Plummer v. N.Y. Prop. Ins. Writing Ass'n

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NICOLYN PLUMMER, Plaintiff, v. NEW YORK PROPERTY INSURANCE WRITING ASSOCIATION, Defendant.

No. 7:20-CV-04805 (NSR)

United States District Court, S.D. New York

May 8, 2023

ORDER AND OPINION

NELSON S. ROMÁN, UNITED STATES DISTRICT JUDGE

Plaintiff Nicolyn Plummer (“Plaintiff”) brings this action pro se, against New York Property Insurance Underwriting Association (“NYPIUA”) alleging violations of Title III of the Americans with Disabilities A/4/4ct (“ADA”), 42 U.S.C. § 12101 et seq (ECF No. 45.) Presently before the Court is NYPIUA's motion to dismiss the Second Amended Complaint. (ECF No. 51 (the “SAC”)). For the following reasons, the motion is GRANTED, and Plaintiff's SAC is dismissed with prejudice.^[1]

FACTUAL BACKGROUND

The following facts are taken from Plaintiff's Second Amended Complaint and opposition to the instant motion,^[2] and are construed in the light most favorable to Plaintiff, the non-movant, and accepted as true for purposes of this motion.

Plaintiff is deaf and requires special technological equipment to communicate. (ECF No. 50, Plaintiff's Opposition to Defendant's Motion to Dismiss (“Pl.'s Opp.”) at 1.) On January 24, 2017, Plaintiff's roof started leaking because of a storm and damaged her floors. (Id.) During the time of this storm, Plaintiff's residence was insured under a property insurance policy through NYPIUA. (Id.) She had coverage by NYPIUA from March 9, 2016 through March 3, 2017. (ECF No. 52 (“NYPIUA Mem.”) at 1.)

Plaintiff had an inspection of her house by a local roofing inspector and by the City of Mount Vernon Department of Buildings. (SAC at 5.) The inspection confirmed that Plaintiff's home required repairs in several rooms, the hallway, and the roof. (Id.)

On January 30, 2017, Plaintiff notified NYPIUA about the roof damage. (Opp. at 2.) Plaintiff added an additional notice regarding roof damages resulting from a storm that occurred in September 2009. (SAC at 5.) Plaintiff received a form from NYPIUA, which she completed and submitted. (Id.) Defendant subsequently initiated an investigation which included inspection of Plaintiff's roof and her losses. (NYPIUA Mem. at 1.) A NYPIUA inspector went to Plaintiff's residence and, while there, he allegedly mocked, laughed at, and “acted in a discriminatory manner towards Plaintiff.” (Pl.'s Opp. at 2.) Following the incident, Plaintiff faced significant delays in receiving the report made by the inspector. (Id.) On February 7, 2017, Plaintiff's 2017 claim was denied by NYPIUA. (Id.)

On June 12, 2017, Plaintiff requested an in-person meeting with communication access real-time (“CART”) services to present her appeal, (SAC at 5) and included evidence in support of the damage that occurred in 2009. (Pl.'s Opp. at 2.) Plaintiff alleges that NYPIUA expected her to cover the costs for CART services and for the in-person meeting. (SAC at 5.)

On June 21, 2017, the 2009 claim was denied by NYPIUA without providing the requested in-person meeting. (Pl.'s Opp. at 2.) Plaintiff again requested an in-person meeting with CART services in July and November of 2017. (Id.) Plaintiff states that she “provided Defendant with resources and organizations” in order to perform the in-person meeting with services. (Id.) Defendant instead offered Plaintiff alternative methods of communication, including an option to pursue her appeal using phone services, which Plaintiff claims was inadequate. Plaintiff explains she cannot pick up on communicatory cues that hearing individuals can pick up on over the phone. (Id.) Plaintiff also states she cannot understand “communicatory cues over the phone on the same level as a non-disabled individual.” (Id. at 2-3.) Plaintiff asserts she has suffered mental anguish resulting from the exclusion faced by not being able appeal her claims. (SAC at 6.)

On June 23, 2020, Plaintiff filed her first complaint, which was dismissed without prejudice in the Court's Order and Opinion, dated June 14, 2022. (ECF Nos. 1, 43.) Plaintiff filed an amended complaint on July 30, 2022 (ECF No. 44), and soon after filed the Second Amended Complaint on August 8 2022 (ECF No. 45.) On November 2, 2022, the Court granted Defendant leave to file a motion to dismiss (ECF No. 49), which was fully briefed on December 1, 2022. (ECF No. 51.)

