United States District Court, S.D. New York
OPINION & ORDER
S. ROMAN, UNITED STATES DISTRICT JUDGE
se plaintiff Patricia Gill ("Plaintiff')
initiated this action pursuant to 42 U.S.C. § 1983 for
alleged violations of the Americans with Disabilities Act
(the "ADA") and the Rehabilitation Act of 1973 (the
"Rehab Act") against Defendants Nyack College
("Nyack"), Dr. Andrew Mercurio, Dr. Deanna Kwan,
Dr. Carol Robles, Ms. Elona Collins, Dr. Charles Joanies, and
New York State Division of Human Rights ("NYSDHR")
(collectively "Defendants"). (See
Complaint, ("Compl.") (ECF No. 2).) Presently
before this Court is Defendants' motion to dismiss
Plaintiffs Complaint ("Defendants'Motion")
filed on October 6, 2017. (See ECF No. 17.) For the following
reasons, Defendants' Motion is GRANTED and the Complaint
is dismissed with prejudice.
following procedural facts-which are taken from the
Complaint, documents annexed thereto, and matters of which
the Court may take judicial notice-are construed in the light
most favorable to Plaintiff, as she is the non-moving
party. See, e.g., Kleinman v. Elan
Corp., 706 F.3d 145, 152 (2d Cir. 2013); Gonzalez v.
Hasty, 651 F.3d 318, 321 (2d Cir. 2011).
Plaintiffs second case before this Court seeking relief for
alleged discrimination against a college. Her first case was
initiated against Mercy College on August 29, 2017 and
dismissed by this Court on April 23, 2018. In this action,
Plaintiff sues Nyack, as well as various administrators at
Nyack and the NYSDHR, as an entity. (See Compl. at
7-11.) Plaintiff was formerly a student at Nyack,
and while enrolled, informed the institution that she suffers
from a specific form of dyslexia. (See Compl. at
18.) Plaintiff requested certain accommodations to assist her
in learning, but despite such requests, she began failing
classes and was ultimately asked to leave Nyack in late 2011.
(See Compl. at 26.)
Plaintiff was dismissed from Nyack, on April 24, 2012, she
filed a complaint with the United States Department of
Education, Office of Civil Rights ("OCR"),
alleging, inter alia, disability discrimination.
(See Aaron N. Solomon's Declaration in Support
of Defendants' Motion to Dismiss (ECF No. 17)
("Solomon Decl.") Ex. B.) OCR then conducted an
investigation, which concluded on October 19, 2012, and
resulted in a finding that there was insufficient evidence to
support Plaintiffs claim that Nyack discriminated against her
on the basis of her disability. (See id, Ex. D.)
Plaintiff then appealed the OCR's decision and such
appeal was denied on August 15, 2013. (See id, Ex.
F.) On October 15, 2013, Plaintiff filed a complaint of
discrimination with the NYSDHR, (set?/<£, Ex. H),
which was dismissed as untimely on April 11, 2014,
(seeid., Ex. I), as it was not brought within one
year of the alleged discriminatory conduct, (id.)
The decision nevertheless informed Plaintiff that such a
dismissal did not preclude her from initiating suit "in
any court of appropriate jurisdiction", provided that
she did so within the appropriate statute of limitations - in
state court, within three years of the alleged discriminatory
7, 2014, after both the OCR and NYSDHR reviewed and denied
Plaintiffs discrimination claim, Plaintiff filed an Article
78 Petition in New York State Supreme Court, County of New
York (the "Article 78 Court") to review the
NYSDHR's decision. (See id., Ex. J.)
