Charles, et al v. The City of New York et al

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------x
JESS CHARLES et al.,
Plaintiffs,
-against-
CITY OF NEW YORK et al.,
Defendants.
------------------------------------x
MEMORANDUM & ORDER
23-CV-3108 (EK)(PCG)
ERIC KOMITEE, United States District Judge:
Since April 2020, the City of New York has operated
the “Open Streets Program,” which seeks to open streets to
pedestrians by closing them to cars and trucks. 	Some streets in
the program remain open to local vehicular traffic — for
example, to drivers who live on the street in question — while
others are closed in their entirety. 	The City works with
community organizations to implement the program in certain
neighborhoods.
Plaintiffs are disabled individuals who live on or
near affected streets open to local traffic. 	They claim that
they are prevented from accessing these streets because, among
other things, the program deploys barriers to block off streets,
and the plaintiffs cannot move them due to their disabilities.
The plaintiffs bring claims for violations of the
Americans with Disabilities Act, Rehabilitation Act, New York
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State Human Rights Law, and New York City Human Rights Law
against the City of New York and “Volunteer Defendants” — the
community organizations (and their leaders) who help administer
the program on streets near the plaintiffs.1
Both the City and Volunteer Defendants now move to
dismiss all claims. 	For the reasons set forth below, the motion
to dismiss the claims against the City is denied, and the motion
to dismiss the claims against the Volunteer Defendants is
granted with respect to the federal claims. 	The Court requests
supplemental briefing on the state- and city-law claims brought
against the Volunteer Defendants.
Background
A. 	The Open Streets Program
The following recitation is drawn from the ordinance
instituting the Open Streets program, the rules adopted by the
New York City Department of Transportation (“DOT”) in
furtherance thereof, and the plaintiffs’ amended complaint. 	At
1 The Volunteer Defendants are the North Brooklyn Parks Alliance; North
Brooklyn Open Streets Community Coalition; North Brooklyn Mutual Aid; 34th
Avenue Open Streets Coalition; Noel Hidalgo, who is the founder and leader of
the North Brooklyn Open Streets Community Coalition; Kevin LaCherra, who is
also a leader at the North Brooklyn Open Streets Community Coalition; Jeffrey
Hodson, who is a volunteer with the North Brooklyn Open Streets Community
Coalition; Jim Burke, who is a leader at the 34th Avenue Open Streets
Coalition; and Nuala O’Doherty-Naranjo, who is also a leader at the 34th
Avenue Open Streets Coalition. 	Am. Compl. ¶¶ 35-42. 	The Clerk of Court is
respectfully directed to terminate former defendants Horticulture Society of
New York, Fort Greene Open Street Coalition, Loisaida Open Street Community
Coalition, W103 Open Street Community Coalition, and Clara Smith from the
docket.
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this stage, we assume the truth of all factual assertions in the
complaint.
During the COVID-19 pandemic, the City of New York
began temporarily closing streets to “provide spaces for the
public to gather safely outdoors.” 	Am. Compl. ¶ 87. 	This
culminated in the Open Streets program, codified by the New York
City Council in 2021. 	Id. ¶ 88.
The City Council mandated that a minimum number of
“open streets” be in operation at any given time. 	N.Y.C. Admin.
Code § 19-107.1(c) (requiring “no fewer than 20 open streets in
areas underserved by open streets”). 	An open street is one
“designated by the department as such, on which motor vehicle
access is controlled by barriers and signage or other traffic
calming measures, and on which priority is given to pedestrians,
individuals using bicycles, and other non-vehicular street
users.” 	Id. § 19-107.1(a).2 	The City’s Department of
Transportation “designate[s] and manage[s] open streets” in
accordance with the terms of Section 19-107.1 and with “rules of
the department.” 	Id. § 19-107.1(b).3
2 The City adopted the “Open Streets” section of its administrative code
in 2021. 	See N.Y.C. Admin. Code § 19-107.1; N.Y.C.L.L. 2021/055.