LEGAL STANDARD

Under Federal Rule of Civil Procedure 12(b)(6), dismissal is proper unless the complaint “contain[s] sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). When there are well-pled factual allegations in the complaint, “a court should assume their veracity and then determine whether they plausibly give rise to an entitlement to relief.” Id. at 679. The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss will be denied where the allegations “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

While the Court must take all material factual allegations as true and draw reasonable inferences in the non-moving party's favor, the Court is “not bound to accept as true a legal conclusion couched as a factual allegation,” or to credit “mere conclusory statements” or “[t]hreadbare recitals of the elements of a cause of action.” Iqbal, 556 U.S. at 662, 678 (quoting Twombly, 550 U.S. at 555). The critical inquiry is whether the plaintiff has pled sufficient facts to nudge the claims “across the line from conceivable to plausible.” Twombly, 550 U.S. at 555. A motion to dismiss will be denied where the allegations “allow[ ] the court to draw the reasonable inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678.

Where a pro se plaintiff is concerned, courts must construe the pleadings in a particularly liberal fashion. Harris v. Mills, 572 F.3d 66, 72 (2d Cir. 2009). Further, courts must interpret a pro se plaintiff's pleadings “to raise the strongest arguments that they suggest.” Harris v. City of New York, 607 F.3d 18, 24 (2d Cir. 2010) (internal citation omitted). Nevertheless, a pro se plaintiff's pleadings must contain factual allegations that sufficiently “raise a right to relief above the speculative level,” Jackson v. N.Y.S. Dep't of Labor, 709 F.Supp.2d 218, 224 (S.D.N.Y. 2010), and the court's duty to construe the complaint liberally is not “the equivalent of a duty to re-write it,” Geldzahler v. N.Y. Med. Coll., 663 F.Supp.2d 379, 387 (S.D.N.Y. 2009).

DISCUSSION

I. Motion to Strike

In her opposition papers, Plaintiff requested that the “Court strike the documents that Defendants appended to their motion to dismiss; strike any additional facts asserted in that motion; and deny their motion to dismiss.” (Pl.'s Opp. at 1.) As Plaintiff correctly points out, NYPIUA, which is represented by counsel, appears to attempt to assert its own factual allegations in its motion papers. The Court will disregard any new factual allegations that Defendant attempts to raise in its motion papers that are inconsistent with those raised by Plaintiff.

Plaintiff also moves to strike the documents that NYPIUA appended to opening motion to dismiss. (See ECF No. 52.) Defendants appended the SAC, as well as the previous two complaints in this action, and the Court's June 14, 2022 Order and Decision, which dismissed Plaintiff's Title II claim with prejudice and Title III claim without prejudice. (See ECF No. 52, Suriano Decl., Exhs. A-D.) See Plummer, 2022 WL 2133901, at *4-5 (S.D.N.Y. June 14, 2022). Plaintiff fails to provide any viable grounds to strike these documents, and doing so would not make sense given that those documents are part of the docket and consist of Plaintiff's own filings and the Court's own decision.

Plaintiff likely meant to only move to strike the Determination and Order After Investigation by the New York State Division of Human Rights, dated March 14, 2018. (See Suriano Decl., Exh. E.) Plaintiff raised a similar claim of unlawful discriminatory practice relating to public accommodation against NYPIUA before the New York State Division of Human Rights (“NYDHR). (Id.) After investigating, the NYDHR found no probable cause to believe that NYPIUA engaged or is engaging in unlawful discrimination, and dismissed the complaint, thereby closing the case. (Id.) Because the Court may take judicial notice of the Determination and Order, the Court DENIES Plaintiff's motion to strike that document. Goe v. Zucker, 43 F. 4th 19 (2d Cir. 2022) (stating that courts may take judicial notice of the administrative record filings); Evans v. New York Botanical Garden, No. 02 CIV.3591 RWS, 2002 WL 31002814, at *4 (S.D.N.Y. Sept. 4, 2002) (“A court may take judicial notice of the records of state administrative procedures, as these are public records, without converting a motion to dismiss to one for summary judgment.”); Macer v. Bertucci's Corp., No. 13-CV-2994 JFB ARL, 2013 WL 6235607, at *1 (E.D.N.Y. Dec. 3, 2013) (“The Court also takes judicial notice of the filings and records for the proceedings before the New York State Division of Human Rights (“NYDHR”), which defendant attached to its moving papers.”); Ramirez v. NYP Holdings, Inc., No. 18 CIV. 12058 (KPF), 2020 WL 470011, at *1 (S.D.N.Y. Jan. 29, 2020) (“Specifically, the Court takes judicial notice of Plaintiff's complaint to the New York State Division of Human Rights (the “NYSDHR”) and the NYSDHR's Determination and Order.”) (internal citations omitted).

II. Motion to Dismiss Title III claim

Plaintiff's sole claim in her SAC alleges a...