Subsequently, on September 3, 2014, the Article 78 Court
dismissed Plaintiffs Petition finding no error in the
NYSDHR's determination that Plaintiffs claims were
untimely based on the one-year filing deadline. (See
id, Exs. K, L.) The Article 78 Court determined that,
for the purposes of establishing the one-year filing deadline
pursuant to Executive Law § 297.5, the "last act of
discrimination" occurred in February 2012; thus,
Plaintiffs NYSDHR complaint would have been timely if filed
before February 2013. (Id, Ex. L at 2.) Plaintiff
then appealed the decision to the Appellate Division. The
Appellate Division affirmed the dismissal of Plaintiffs
Article 78 Petition holding that Plaintiff failed to file her
NYSDHR complaint of discrimination within the time afforded
by Executive Law § 297.5. See Matter of GUI v. Nyack
College, 136 A.D.3d 525, 525 (1 st Dep't. 2016).
Plaintiffs motion for re-argument before the Appellate
Division was denied on June 14, 2016, (see id., Ex.
M), as was her motion for leave to appeal to the Court of
Appeals on February 9, 2017, (see id., Ex. N.)
March 9, 2017, Plaintiff initiated the present action
alleging claims for disability discrimination and asking this
Court to reverse the various state court decisions.
Defendants now seek dismissal of her Complaint.
ON MOTION TO DISMISS
motion to dismiss pursuant to Fed.R.Civ.P. 12(b)(1) for lack
of subject matter jurisdiction, dismissal is proper
"when the district court lacks the statutory or
constitutional power to adjudicate it." Nike, Inc.
v. Already, LLC, 663 F.3d 89, 94 (2d Cir. 2011) (quoting
Makarova v. United States, 20\ F.3d 110, 113 (2d
Cir. 2000)). A plaintiff be ars the burden of proving subject
matter jurisdiction by preponderance of the evidence.
Liranzo v. United States, 690 F.3d 78, 84 (2d Cir.
2012); Morrison v. Nat'l Austl Bank Ltd., 547
F.3d 167, 170 (2d Cir. 2008) (quoting Makarova, 201
F.3d at 113). "Jurisdiction must be shown affirmatively,
and that showing is not made by drawing from the pleadings
inferences favorable to the party asserting it."
Shipping Fin. Servs. Corp. v. Drakos, 140 F.3d 129,
131 (2d Cir. 1998). Nevertheless, the Court must accept as
true all the facts alleged in the complaint. Conyers v.
Rossides, 558 F.3d 137, 143 (2d Cir. 2009). The Court
may consider, in addition to the factual allegations in the
complaint, "[t]he documents attached to the complaint as
exhibits, and any documents incorporated in the complaint by
reference." McCarthy v. Dun & Bradstreet
Corp., 482 F.3d 184, 191 (2d Cir. 2007).
lacks subject matter jurisdiction if plaintiff s claim are
barred by either the Rooker-Feldman doctrine or res
judicata. The Rooker-Feldman doctrine prohibits
federal cases "that essentially amount to appeals of
state court judgments." Vossbrinckv. Accredited Home
Lenders, Inc., 113 F.3d 423, 426 (2d Cir. 2014).
Whereas, "[u]nder res judicata, a final judgment on the
merits of an action precludes the parties or their privies
from relitigating issues that were or could have been raised
in that action." Allen v. McCurry, 449 U.S. 90,
94 (1980) (citing Cromwell v. SacCty., 94 U.S.
base their motion to dismiss on four arguments. (See
generally Defendants' Brief in Support of their
Motion to Dismiss ("Defs. Br.") (ECF No. 19).) A
threshold argument is that the Rooker-Feldman
doctrine renders this Court without subject matter
jurisdiction to hear Plaintiffs case. (Id. at 8-10.)
Defendants also contend that, irrespective of whether this
Court has jurisdiction, Plaintiffs claims are barred by res
judicata. (Id. at 10-11.) In the alternative,
Defendants move to dismiss on grounds that Plaintiffs claims
are time-barred and that the Complaint otherwise fails to
state a claim for relief. (Id. at 7-8, 11-14.) In
light of this Court's determination, infra I,
that it lacks the authority to adjudicate Plaintiffs claims,
it declines to ascertain whether dismissal pursuant to
Fed.R.Civ.P. 12(b)(6) is proper.