Summary
In Lipton, supra., a dental student sued the New York University College of Dentistry alleging violations of the ADA and Rehabilitation Act in dismissing him from the dental program.
Summary of this case from Doe v. St. Louis Univ. Sch. of Med.Opinion
No. 11 Civ. 2535 (TPG).
2012-06-13
Herrick LIPTON, Plaintiff, v. NEW YORK UNIVERSITY COLLEGE OF DENTISTRY and Dr. Andrew Spielman, Defendants.
William David Frumkin, Howard Todd Schragin, Sapir & Frumkin LLP, White Plains, NY, for Plaintiff. Nancy Alene Kilson, New York University, New York, NY, for Defendants.
William David Frumkin, Howard Todd Schragin, Sapir & Frumkin LLP, White Plains, NY, for Plaintiff. Nancy Alene Kilson, New York University, New York, NY, for Defendants.
OPINION
THOMAS P. GRIESA, District Judge.
Plaintiff Herrick Lipton brings this action against defendants New York University College of Dentistry (“NYUCD”) and Dr. Andrew Spielman, its associate dean for academic affairs, for alleged violations of federal, state, and local laws banning discrimination against disabled individuals.
Defendants move under Fed.R.Civ.P. 12(b)(6) to dismiss the federal counts for failure to state a claim. Should the court grant this motion, defendants further move to dismiss the remaining state law claims for lack of subject matter jurisdiction. Both motions are granted.
The Complaint
The following facts are drawn from the complaint and assumed to be true for purposes of this motion.
Plaintiff entered NYUCD's predoctoral dentistry program (“DDS program”) in August of 2000. Had plaintiff completed the program on schedule, he would have graduated in 2004. However, plaintiff was unable to successfully complete his first academic year, which plaintiff alleges was the result of his father's terminal illness. Plaintiff was then dismissed from the DDS program, but he successfully appealed this decision and completed the first-year curriculum on his second attempt in June 2002. Thereafter, he completed the second year of the curriculum on his first attempt in June 2003.
In July 2003, plaintiff took Part I of the National Board Dental Examination (“NBDEP1”) to fulfill a degree requirement for NYUCD. Unfortunately, he failed some sections of the test and was required to retake them. In the meantime, he began his third academic year at NYUCD in August 2003.
During that year, plaintiff prepared to retake the NBDEP 1. He also participated in clinical work, for which he earned praise and high marks from his supervising professors. However, plaintiff failed the NBDEP 1 on his second attempt.
Plaintiff began his fourth academic year at NYUCD in August 2004. In May 2005, plaintiff underwent a neuropsychiatric evaluation, as a result of which, according to complaint ¶ 27:
Plaintiff was diagnosed with a learning disability, specifically a reading disorder which hindered his ability to accurately read and comprehend information under time constraints. The evaluation noted that Plaintiff suffered from anxiety and apprehension such that he would be unable to pass the exam under the normal time constraints. The disability (which was exacerbated by time constraints) placed Plaintiff at a disadvantage in successfully completing the test. The evaluation recommended for Plaintiff to receive additional time to alleviate the stress and anxiety of the exam, which would serve to equalize him with the other candidates sitting for the exam.
The complaint (¶ 28) goes on to allege that, after requesting an accommodation from test administrators:
Plaintiff, with the accommodation, immediately passed all parts of NBDEP 1 with a time-and-a-half accommodation following the conclusion of his fourth academic year.
It also appears that plaintiff was afforded this same time-and-a-half accommodation when he took all the tests which are relevant to the present case.
The complaint does not explicitly state that the plaintiff received time-and-a-half on each test occasion discussed infra, but ¶ 56 of the complaint alleges that NYUCD's actions “rendered the time-and-a-half accommodation meaningless,” implying that plaintiff in fact received such an accommodation.
During plaintiff's fourth academic year, he was also required to take the North East Regional Board of Dental Examiners exam (“NERB”), which he passed. Having completed the academic coursework of the DDS program, plaintiff participated in its graduation ceremony on May 12, 2005.
