     12-2797
     Lipton v. NYU College of Dentistry

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 3rd day of January, two thousand thirteen.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                ROBERT D. SACK,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       HERRICK LIPTON,
14                Plaintiff-Appellant,
15
16                    -v.-                                               12-2797
17
18       NEW YORK UNIVERSITY COLLEGE OF
19       DENTISTRY AND DR. ANDREW I. SPIELMAN,
20       INDIVIDUALLY,
21                Defendants-Appellees,
22       - - - - - - - - - - - - - - - - - - - -X
23
24       FOR APPELLANT:                        WILLIAM D. FRUMKIN, Sapir &
25                                             Frumkin LLP, White Plains, New
26                                             York (Howard Schragin, Sapir &
27                                             Frumkin LLP, White Plains, New
28                                             York, on the brief).

                                                  1
 1   FOR APPELLEES:             NANCY KILSON, Associate General
 2                              Counsel, for Bonnie Brier,
 3                              General Counsel, New York
 4                              University Office of General
 5                              Counsel, New York, New York.
 6
 7        Appeal from a judgment of the United States District
 8   Court for the Southern District of New York (Griesa, J.).
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that the judgment of the district court be
12   AFFIRMED.
13
14        Plaintiff Herrick Lipton appeals from the judgment of
15   the United States District Court for the Southern District
16   of New York (Griesa, J.), dismissing his complaint for
17   failure to state a claim of disability discrimination. We
18   assume the parties’ familiarity with the underlying facts,
19   the procedural history, and the issues presented for review.
20
21        This Court reviews dismissals pursuant to Rule 12(b)(6)
22   de novo. See Velez v. Levy, 401 F.3d 75, 84 (2d Cir. 2005)
23   (citing Fed. R. Civ. P. 12(b)(6)). To survive a motion to
24   dismiss, a complaint must contain sufficient factual matter,
25   accepted as true, to “state a claim to relief that is
26   plausible on its face.” Bell Atl. Corp. v. Twombly, 550
27   U.S. 544, 570 (2007). The denial of a motion for leave to
28   amend a complaint on grounds of futility is also reviewed de
29   novo. See Gorman v. Consol. Edison Corp., 488 F.3d 586, 592
30   (2d Cir. 2007).
31
32        Lipton, a former student of the New York University
33   College of Dentistry, charges the school with a failure to
34   provide reasonable accommodations as required by the
35   Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq.
36   (“ADA”) and Section 504 of the Rehabilitation Act of 1973,
37   29 U.S.C. §§ 701 et seq. (“Rehabilitation Act”). The ADA
38   and the Rehabilitation Act prohibit discrimination against
39   disabled individuals by requiring that they receive
40   “reasonable accommodations” that allow them access to and “a
41   meaningful part” in public services and public
42   accommodations. Powell v. Nat’l Bd. of Med. Exam’rs, 364
43   F.3d 79, 85 (2d Cir. 2004). To establish a prima facie
44   violation, a plaintiff must demonstrate (1) that he is a

                                  2
 1   “qualified individual” with a disability; (2) that the
 2   defendants are subject to one of the Acts; and (3) that he
 3   was denied the opportunity to participate in or benefit from
 4   defendants’ services, programs, or activities, or was
 5   otherwise discriminated against by the defendants, by reason
 6   of his disability. Id.
 7
 8        Lipton alleges that NYUCD failed to reasonably
 9   accommodate a reading disorder that has impaired his ability
10   to comprehend written material under time constraint. NYUCD
11   does not contest the disability, and gave him time and a
12   half to take subsequent exams. Nonetheless, Lipton failed
13   Part II of the National Board Dental Examination (“NBDEP2”)
14   three times in a row. NYUCD requires students to pass the
15   exam within fourteen months of completing their coursework;
16   Lipton did not fulfill the requirement, and was dismissed
17   from the program. Lipton successfully contested the
18   dismissal on the ground of his learning disability, and was
19   reinstated. In May 2008, he failed the exam for the fourth
20   time, and was dismissed from the program, this time
21   permanently.
22
23        Lipton’s initial complaint alleged that he was entitled
24   to an unlimited number of opportunities to complete the exam
25   over a “reasonable period of time.” The proposed Amended
26   Complaint requests that NYUCD adopt (for Lipton) a
27   graduation requirement identical to a new rule enacted by
28   the American Dental Association requiring candidates to pass
29   the test within five years of their first attempt or five
30   attempts, whichever comes first, so that Lipton’s re-tests
31   would be less pressured. The district court held that NYUCD
32   had not failed to reasonably accommodate his disability and
33   subsequently denied him leave to amend the complaint on
34   futility grounds.
35
36        We see no error in the district court’s conclusion that
37   Lipton’s proposed accommodations--which simply request more
38   opportunities to pass the NBDEP2 after having failed it four
39   times--bear a tenuous relationship to his reading
40   disability. Moreover, NYUCD’s refusal to create such an
41   exception to its graduation requirements is entitled to
42   “great deference.” Powell, 364 F.3d at 88.
43


                                  3
1        For the foregoing reasons, and finding no merit in
2   Lipton’s other arguments, we hereby AFFIRM the judgment of
3   the district court.
4
5                              FOR THE COURT:
6                              CATHERINE O’HAGAN WOLFE, CLERK
7




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