The opinion of the court was delivered by: SCHEINDLIN
SHIRA A. SCHEINDLIN, U.S.D.J.:
Plaintiff Katharine Lai filed a Complaint on April 8, 1997, alleging that defendant New York City ("the City") had violated her rights under the Americans with Disabilities Act ("the ADA"), 42 U.S.C.A. § 12132 (1997). On October 14, 1997, plaintiff moved to amend the Complaint. Apparently in anticipation of this motion being granted, plaintiff filed an amended Complaint, which adds two new plaintiffs and a claim under 42 U.S.C. § 1983. On December 12, 1997, the City moved for summary judgment pursuant to Federal Rule of Civil Procedure 56. I need not address the plaintiff's motion to amend: For reasons explained below, the City is entitled to summary judgment regardless of which Complaint is in effect.
The facts here are not in dispute. The subject of the controversy is the "New York City Special Vehicle Identification Permit" ("Special Vehicle Permit"), a special parking permit that allows its holder to park at expired meters and in "no parking" zones in New York City. See Defendant's Statement Pursuant to Local Civil Rule 56.1(a) ("Def's 56.1") at PP 11-12; Amended Complaint ("Cmplt.") at unnumbered page 1 (referring to the Special Vehicle Permit as a "New York City Handicapped Parking Permit"). To qualify for this permit, an applicant must have a severe handicap and either be a resident of New York City, a non-resident student attending school in New York City, or a non-resident employee working in New York City. See Def's 56.1 at PP 7, 9; New York City Charter § 2903(15)(a) (1997).
Carrying fewer privileges is the New York State Disability Parking Permit ("State Disability Permit"). Holders of these permits may park in designated off-street parking spaces in New York City; they may not, however, park in "no parking" zones. See Affidavit of Felice Morris, Associate Staff Analyst for the New York City Department of Transportation ("Morris Aff.") at PP 8-11. To be eligible for a State Disability Permit, one need not live, work or attend school in New York City, nor must one face a handicap severe enough to qualify for a Special Vehicle Permit. Compare Morris Aff. at P 15 and N.Y. Vehicle and Traffic Law § 404-a (McKinney 1997) (describing requirements for Special Vehicle Permits and State Disability Permits, respectively). Holders of disability permits issued by other states may park in the same off-street spaces. See Morris Aff. at P 26.
Plaintiff, holder of a New Jersey State disability parking permit, received two summonses on December 16, 1996 for parking at an expired meter. See Def's 56.1 at P 13; Cmplt. at unnumbered page 2. If plaintiff had possessed a Special Vehicle Permit, she would not have received these tickets. See Def's 56.1 at P 11. Plaintiff's permit did, however, allow her to park in designated off-street spaces. See Morris Aff. at PP 10, 26.
A. Americans with Disabilities Act Claim
Title II of the the ADA provides that "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." 42 U.S.C.A. § 12132 (1997). Therefore, to state a claim for relief under the ADA, a plaintiff must allege, inter alia, that she has been denied a benefit "by reason of [her] disability." Castellano v. City of New York, 946 F. Supp. 249, 252 (S.D.N.Y. 1996); Lincoln Cerpac v. Health and Hospitals Corp., 920 F. Supp. 488, 497 (S.D.N.Y. 1996). Here, plaintiff is not alleging that she was discriminated against because of her disability, but rather because she is not a resident of New York City. See Cmplt. at unnumbered page 1 (The challenged rules have "definitely discriminated [against] all the handicapped people from other CITIES and STATES in [the] U.S.A."). While discrimination against non-residents may be objectionable, it is not prohibited by the ADA. As this is the only form of discrimination the plaintiffs have alleged, they have failed to state a claim under the ADA.
As noted above, the amended Complaint also asserts that the City's issuance of the summonses, in spite of plaintiff's New Jersey disability permit, violated rights protected by 42 U.S.C. § 1983. In order to maintain a § 1983 action, plaintiff must allege 1) that the conduct complained of was committed by a person acting under color of state law, and 2) that the conduct complained of deprived her of rights, privileges or immunities secured by the Constitution or laws of the United States. See Pitchell v. Callan, 13 F.3d 545, 547 (2d Cir. 1994); Gelb v. Board of Elections, 950 F. Supp. 82, 84 (S.D.N.Y. 1996), aff'd, 125 F.3d 843 (2d Cir. 1997). The first part of this test is obviously satisfied in this case. The only remaining question is whether the City's parking rules deprived plaintiff of a Constitutional right, privilege or immunity.
1. Privileges and Immunities Clause
The fact that the Special Vehicle Permit is available only to those who live, work or attend school in New York City implicates the Privileges and Immunities Clause of Article IV of the Constitution. "When a challenged restriction deprives nonresidents of a privilege or immunity protected by this Clause, it is invalid unless '(1) there is a substantial reason for the difference in treatment; and (2) the discrimination practiced against nonresidents bears a substantial relationship to the State's objective.'" Barnard v. Thorstenn, 489 U.S. 546, 552, 103 L. Ed. 2d 559, 109 S. Ct. 1294 (1989) (quoting Supreme Court of New Hampshire v. Piper, 470 U.S. 274, 284, 84 L. Ed. 2d 205, 105 S. Ct. 1272 (1985)). The purpose of the Clause is to "prevent a State from discriminating against citizens of other ...