Motion is granted as to Plaintiffs’ section 1983 claim. Since

Plaintiff Hughes is only a party to this claim, the Clerk is directed to terminate him

as a party;

2) Defendant’s Motion is granted in part as to Plaintiff Fletcher’s Title If claim as

set forth above and is otherwise denied; and it is further

ORDERED, that Plaintiffs’ Motion for Summary Judgment (Dkt. No. 162) is

DENIED; and it is further

ORDERED, the matter is scheduled for trial beginning October 5, 2026, at 9:30

a.m. at the James T. Foley Courthouse in Albany. Trial will be limited to Plaintiff

Fletcher’s claim under Title II of the Americans with Disabilities Act; and it is further

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ORDERED, that counsel for the parties are directed to appear in person for a

pretrial conference on August 7, 2026, at 11:00 a.m. in Room 409 of the James T. Foley

Courthouse. Counsel that will be trying the case are directed to appear; and it is further

ORDERED, that the Clerk of the Court serve a copy of this Memorandum-

Decision and Order upon the parties to this action.

Dated: July 27, 2026

Albany, New York

Datiel | Stevan

U.S“Magistrate Judge

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