Plaintiff, however, had not yet completed all of the requirements for his degree. There remained Part II of the National Board Dental Examination (“NBDEP2”). Pursuant to NYUCD policy, all dental students (beginning with the class of 2004) are required to pass this test to graduate. That same policy specifies that candidates taking the NBDEP2 after finishing their academic coursework must re-matriculate for the academic year when the exam will be taken. For plaintiff, this meant mainly the payment of $3500 in fees. Lastly, the policy requires such students to pass the NBDEP2 within fourteen months of finishing their coursework. In contrast, until recently the American Dental Association, which administers the NBDEP2 through a sub-agency, permitted eligible examinees to retake the NBDEP2 an unlimited number of times so long as the examinee waited the requisite interval between attempts.
It now requires that examinees pass the test within five years of their first test attempt or five attempts, whichever comes first. But only test attempts on or after January 12, 2012 trigger this rule.
Plaintiff paid $3,500 to re-matriculate in September 2005, and he took the NBDEP2 that very month. Unfortunately, plaintiff failed the exam and was required by American Dental Association protocol to wait at least ninety days before retaking it. The complaint (¶ 38) offers the following explanation for this outcome:
Anxiety and stress due to the short preparation period, financial concerns, and the constant threat of dismissal, from the re-matriculation exacerbated his disability and hindered his ability to concentrate during the examination.
In September 2006, plaintiff again paid $3,500 to re-matriculate and take the NBDEP2, and in December 2006, he again took and failed the test. The complaint (¶ 41) alleges:
Anxiety about the financial constraints re-matriculation was placing on his family, the constant threat of dismissal, and concerns about how this financial burden could limit his continued eligibility to sit for the exam, exacerbated his disability and prevented him from successfully completing NBDEP2 in April 2007.
Plaintiff re-matriculated a third time in September and took the NBDEP2 a third time in April 2007. Again he failed. He alleges (¶ 44):
Again, concerns about the constant threat of dismissal, his financial situation and his inability to afford the costs of re-matriculation prevented Plaintiff from passing NBDEP2.
Plaintiff was then dismissed from the DDS program on May 14, 2007, for failing to pass the NBDEP2 within the time allotted by NYUCD policy. Plaintiff appealed that decision internally, submitting a letter informing the internal appeals committee of his reading disorder and other issues impeding his performance. Plaintiff was then granted an additional year, until June 2008, to pass the NBDEP2 or “face permanent dismissal from the program” (Compl. ¶ 49).
Since plaintiff had failed the NBDEP2 three times, American Dental Association rules required him to wait a full twelve months, until April 2008, before retaking the exam for a fourth time. According to the complaint (¶ 54):
Plaintiff sat for the exam in May 2008 under severe emotional stress and anxiety over his potential dismissal due to the arbitrary time constraints placed on him by NYUCD which again served to exacerbate his disability. He failed NBDEP2 by three (3) points.
Plaintiff was dismissed from the DDS program on June 27, 2008. Plaintiff again appealed his dismissal, and on appeal, he requested “an accommodation, in which he would be given additional opportunities to take the exam due to his learning disability, specially his troubles with critically reading and comprehending the exam within the time constraints” (Compl. ¶ 56). The complaint (¶ 56) goes on to state the following rationale for the requested accommodations:
Plaintiff's disability and its effect on his ability to take the exam was exacerbated by NYUCD's repeated threats of dismissal, its varying position in terms of the number of attempts he would be provided to retake the exam, the significant costs of repeated re-matriculation, and NYUCD's wavering position with regard to the number of times he could take the exam and whether he would be dismissed, rendered the time-and-a-half accommodation meaningless. NYUCD was well aware that Plaintiff's disability was exacerbated by time pressure of any manner, which increased his anxiety and apprehension, and ultimately rendered him unable to focus and critically read during the exam.
But NYUCD held firm in its decision to dismiss plaintiff from the DDS program, leading to the present case.
Based on these allegations, plaintiff makes seven claims. First, plaintiff alleges that NYUCD violated the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12182(a), 12112(b)(5)(A) by failing to provide the requested accommodations. Second, plaintiff alleges that NYUCD, an entity that receives federal assistance, violated the Rehabilitation Act, 29 U.S.C. § 794(a), by failing to accommodate his disability. Plaintiff's next four counts allege analogous violations of New York State Human Rights Law, N.Y. Exec. Law § 296(6), and New York City Human Rights Law, N.Y.C. Admin. Code § 8–102(16). Two of the counts are against NYUCD, and two are against individual defendant Spielman. Plaintiff's final count alleges that NYUCD's inconsistent statements concerning the number of times plaintiff would be allowed to take the NBDEP2 constituted deceptive acts or practices in the conduct of business in violation of N.Y. Gen. Bus. Law § 349.