3 An “open street” may comprise a portion of a street that is less than
its entire length, N.Y.C. Admin. Code § 19-107.1(a), but the program
sometimes requires a minimum length. 	Id. § 19-107.1(c)(1) (“At minimum, 10
of such open streets shall be no fewer than five blocks in length.”).
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The City decides what streets are included in (and
removed from) the program. 	Id. 	But “volunteers, activists and
community organizers” — like the Volunteer Defendants — may
“seek to designate streets for the Program” by submitting
applications. 	Am. Compl. ¶ 90. 	Community organizations may
also assist in managing open streets after working with DOT to
develop an operational plan. 	Id. ¶ 139. 	These organizations
apply for necessary permits, notify community stakeholders, and
report incidents and issues to DOT. 	Id.
There are two types of open streets: “full closure”
streets and “limited local access” open streets. 	34 R.C.N.Y.
§ 4-21(a). 	At issue in this case are the latter. 	On limited
local access open streets, local vehicular traffic is permitted,
but access to other vehicles is limited by the use of metal
stanchions or other barriers. 	Id. § 4-21(a)(i). 	These barriers
pose difficulties to the plaintiffs when they attempt to access
these streets by motor vehicle: whereas able-bodied people can
exit their cars and move the barriers themselves, the barriers
cause “considerable problems for the elderly and the disabled,
who are not physically capable of moving [them].” 	Am. Compl.
¶¶ 43, 103-105.
Because of their disabilities, the plaintiffs rely
“upon automobiles in order to go grocery shopping, [to] go to
medical appointments, to attend social activities, and to
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generally live their lives independently,” which they cannot do
when their streets are blocked off. 	Id. ¶ 107. 	Similarly,
rideshare services and paratransit vehicles often either decline
trips to these streets or cannot come to the curb because they
are either “prohibited by their employers[] from exiting
vehicles to move barricades” or their GPS services “identify the
closed street areas as closed to vehicle traffic.” 	Id. ¶ 108.
As a result, plaintiffs must “walk distances that are beyond
their ability.” 	Id.
B. 	Plaintiffs’ Claims
The plaintiffs bring claims for violations of Title II
of the ADA; Rehabilitation Act; 42 U.S.C. § 1983, Rev. Stat.
§ 1979 (derivative of their ADA and Rehabilitation Act claims);
New York State Human Rights Law (“NYSHRL”); and New York City
Human Rights Law (“NYCHRL”). 	They request “injunctive and
declaratory relief enjoining the Open Streets Program.” 	Id. at
55.
Legal Standard
To survive a motion to dismiss under Rule 12(b)(6), a
complaint must plead facts sufficient “to state a claim to
relief that is plausible on its face.” 	Bell Atl. Corp. v.
Twombly, 550 U.S. 544, 570 (2007).4 	A claim is plausible “when
4 Unless otherwise noted, when quoting judicial decisions this order
accepts all alterations and omits all citations, footnotes, and internal
quotation marks.
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the plaintiff pleads factual content that allows the court to
draw the reasonable inference that the defendant is liable for
the misconduct alleged.” 	Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009). 	The Court must accept all factual allegations in the
complaint as true and draw all reasonable inferences in the
plaintiffs’ favor. 	See Lundy v. Cath. Health Sys. of Long
Island Inc., 711 F.3d 106, 113 (2d Cir. 2013). 	At the same
time, the Court is “not bound to accept as true a legal
conclusion couched as a factual allegation.” 	Iqbal, 556 U.S. at
678.
Discussion
A. 	Claims Against the City
1. 	Title II of the ADA
Congress enacted the Americans with Disabilities Act
in 1990. 	The statute sought to remedy the “architectural,
transportation, and communication barriers” that “individuals
with disabilities continually encounter.” 	42 U.S.C.
§ 12101(a)(5). 	To that end, Title II of the Act provides that
“no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied
the benefits of the services, programs or activities of a public
entity, or be subjected to discrimination by any such
entity.” 	Id. § 12132.
