Plummer v. New York Property Insurance Underwriting Association

Background

Nicolyn Plummer proceeded without a lawyer and brought claims under Titles II and III of the Americans with Disabilities Act. The court had previously dismissed the Title II claim with prejudice and dismissed the Title III claim without prejudice. In her Second Amended Complaint, Plummer principally alleged that New York Property Insurance Underwriting Association failed to accommodate her deafness when she sought to appeal denials of insurance claims.

Plummer alleged that her roof was damaged by storms and that the insurer denied claims related to damage from 2017 and 2009. She requested an in-person meeting using communication access real-time, or CART, services so she could present her appeal. She alleged that the insurer expected her to pay for those services, denied one claim without providing the requested meeting, and later offered alternative communication methods, including telephone services. Plummer said telephone communication was inadequate because she could not understand communication cues as well as a person who could hear. The insurer also offered email communication, according to a determination from the New York State Division of Human Rights that the court considered.

Motion to Strike

Plummer asked the court to strike documents attached to the insurer’s motion and factual assertions in the motion papers. The court said it would disregard new factual allegations by the insurer that were inconsistent with Plummer’s allegations. But it denied Plummer’s request to strike the complaints, docket materials, and the court’s earlier decision because those materials were part of the case record.

The court also denied the request to strike the New York State Division of Human Rights’ determination and order. It held that the state administrative records were public records of which the court could take judicial notice. The state agency had investigated Plummer’s discrimination complaint, found no probable cause, and dismissed it.

Title III Standing

Title III of the Americans with Disabilities Act prohibits disability discrimination in the full and equal enjoyment of the services of a place of public accommodation. A plaintiff seeking an injunction must show standing, meaning an actual injury caused by the defendant that a favorable court decision could remedy, along with a real and immediate threat of repeated injury.

The court held that Plummer adequately alleged standing. Her allegation that the denial of her requested CART-supported meeting impeded her ability to appeal the insurer’s decisions was sufficient to allege an injury. The court also found that she adequately alleged that the problem could continue and that she intended to keep trying to appeal the insurance decision using the requested method.

Title III Merits

The court then considered whether Plummer adequately pleaded the elements of a Title III claim. The parties agreed, and the court accepted, that Plummer was disabled under the statute and that the insurer was subject to Title III as a place of public accommodation. The disputed issue was whether the insurer discriminated against her by denying her a full and equal opportunity to use its services.

The court found that Plummer did not allege how claimants ordinarily file or present appeals, or whether the insurer generally provides in-person appeal meetings. Although she alleged that telephone communication was ineffective, she did not identify the other alternative methods or explain why her disability prevented her from effectively presenting her appeal through them. The state agency’s determination showed that email was also offered.

The court explained that Title III requires an effective reasonable accommodation but does not require an entity to provide the individual’s preferred accommodation or preferred outcome. Because Plummer did not allege that email would be ineffective because of her disability, the court concluded that she failed to plead the third element of her Title III claim.

Disposition

Judge Nelson S. Roman granted the insurer’s motion to dismiss the Second Amended Complaint with prejudice. The court dismissed the Title III claim in its entirety, dismissed any Title II claim attempted in the Second Amended Complaint, and directed the Clerk of Court to close the case. The opinion does not state that any further claim remained pending.