The Prayer for Relief
In addition to damages and attorneys' fees, plaintiff seeks injunctive relief as follows:
101. Reinstatement to NYUCD and an accommodation permitting Plaintiff to retake NBDEP2, without re-matriculation, an unlimited number of times over a reasonable period of time, pursuant to applicable American Dental Association guidelines, thereby providing him with a reduced-stress environment in which he can concentrate and focus effectively.
102. Waiver of graduation requirements, based on his disability, which would enable him to retake NBDEP2 an unlimited number of times, pursuant to applicable American Dental Association guidelines.
The Present Motions
Defendants now move to dismiss the two federal counts on the ground that the accommodations now requested by plaintiff are unreasonable as a matter of law, since they would force NYUCD to fundamentally alter academic requirements. Defendants further argue that since the two federal claims should be dismissed, the court should decline to exercise supplemental jurisdiction over the state law claims per 28 U.S.C. § 1367(c)(3).
Discussion
To survive a motion to dismiss under Fed.R.Civ.P. 12(b)(6), a complaint must plead sufficient facts to state a claim to relief that is plausible on its face. Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009). In deciding such a motion, a court must accept as true the facts alleged in the complaint, but it should not assume the truth of legal conclusions. Iqbal, 129 S.Ct. at 1950. A court must also draw all reasonable inferences in the plaintiff's favor, and it may consider documents attached to the complaint, incorporated by reference into the complaint, or known to and relied on by the plaintiff in bringing the suit. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir.2007).
* * *
The ADA was passed to “provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Titles II and III of the ADA, upon which plaintiff relies, forbid the denial of public services and public accommodations, respectively, to otherwise qualified individuals by reason of their disability. See Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d Cir.2003). The Rehabilitation Act similarly provides that “no otherwise qualified individual with a disability in the United States ... shall, solely by reason of her or his disability, be excluded from the participation in, be denied the benefits of, or be subjected to discrimination under any program or activity receiving Federal financial assistance.” 29 U.S.C. § 794(a).
The ADA was modeled upon the Rehabilitation Act and due to the similarities between the two, claims under both can be analyzed identically unless a difference between the statutes is germane to the case. See Weixel v. Bd. of Educ., 287 F.3d 138, 146 n. 6 (2d Cir.2002). Here, plaintiff's claim under the Rehabilitation Act differs from that under the ADA only insofar as plaintiff seeks damages from NYUCD under the Rehabilitation Act—a remedy not available under the ADA. That difference, however, does not implicate the present motion, so the court will henceforth treat these claims in tandem.
To state a claim under the Acts, plaintiff must plausibly allege that (1) he is a qualified individual with a disability; (2) the defendants are subject to one of the Acts; and (3) he was denied the opportunity to participate in or benefit from defendants' services, programs, or activities by reason of his disability. See Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 85 (2d Cir.2004).
A qualified individual with a disability is one who “with or without reasonable modifications to rules, policies, or practices ... meets the essential eligibility requirements for the receipt of services or the participation in programs or activities provided” by the covered entity. 42 U.S.C. 12131(2). Said individual must also have a disability, which the ADA defines as “(A) a physical or mental impairment that substantially limits one or more major life activities of such individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment.” Mastrolillo v. Connecticut, 352 Fed.Appx. 472, 474 (2d Cir.2009).
According to the complaint, plaintiff was qualified to enroll in the DDS program and to take the courses offered there. The complaint thus successfully alleges that plaintiff was a qualified individual within the meaning of the law.
The complaint also alleges another element necessary to the cause of action—a disability. This disability is defined in ¶ 27 of the complaint, which has been quoted above, as being “a reading disorder which hindered his ability to accurately read and comprehend information under time constraints.” Later parts of the complaint, which have also been quoted in the opinion (¶¶ 41, 54, 56), state that various circumstances exacerbated the disability defined in ¶ 27. For the purposes of the present motion, the court accepts the idea that plaintiff suffered an impairment that substantially limited a major life function—to wit, reading.