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The Department of Justice has promulgated extensive
rules under Title II. 	The parties dispute which of these
regulations apply and how. 	For the reasons discussed below,
however, we need not reach that question because the plaintiffs
have plausibly pleaded a violation of the statute — Section
12132 — itself. 	See Cohen v. City of Culver City, 754 F.3d 690,
695 (9th Cir. 2014) (observing, in the Section 12132 context,
that “a public entity may violate the ADA even if no regulation
expressly proscribes its particular conduct”).5
The plaintiffs contend that they have been denied a
benefit of the Open Streets program — namely, the benefit of
accessing streets that promise limited local access.
2. 	The Plaintiffs’ Claims Are Justiciable
The City argues that parts of the plaintiffs’ claims
are not justiciable, for three reasons: (1) the plaintiffs lack
standing to challenge crosswalks and curb cuts under the ADA;
(2) certain plaintiffs’ claims are moot because they live near
streets that are no longer part of the Open Streets Program; and
(3) new accommodations rules adopted by DOT moot the case. 	For
5 The Second Circuit has stated that the “general prohibitions in the
ADA . . . are not self-reading.” 	Noel v. N.Y.C. Taxi & Limousine Comm’n, 687
F.3d 63, 69 (2d Cir. 2012). 	We do not understand self-reading to be
synonymous with self-executing, and thus do not believe that guidance is
inconsistent with the notion that one can be liable for violating the text of
Title II itself without reference to any regulation promulgated pursuant
thereto. 	See, e.g., Cohen, 754 F.3d at 695.
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the reasons outlined below, none of these arguments are
persuasive.
a. 	The Plaintiffs Have Standing to Bring a
Title II ADA Claim
The City first argues that the plaintiffs lack
standing to assert claims “regarding blocked access to curbs”
because “no Plaintiff has alleged that he or she was negatively
impacted by any alleged barrier to curb or crosswalk access.”
See Mem. of Law in Supp. of City Def.’s Mot. to Dismiss (“City
Mem.”) 23, ECF No. 73.
Article III standing is assessed on a claim-by-claim,
not a fact-by-fact, basis. 	TransUnion LLC v. Ramirez, 594 U.S.
413, 431 (2021) (“[P]laintiffs must demonstrate standing for
each claim that they press . . . .” (emphasis added)). 	Here,
the plaintiffs bring a single claim under Title II of the ADA.
The plaintiffs’ allegation that the Open Streets
barriers make it more difficult to access or leave their homes
suffices to establish injury-in-fact. 	See, e.g., Woods v.
Centro of Oneida, Inc., 103 F.4th 933, 940 (2d Cir. 2024)
(“[D]eterrence [from using a facility] constitutes an injury
under the ADA . . . .”). 	On that basis, the Court has
jurisdiction to entertain the Title II claim.
Given that, the City’s standing argument reads more
like a motion to strike immaterial allegations pursuant to
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Federal Rule of Civil Procedure 12(f), rather than a motion to
dismiss one or more counts for lack of jurisdiction. 	The
allegations of curb-cut-related injury may or may not be
immaterial. 	But Rule 12(f) motions are highly disfavored, see
Brown v. Maxwell, 929 F.3d 41, 51 n.42 (2d Cir. 2019), and “will
not be granted unless it is clear that the allegations in
question can have no possible bearing on the subject matter of
the litigation.” 	Brady v. Basic Rsch., L.L.C., 101 F. Supp. 3d
217, 225 (E.D.N.Y. 2015). 	This issue can be more effectively
addressed at summary judgment or in motions in limine.
b. 	The Claims of Plaintiffs Mill Jonakait and
Rosyln Huebener Are Not Moot
The City also argues that the claims of plaintiffs
Mill Jonakait and Roslyn Huebener are moot because South
Portland Avenue, one of the streets that affects them,6 is no
longer part of the Open Streets Program. 	City Mem. 24. 	A case
will generally be moot absent a continued “concrete interest” in
the litigation. 	Chafin v. Chafin, 568 U.S. 165, 172 (2013). 	At
the same time, “a defendant’s voluntary cessation of a
challenged practice will moot a case only if the defendant can
show that the practice cannot reasonably be expected to
recur.” 	Fed. Bureau of Investigation v. Fikre, 601 U.S. 234,
241 (2024). 	“To show that a case is truly moot, a defendant
6 Both plaintiffs also assert proximity to or frequent use of other
streets that are part of the program.
