Plummer v. New York Property Insurance Underwriting Association

Background

Nicolyn Plummer represented herself in an action against the New York Property Insurance Underwriting Association (NYPIUA) and the New York State Division of Human Rights (DHR). She alleged violations of the Americans with Disabilities Act (ADA) under Titles II and III.

Plummer alleged that a storm damaged her house’s roof in 2010. She contacted NYPIUA about reimbursement, had difficulty completing its online form, and later submitted a written statement, receipts, and a permit. Because of severe hearing difficulties that affected her ability to communicate, she requested an in-person meeting with communication access realtime translation services. She alleged that NYPIUA refused to provide the requested meeting before a roof inspection, did not later schedule the meeting, and denied coverage on February 10, 2017.

Plummer also complained to DHR about NYPIUA’s alleged failure to accommodate her disability. DHR investigated and issued a determination stating that it found no probable cause to believe NYPIUA had engaged in unlawful discrimination. Plummer filed this federal lawsuit on June 23, 2020. The complaint requested an order requiring NYPIUA to compensate her for the roof replacement and cover the remaining balance. Both defendants moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which allows dismissal when a complaint does not allege enough facts to state a legally plausible claim.

Title II claims

Title II of the ADA applies to public entities, including state and local governments and their agencies. It prohibits excluding a qualified person with a disability from, or denying that person the benefits of, a public entity’s services, programs, or activities because of the disability. A failure-to-accommodate claim requires facts showing that the requested accommodation was needed for meaningful access to the service or program.

NYPIUA argued that it was not a public entity covered by Title II, and the opinion states that Plummer appeared to concede that point. The parties agreed that DHR was a public service, so the court analyzed the Title II claim against DHR.

The court concluded that DHR did not deny Plummer meaningful access to its services. She could participate in the investigation by submitting facts and evidence in writing and through documents. The court noted that Plummer did not allege that DHR generally provided in-person meetings to people filing grievances; she acknowledged that DHR used written communication for most investigations. She also did not explain how her disability affected her ability to submit her grievance and evidence. The court therefore dismissed the Title II claims with prejudice.

Title III claims

Title III of the ADA prohibits disability discrimination in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation. The court explained that private plaintiffs may obtain injunctive relief under Title III—an order requiring a defendant to take or stop taking an action—but may not obtain monetary damages.

The court found that Plummer’s complaint sought monetary relief rather than an injunction. Although her opposition papers said she wanted an opportunity to pursue injunctive relief and have her claim reconsidered after an in-person presentation, the court would not treat those papers as adding an entirely new claim that was absent from the complaint. The court dismissed the Title III claims without prejudice.

Disposition

Judge Nelson S. Roman granted NYPIUA’s motion to dismiss and granted DHR’s motion to dismiss. Because the Title II claim against DHR was dismissed with prejudice, DHR was terminated as a defendant. The court gave Plummer until August 15, 2022, to file an amended complaint addressing claims that had not been dismissed with prejudice. NYPIUA was directed to answer or otherwise respond by August 30, 2022. If Plummer did not timely amend and could not show good cause, the claims dismissed without prejudice would be deemed dismissed with prejudice.