As for the second factor, NYUCD concedes that it is a public accommodation offering a service under 42 U.S.C. § 12182 and that it is a program receiving federal financial assistance for purposes of the Rehabilitation Act.
Thus the present motion hinges on whether plaintiff plausibly alleges that he was unlawfully denied the opportunity to continue participating in NYUCD's DDS program by reason of his disability. Plaintiff can do so using one of three theories: “(1) intentional discrimination (disparate treatment); (2) disparate impact; and (3) failure to make a reasonable accommodation.” Fulton v. Goord, 591 F.3d 37, 43 (2d Cir.2009). Plaintiff has chosen the third route.
Reasonable accommodations are “affirmative accommodations to ensure that facially neutral rules do not in practice discriminate against individuals with disabilities.” Henrietta D., 331 F.3d at 275. 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.” Staron v. McDonald's Corp., 51 F.3d 353, 356 (2d Cir.1995).
A defendant, however, “need not make an accommodation at all if the requested accommodation would fundamentally alter the nature of the service, program, or activity.” Powell v. Nat'l Bd. of Med. Exam'rs, 364 F.3d 79, 88 (2d Cir.2004). Moreover, a court should defer to an academic institution's decision that a particular accommodation is not reasonable when it has “diligently assessed the available options and then made an academic judgment ... that to accommodate the student would work a change in the substance of its ... program, and impose an undue hardship on its academic program.” Id. Indeed, institutions of higher learning “must have the widest range of discretion in making judgments as to the academic performance of students and their entitlement to promotion or graduation.” Board of Curators, Univ. of Mo. v. Horowitz, 435 U.S. 78, 96 n. 6, 98 S.Ct. 948, 55 L.Ed.2d 124 (1978).
Here, defendants claim that plaintiff requested a waiver of a graduation requirement, and that NYUCD determined that such a waiver would substantially and unreasonably alter its program. Accordingly, they argue that the court should defer to this academic decision and dismiss plaintiff's complaint. Plaintiff, on the other hand, claims that the accommodations he requests are reasonable. He argues that he is asking nothing more than an accommodation that is consistent with guidelines offered by the American Dental Association.
It is important at this point to clarify that as an academic institution, NYUCD is free to impose standards more stringent than those of the American Dental Association. It is not the business of the court to adjudge the wisdom of generally-applicable academic policies. Thus NYUCD acted within its rights when it created policies requiring that: a) all students pass the NBDEP2; b) all students taking the NBDEP2 after completing academic coursework rematriculate and pay tuition to sit for the exam; and c) all re-matriculating students pass the NBDEP2 in a limited period of time.
The only question before the court is whether plaintiff's complaint—which alleges that defendants, despite knowing of plaintiff's reading disorder and his requested accommodations, dismissed plaintiff for failing to pass the NBDEP2 within the requisite time period—states a plausible claim of disability discrimination under the ADA and the Rehabilitation Act. The court holds that it does not, because the accommodations that plaintiff requests are unreasonable as a matter of law.
Plaintiff has already received an accommodation of his disability in the form of time-and-a-half to complete the exams he has taken. He is now requesting additional accommodations, as specified in the prayer for relief in the complaint:
101. Reinstatement to NYUCD and an accommodation permitting Plaintiff to retake NBDEP2, without re-matriculation, an unlimited number of times over a reasonable period of time, pursuant to applicable American Dental Association guidelines, thereby providing him with a reduced-stress environment in which he can concentrate and focus effectively.
102. Waiver of graduation requirements, based on his disability, which would enable him to retake NBDEP2 an unlimited number of times, pursuant to applicable American Dental Association guidelines.
Thus, among other things, plaintiff's requested accommodations change the focus from the time allowed for an individual test to the time—in terms of months or years, and number of opportunities—to take and pass the NBDEP2.
Of course, NYUCD has already afforded plaintiff almost three years beyond his projected 2005 graduation date to take the test, and he has taken the test four times. Whether or not NYUCD's actions were accommodations to plaintiff's disability within the meaning of the ADA and the Rehabilitation Act, these extensions of time and additional opportunities to take the test occurred.
In any event, plaintiff claims that the law requires more. The court believes that these claims should be ruled on as a matter of law on the present motion.