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must prove no reasonable expectation remains that it will return
to its old ways. 	That much holds for governmental defendants no
less than for private ones.” 	Id. 	A defendant’s “sparse
declaration” regarding its cessation is not enough. 	Id. at 242.
The City falls short of satisfying that “formidable
burden” at this stage. 	Id. at 241. 	The City represents — in
their brief, not even by affidavit — that South Portland Avenue
is no longer part of the Open Streets Program and that they have
not received any applications for South Portland Avenue to be
part of the program in 2024. 	City Mem. 24-25. 	This statement,
however, tells us nothing about the likelihood that South
Portland may be part of the program in the future. 	The City’s
representations are thus insufficient at this stage. 	Fikre, 601
U.S. at 241.
c. 	The City’s New Accommodations Rules Do Not
Moot the Case
The City notes that after the plaintiffs filed the
amended complaint, DOT promulgated accommodations rules that
allow the barriers at issue to be moved, and that “DOT may in
fact provide services to assist individuals with disabilities to
temporarily move the barriers to facilitate local vehicle
access.” 	City Mem. 6-7 (referring to the rules promulgated at
34 R.C.N.Y. § 4-21). 	The fact that these new rules may cure the
plaintiffs’ injuries does not moot their claims at this stage,
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given the “heavy burden” required to show mootness and the
“intensely factual” nature of the inquiry. 	Am. Freedom Def.
Initiative v. Metro. Trans. Auth., 815 F.3d 105, 110 (2d Cir.
2016); Samele v. Zucker, 324 F. Supp. 3d 313, 328 (E.D.N.Y.
2018). 	If there are facts outside the complaint to suggest that
the program has become more accessible, the Court will not
consider them at this stage. 	See Uni-World Cap. L.P. v.
Preferred Fragrance, Inc., No. 13-CV-7204, 2014 WL 3900565, at
*11 (S.D.N.Y. Aug. 8, 2014) (“[T]he Court, in resolving a motion
to dismiss, cannot consider a fact adduced in discovery, let
alone a factual claim by a defendant of adequate remediation.”).
The mootness argument thus falls short.
3. 	The Prima Facie Case Under Title II and the
Rehabilitation Act
The Second Circuit analyzes Title II and
Rehabilitation Act claims together, since the “standards for
actions under these provisions . . . are generally equivalent.”
Dean v. Univ. at Buffalo Sch. of Med. & Biomed. Scis., 804 F.3d
178, 187 (2d Cir. 2015).
“In order to establish a violation under the ADA, the
plaintiffs must demonstrate that (1) they are ‘qualified
individuals’ with a disability; (2) that the defendants are
subject to the ADA; and (3) that plaintiffs were denied the
opportunity to participate in or benefit from defendants’
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services, programs, or activities, or were otherwise
discriminated against by defendants, by reason of plaintiffs’
disabilities.” 	Henrietta D. v. Bloomberg, 331 F.3d 261, 272 (2d
Cir. 2003). 	The Rehabilitation Act claim contains the same
elements, except that to be subject to that Act, “a plaintiff
must [also] show that the defendants receive federal funding.”
Id.
In the instant case, the parties do not dispute that
the plaintiffs are qualified individuals with disabilities, or
that the City is subject to the ADA and the Rehabilitation Act.7
The defendants’ motion thus turns on the third prong,
implicating discrimination and the denial of benefits “by reason
of” disability.
To address this question, the Court must first define
the scope of the “program, service, or activity” at issue, and
then evaluate whether the defendants denied plaintiffs
“meaningful access” to that program’s “benefits.” 	Alexander v.
Choate, 469 U.S. 287, 301 (1985); Henrietta D., 331 F.3d at 282.
