The opinion of the court was delivered by: Wexler, District Judge.
Plaintiff commenced this case alleging discrimination based
upon his learning disabilities while a student at the School of
Nursing at Adelphi University ("Adelphi"). Named as Defendants
are Adelphi University ("Adelphi" or the "University"), the
Adelphi University Board of Trustees ("Trustees"), James A.
Norton, the former acting president of Adelphi University
("Norton"), Dr. Matthew Goldstein, the current President of
Adelphi University ("Goldstein"), Caryle G. Wolahan, the Dean of
the Adelphi School of Nursing ("Wolahan") and Carol A. Lomanno,
an associate professor at the Adelphi School of Nursing
("Lomanno").*fn1 Defendants Goldstein, Norton, Wolahan, Lomanno
and the Trustees are named in their individual and official
I. The Allegations Of The Complaint
Plaintiff's amended complaint sets forth four separate causes
of action against the University, the Trustees and defendants
Norton, Goldstein and Wolahan. Specifically, each of these
defendants is alleged to have violated: (1) the Americans With
Disabilities Act, 42 U.S.C. § 12101, et seq. (the "ADA"); (2)
Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794 et
seq. (the "Rehabilitation Act"); (3) the New York Education Law
and, (4) a contract between defendants and plaintiff. Against
defendant Lomanno, plaintiff alleges three causes of action.
Lomanno is alleged to have violated: (1) the ADA; (2) the
Rehabilitation Act and, (3) the New York Education Law. Lomanno
is the sole defendant who is not alleged to have breached a
contract with plaintiff.
Presently before the court are the motions of defendants
Norton, Goldstein, Wolahan, Lomanno and the Trustees (the
"Individual Defendants"), to dismiss the complaint on various
grounds. First, all Individual Defendants seek dismissal of the
complaint on the ground that individuals cannot be held
personally liable under the ADA or the Rehabilitation Act.
Second, all Individual Defendants seek dismissal of the breach of
contract claims on the ground that no contractual relationship
between plaintiff and defendants either exists or has been
pleaded. Third, all Individual Defendants seek dismissal of any
claim brought pursuant to the New York State Education Law on the
ground that plaintiff has pleaded no specific violation of any
provision of that law or facts in support thereof. Fourth, the
Trustees seek dismissal of the state law claims on the ground
that the Trustees are immune from liability under section 720-a
of the New York Not-For-Profit Corporation Law. Finally,
defendants Norton and Goldstein seek dismissal of all claims on
the ground that they have never been properly served with
process. The court considers each motion below.
Defendants' motions are made in the context of a motion to
dismiss pursuant to Rule 12(b)(6) of the Federal Rules of Civil
Procedure. A motion to dismiss is properly granted only if "it
appears beyond doubt that the plaintiff can prove no set of facts
in support of his claim which would entitle him to relief."
Conley v. Gibson, 355 U.S.
41, 45-46, 78 S.Ct. 99, 2 L.Ed.2d 80 (1957); Harsco v. Segui,
91 F.3d 337, 341 (2d Cir. 1996); Bernheim v. Litt, 79 F.3d 318,
321 (2d Cir. 1996). When considering a motion to dismiss for
failure to state a claim, the court can consider only the facts
as set forth in the complaint or documents attached thereto. When
considering the facts pled, the court must accept as true all
factual allegations in the complaint. All reasonable inferences
must be drawn in favor of the non-moving party. Hamilton Chapter
of Alpha Delta Phi, Inc. v. Hamilton College, 128 F.3d 59, 62
(2d Cir. 1997). A complaint should not be dismissed "simply
because a plaintiff is unlikely to succeed on the merits."
Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 40 L.Ed.2d
90 (1974). With these principles in mind, the court turns to
II. The Motions To Dismiss
A. Individual Liability Under the ADA and the Rehabilitation
All Individual Defendants move to dismiss the ADA and
Rehabilitation Act claims on the ground that individuals cannot
be held personally liable under these statutes. In support of
their argument for dismissal, defendants rely on Tomka v. Seiler
Corp., 66 F.3d 1295 (2d Cir. 1995), wherein the Second Circuit
held that individual employees cannot be held personally liable
as "employers" under Title VII of the Civil Rights Act. See
Tomka, 66 F.3d at 1313. The Second Circuit in Tomka
interpreted the term "employer," under Title VII of the Civil
Rights Act, 42 U.S.C. § 2000e ("Title VII"). That statute defines
"employer" as "a person . . . who has fifteen or more employees .
. . and any agent of such a person." 42 U.S.C. § 2000e(b).
In Tomka, the Second Circuit rejected the notion that the
"and any such agent" clause of the definition of employer was
intended to impose individual liability upon all agents of
employers. Instead, the court interpreted this clause as
establishing respondeat superior liability for the actions of
agents. The court reasoned that when Congress limited Title VII
liability to employers with fifteen or more employees, it
intended to shield individuals from liability. It would be
anomalous, then, to allow for individual liability under title
VII. Id. at 1313-1314.
Courts interpreting employment discrimination cases brought
pursuant to the ADA have looked to Tomka to decide whether
individual liability exists under the ADA. In this circuit,
Tomka's analysis has been applied consistently to hold that
there is no individual liability for employment discrimination
under the ADA. See, e.g., Corr v. MTA Long Island Bus,
27 F. Supp.2d 359, 369-70 (E.D.N.Y. 1998); Harrison v. Indosuez,
6 F. Supp.2d 224, 229 (S.D.N.Y. 1998); Lane v. Maryhaven Center of
Hope, 944 F. Supp. 158, 160-162 (E.D.N.Y. 1996); Cerrato v.
Durham, 941 F. Supp. 388 (S.D.N.Y. 1996); Yaba v. Cadwalader,
Wickersham & Taft, 931 F. Supp. 271 (S.D.N.Y. 1996).
Denying claims for individual liability under the ADA, the
foregoing courts rely on the fact that the statutory definitions
of the term "employer" are the same under Title VII as under the
ADA. Compare 42 U.S.C. § 2000e(b) with
42 U.S.C. § 12111(5)(A). This, coupled with the fact that courts apply
similar standards and reasoning to discrimination cases brought
pursuant to these two statutes, see, e.g., EEOC v. Amego, Inc.,
110 F.3d 135, 145 n. 7 (1st Cir. 1997); AIC Security
Investigations, Ltd. 55 F.3d at 1280; Corr, 27 F. Supp.2d at
370 n. 8, has led to the overwhelming weight of authority
applying Tomka to dismiss claims of employment discrimination
seeking to hold individuals personally liable under the ADA.
This is not a case alleging employment discrimination in
violation of Title I of the ADA, but instead, is brought pursuant
to Title III of the ADA — the same statute construed in ADA
employment discrimination cases ...