The court holds that the requested accommodations are unreasonable in several respects. First, they would alter important academic policies to a great degree. Plaintiff's requested accommodations would indefinitely extend his time to complete NYUCD's academic courses, in defiance of NYUCD policy. NYUCD has a right to impose a time in which its graduation requirements must be completed. Such time periods have the obvious and important purpose of contributing to the discipline and rigor desirable in a professional education. Plaintiff requests a “reasonable” period of time in which to take the NBDEP2, but the complaint necessarily implies that the two-and-a-half year period already afforded him was not reasonable. The court disagrees. The extension sought by plaintiff amounts to, in plaintiff's words, a “waiver of graduation requirements,” which under the circumstances of the case, the law does not impose on NYUCD.
Second, the requested accommodations bear a tenuous relationship to plaintiff's disability. The earlier time-and-a-half accommodation clearly addressed a “reading disorder which hindered his ability to accurately read and comprehend information under time constraints.” The accommodations now requested do not appear to deal with the time constraints referred to in the finding of disability.
Third, the requested accommodations concern generalized anxiety, implicating not just plaintiff's disability but various circumstances upsetting to plaintiff, including the cost of re-matriculation at NYUCD and his fear of failing the NBDEP2 and being dismissed.
Fourth, certain aspects of plaintiff's requested accommodations are clearly not contemplated by the ADA. Plaintiff seeks to retake the NBDEP2 “without re-matriculating,” i.e. without paying the $3500 fee to re-matriculate. The ADA cannot be read to mandate a waiver of fees in the present case, where the fees have no bearing on the disability alleged. And, as already indicated, the same is true, under the circumstances of the present case, with regard to plaintiff's request for a “waiver of graduation requirements.”
Thus, the complaint fails to state a valid claim for disability discrimination under the ADA and Rehabilitation Act, and his federal claims must be dismissed. Furthermore, the court declines to exercise supplemental jurisdiction over plaintiffs state-law claims, as there are no longer any federal claims to support original jurisdiction. See28 U.S.C. § 1367(c)(3).
Conclusion
For the foregoing reasons, defendants' motion to dismiss is granted.
SO ORDERED.
OPINION
Plaintiff Herrick Lipton brings this action against defendants New York University College of Dentistry (“NYUCD”) and Dr. Andrew Spielman, its associate dean for academic affairs, for alleged violations of federal, state, and local laws banning discrimination against disabled individuals.
On March 16, 2012, the court granted defendants' motion to dismiss the action pursuant to Fed.R.Civ.P. 12(b)(6). Plaintiff now moves for reconsideration of that decision. In addition, plaintiff seeks leave to amend his complaint to cure the deficiencies identified by the court.
Background
The court assumes familiarity with the facts of the case, an account of which can be found in the court's prior opinion granting defendants' motion to dismiss. See Lipton v. N.Y. Univ. College of Dentistry, 865 F.Supp.2d 403, 404–07, 2012 WL 896210, at *1–3 (S.D.N.Y.2012).
The Present Motion
Plaintiff moves for the court to reconsider that decision in light of plaintiff's proposed amended complaint.
Plaintiff proposes several amendments. Most significantly, he seeks to modify his prayer for injunctive relief. He now requests (Am. Compl. ¶ 101, changes bolded)
Reinstatement to NYUCD and an accommodation permitting Plaintiff to retake NBDEP2, within the guidelines of the American Dental Association applicable to persons taking the examination after January 12, 2012 without the threat of dismissal, thereby providing him with a reduced-stress environment in which he can concentrate and focus effectively.
As mentioned by the court in its prior opinion, the new American Dental Association guidelines provide that an examinee must pass the NBDEP2 within five years or five attempts, whichever comes first. Thus plaintiff now requests an accommodation permitting him to rematriculate at NYUCD to retake the NBDEP2 up to five times within five years.
This form of relief differs from that sought by plaintiff in his initial complaint in two respects. Plaintiff had previously sought to take the NBDEP2 (Compl. ¶ 101) “an unlimited number of times over a reasonable period of time.” Plaintiff had also sought to take the NBDEP2 “without rematriculation,” i.e. without having the pay the fees—now around $3500 per academic year—associated with rematriculation.
