Marks-Ellis v. NYU Langone Health Systems

Background

Ari Marks-Ellis, representing himself, had an orthopedic appointment at an NYU-affiliated outpatient facility on July 6, 2023. He asked about kosher food from a Bikur Cholim room, which the opinion describes as a private charity’s room providing kosher food at certain NYU facilities. An employee told him that the outpatient facility did not have such a room but that the NYU Kimmel Pavilion had one.

Marks-Ellis went to the Hospital and asked to visit its Bikur Cholim room. Hospital employees told him that he could not do so because he was not a Hospital patient. They explained that the room was for Hospital patients, although someone who knew a person inside the building could have food brought out. Marks-Ellis contacted the Bikur Cholim organization, and a representative brought him kosher food.

Marks-Ellis alleged that the Hospital discriminated against him because of his religion under Title II of the Civil Rights Act of 1964 and related New York state and city laws. The court also considered whether his allegations could be read to assert a claim under Section 1981 of the Civil Rights Act of 1866. He sought punitive damages and, according to the opinion, did not seek compensatory damages.

Standing to Seek Injunctive Relief

Standing is the requirement that a plaintiff show a concrete injury that the defendant caused and that the requested court relief would likely remedy. The court ruled that Marks-Ellis lacked standing to seek injunctive relief, meaning a court order requiring future conduct, because he did not plausibly allege a real and immediate threat of suffering a similar injury again.

The court noted that Marks-Ellis had moved from New York to Georgia and had not alleged an intention to return to the Hospital or to the orthopedist whose appointment led him there. The court also explained that Title II allows individual plaintiffs to seek only injunctive relief, not damages. Therefore, to the extent Marks-Ellis sought only damages under Title II, his requested relief could not remedy a Title II violation.

Title II Claim

The court nevertheless addressed the merits of the pleaded discrimination theories, in part because Marks-Ellis was representing himself and because the state-law claims involved similar issues. The court held that Marks-Ellis failed to state a Title II claim for two independent reasons.

First, Title II covers specified types of public accommodations, and the court held that a hospital itself is not one of those listed establishments. A hospital might qualify if it contained a covered establishment, such as a public cafeteria, and held itself out as serving that establishment’s patrons. But the court found that Marks-Ellis’s claim concerned access to the Bikur Cholim room, not access to the public cafeteria. The Hospital did not hold out the Bikur Cholim room as serving public-cafeteria patrons; access to that food was limited to Hospital patients.

Second, the court held that Marks-Ellis did not plausibly allege discriminatory intent. The court viewed the allegations as supporting the inference that Hospital employees were enforcing a policy limiting access to the Bikur Cholim room to Hospital patients, rather than discriminating against Marks-Ellis because he was Jewish. The court found that Marks-Ellis did not allege that other non-patients were allowed into the room while he was excluded. It also concluded that the employees’ statements that the food was “free,” even as characterized by Marks-Ellis as invoking an antisemitic stereotype, did not provide enough non-conclusory facts to support an inference of discriminatory intent.

Section 1981 Claim

Section 1981 prohibits racial discrimination in certain activities, including making and enforcing contracts and receiving the full and equal benefit of laws and proceedings. Although Marks-Ellis did not expressly assert a Section 1981 claim, the court considered whether his allegations could be read that way. The court noted that Jews are protected under Section 1981, but held that any such claim would fail because Marks-Ellis did not plausibly allege that the Hospital acted with discriminatory intent. The court applied the same intent analysis it used for the Title II claim.

New York Claims

The court construed the amended allegations to assert claims under the New York State Human Rights Law, the New York State Civil Rights Law, and the New York City Human Rights Law. Unlike Title II, the New York State Human Rights Law includes hospitals within its definition of a place of public accommodation. The court therefore did not reject those claims on the ground that the Hospital was outside the statute’s coverage.

Instead, the court held that the state and city claims failed because Marks-Ellis did not sufficiently allege that he was treated differently because of a discriminatory motive. In the court’s view, the difference in treatment was based on his being a patient at a separate outpatient facility rather than a patient at the Hospital. The court concluded that the allegations did not support a discrimination claim even under the broader standard of the New York City Human Rights Law. Because the New York State Civil Rights Law claim depended on a viable New York State Human Rights Law claim, it also failed.

Punitive Damages

The court separately concluded that Marks-Ellis’s allegations did not support punitive damages under the federal or New York laws at issue. It stated that the New York State Human Rights Law does not provide punitive damages and that the standards for punitive damages under the New York City Human Rights Law and Section 1981 require more serious conduct than Marks-Ellis alleged. The court emphasized that Hospital employees told him about the patient-only policy and helped him use the exception that allowed food to be brought to him.

Disposition

Judge Katherine Polk Failla granted NYU Langone Health Systems’s motion to dismiss. The court dismissed Marks-Ellis’s amended complaint with prejudice, directed the Clerk of Court to terminate pending motions and close the case, and concluded that further amendment would not cure the jurisdictional and pleading deficiencies.