Plaintiff also proposes to amend the following paragraph concerning his initial diagnosis:
27. Prior to the conclusion of his fourth year, on the advice of his academic advisor, Dr. Anthony Palatta (“Dr. Palatta”), Plaintiff underwent a Neuropsychiatric Evaluation on May 16th and 18th 2005. Plaintiff was diagnosed with a learning disability, specifically a reading disorder which hindered his ability to accurately read and comprehend information under time constraints. The evaluation noted that Plaintiff suffered from anxiety and apprehension such that he would be unable to pass the exam under normal time constraints. The disability (which was exacerbated by time constraints) placed Plaintiff at a disadvantagein successfully completing the test. The evaluation recommended for Plaintiff to receive additional time to alleviate the stress and anxiety of the exam, which would serve to equalize him with the other candidates sitting for the exam. This recommendation also contemplated the stress and anxiety created by the time period limitations in which he had to prepare for, take and pass the examination; i.e., within the one year required by NYUCD to pass the NBDEP2.
Plaintiff then seeks to amend paragraphs 38, 41, 44—which concern, respectively, the factors that led plaintiff to fail the NBDEP2 in September 2005, December 2006, and April 2007—to introduce an identical clause into each:
38. Mounting financial constraints associated with the rematriculation, forced Plaintiff to sit for NBDEP2 in September 2005, just one (1) month after he passed NBDEP 1. Anxiety and stress due to the short preparation period, financial concerns, the constant threat of dismissal, and the requirement that he pass the examination within the time constraints imposed by NYUCD (i.e., within his one year rematriculation period) exacerbated his disability, and hindered his ability to concentrate during the examination.
41. Plaintiff sat for NBDEP2 again in December 2006. Anxiety about the financial constraints rematriculation was placing on his family, the constant threat of dismissal, concerns about how this financial burden could limit his continued eligibility to sit for the exam, and the requirement that he pass the examination within the time constraints imposed by NYUCD (i.e., within his one year rematriculation period) exacerbated his disability, and prevented him from successfully completing NBDEP2. Again, pursuant to The American Dental Association rules, Plaintiff was required to wait ninety (90) days before sitting for the exam again.
44. Again, concerns about the constant threat of dismissal, his financial situation, his inability to continue to afford the costs of rematriculation, and the requirement that he pass the examination within the time constraints imposed by NYUCD (i.e., within his one year rematriculation period) exacerbated his disability, and prevented Plaintiff from passing NBDEP2 in April 2007.
Lastly, plaintiff seeks to amend paragraph 56 of the complaint, which concerns plaintiff's formal request for a reasonable accommodation following his fourth unsuccessful attempt to pass the NBDEP2 in May 2008:
56. Plaintiff appealed NYUCD's decision on July 7, 2008 and requested an accommodation, in which he would be given additional opportunities to take the exam due to his learning disability, especially his troubles with critically reading and comprehending the exam within the time constraints. Plaintiff's disability and its effect on his ability to take the exam was exacerbated by NYUCD's repeated threats of dismissal, its varying position in terms of the number of attempts he would be provided to retake the exam, the significant costs of repeated rematriculation, NYUCD's wavering position with regard to the number of times he could take the exam, the time constraints placed upon him within which he was able to take the examination, and whether he would be dismissed, rendered the time-and-a-half accommodation meaningless. NYUCD was well aware that Plaintiff's disability was exacerbated by time pressure and constraints, of any manner, which increased his anxiety and apprehension, and ultimately rendered him unable to focus and critically read during the exam.
Discussion
The court finds no basis for reconsidering its ruling aside from dealing with plaintiff's request for leave to amend his complaint. Accordingly, the court will treat the instant motion for reconsideration as a motion for leave to amend the complaint.
Under Fed. R. Civ. P 15(a), leave to amend a complaint “shall be freely given when justice so requires.” “When a motion to dismiss is granted, the usual practice is to grant leave to amend the complaint.” Ronzani v. Sanofi S.A., 899 F.2d 195, 198 (2d Cir.1990) (internal quotation omitted). However, the court should also take into account “the competing interest of protecting the finality of judgments and the expeditious termination of litigation.” Bellikoff v. Eaton Vance Corp., 481 F.3d 110, 118 (2d Cir.2007) (internal quotation omitted).
In any event, leave to amend should be denied when the proposed amended complaint would be futile. See Absolute Activist Value Master Fund Ltd. v. Ficeto, 677 F.3d 60 (2d Cir.2012). To make this determination, the court employs the standard that governs a motion to dismiss. Eaves v. Designs for Fin., Inc., 785 F.Supp.2d 229, 268 (S.D.N.Y.2011). Thus leave to amend the complaint will only be given where the amended complaint pleads sufficient facts to state a claim to relief that is plausible on its face. See Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007); Ashcroft v. Iqbal, 556 U.S. 662, 129 S.Ct. 1937, 1949–50, 173 L.Ed.2d 868 (2009).
The court dismissed plaintiff's prior complaint because it requested accommodations that were unreasonable as a matter of law in four respects: 1) the requested accommodations would have wrought a substantial change in NYUCD's academic program; 2) the requested accommodations bore a tenuous relationship to the disability alleged, in that the disability concerned problems with contemporaneous information processing and the requested accommodation concerned the anxiety caused by the knowledge of general deadlines for the completion of graduation requirements; 3) the requested accommodations implicated a range of phenomena, including financial anxiety and fear of dismissal; and 4) the requested accommodations included demands for certain forms of relief—namely re-enrollment without the associated cost of rematriculation—that clearly fell outside the purview of the Rehabilitation Act and the Americans with Disabilities Act.
Plaintiff's amended complaint rectifies this deficiency by withdrawing the request for a fee waiver. Plaintiff now states that he is willing to bear the fees ($3500 as of plaintiff's most recent rematriculation) associated with retaking the NBDEP2 as an NYUCD student. The court, however, did not rest its holding on this particular aspect of plaintiff's prayer for relief. Rather, plaintiff's overly broad prayer for relief emblematized the more fundamental deficiencies of the complaint.
Plaintiff's proposed amendments do not change the substance of his claim: he still requests a substantial extension of the time period in which he may take (and fail without consequence) the NBDEP2 as an NYUCD student. The proposed amended complaint provides a definite timeframe for this period—five years—but the requested accommodation would still effectively eliminate NYUCD's academic policies concerning the amount of time in which a DDS candidate must pass the NBDEP2 to receive a degree. Accordingly, the proposed complaint fails to state a claim for the very reasons the original complaint failed to state a claim.
As the court previously noted, NYUCD has the right to impose degree requirements—including requirements concerning the amount of time for its students to pass exams—that are more stringent than those used by the American Dental Association. These requirements bear a clear relationship to important academic values. Thus plaintiff's proposed amended complaint, like the original complaint, requests an accommodation that would substantially change NYUCD's graduation requirements.
Moreover, the proposed amended complaint, like the original complaint, fails to link plaintiff's anxiety about the length of time allotted to pass the NBDEP2 to his alleged disability. The amended complaint merely adds that the neuropsychiatric evaluation that diagnosed plaintiff with a reading disorder “also contemplated the stress and anxiety created by the time period limitations in which he had to prepare for, take and pass the examination; i.e., within the one year required by NYUCD to pass the NBDEP2.” This sentence does not explain how plaintiff's anxiety about a time deadline relates to his reading disorder. This sentence does not even say which deadline, if any, the evaluation recommended lifting. Rather, the sentence merely states that plaintiff's diagnostician considered an additional circumstance. This threadbare allegation does not affect court's opinion that the requested accommodation bears an unreasonably tenuous relationship to plaintiff's diagnosed disability.
Lastly, plaintiff has amended his complaint to allege, in several different paragraphs, that “the requirement that he pass the examination within the time constraints imposed by NYUCD (i.e., within his one year rematriculation period) exacerbated his disability.” Defendant did so to demonstrate to the court the “ongoing and consistent” nature of plaintiff's requested accommodation. But it was abundantly clear from the original complaint that plaintiff's concern over the NBEDP2 deadline was among the many stressful circumstances that “exacerbated his disability.” Thus, these additional allegations contribute no new information.
In summary, plaintiffs amended complaint suffers from the much the same defects as plaintiffs original complaint, and it similarly fails to state a plausible claim to relief. Hence, it would be futile to allow plaintiff to amend his complaint.
Conclusion
For the foregoing reasons, plaintiffs motions for reconsideration and for leave to amend are denied.
SO ORDERED.