7 Under Section 504 of the Rehabilitation Act, “[n]o otherwise qualified
individual with a disability in the United States . . . shall, solely by
reason of her or his disability, be excluded from the participation in, be
denied the benefits of, or be subjected to discrimination under any program
or activity receiving Federal financial assistance. . . .” 	29 U.S.C.
§ 794(a). 	Perhaps counterintuitively, the statute goes on to define “program
or activity” as “all of the operations of a department, agency, special
purpose district, or other instrumentality of a State or local government.”
Id. § 794(b). 	Plaintiffs plead that DOT receives federal funds and therefore
is subject to the Rehabilitation Act, and that DOT specifically received
federal funds for the Open Streets Program. 	See Am. Compl. ¶¶ 101, 138.
However, since DOT is not subject to suit, the City is the appropriate
defendant. 	See N.Y.C. Charter ch. 17 § 396.
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a. 	The Program at Issue Is the Open Streets
Program
The parties disagree as to the “program, service, or
activity” at issue. 	The plaintiffs claim that the “programs,
services, or activities” are the individual streets affected by
the Open Streets program. 	Pls.’ Mem. of Law in Opp. to Def.
City of New York’s Mot. to Dismiss 9-12, ECF No. 76. 	The City
contends that it is the entire network of New York City streets.
City Mem. 7-10.8
In the end, the correct conclusion is the obvious one:
the “program” at issue is the Open Streets program. 	That
conclusion emanates from the plain language of the statute,
together with a brief perusal of dictionary definitions and case
law. 	The Second Circuit has approved this approach in the past,
upholding a district court’s reading of “activity” taken from
Webster’s Third. 	See Innovative Health Sys., 117 F.3d at 44-45
(quoting the definition of Activity in Webster’s Third New
International Dictionary (1993): a “natural or normal function
or operation”).
8 The Second Circuit has instructed that we define the scope of the
“program, service, or activity” broadly to align with the ADA’s purpose as a
remedial statute. 	E.g., Innovative Health Sys., Inc. v. City of New York,
117 F.3d 37, 45 (2d Cir. 1997); Tudor v. Whitehall Cent. Sch. Dist., 132
F.4th 242, 247 (2d Cir. 2025). 	However, guidance must be balanced against
the Supreme Court’s admonition that reading a statute as pursuing “its
remedial purpose at all costs” rests on a “flawed premise.” 	Encino
Motorcars, LLC v. Navarro, 584 U.S. 79, 89 (2017). 	Regardless, this issue is
resolved on the text of the statute itself.
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The same dictionary defines “program” as a “plan or
procedure; a schedule or system under which action may be taken
toward a desired goal; a proposed project or scheme,” see
Program, Webster’s Third New International Dictionary Unabridged
(2002), and this definition maps quite neatly onto the Open
Streets program and the streets it comprises at any given time.
See, e.g., Holmes v. Godinez, 311 F.R.D. 177, 227 (N.D. Ill.
2015) (Illinois Department of Corrections’ “job assignment
program” was a “program” under Title II); Wright v. Bd. of
Comm’rs, No. 20-CV-644, 2022 WL 17574078, at *10 (M.D. La. Dec.
9, 2022) (same for Baton Rouge’s “bus stop program”).
At bottom, the plain language of the statute — and
common sense — dictate that the “program” at issue is the Open
Streets program.
b. 	Plaintiffs Plausibly Plead a Denial of the
Open Streets Program’s Benefits
Having defined the program at issue, we turn to the
question of whether plaintiffs have plausibly pleaded the
deprivation of its benefits. 	We conclude that they have.
Again, this question is relatively easily answered by applying
the plain language of the statute to the complaint’s
allegations.
To be sure, the primary benefit of the Open Streets
program is the ability to enjoy streets on foot. 	R.C.N.Y. § 4-
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21(a) (defining an “open street” as one in which “traffic
calming measures” are employed and where “priority is given to
pedestrians, individuals using bicycles, and other non-vehicular
street users”). 	The plaintiffs in this case do not complain
that they have been deprived of this benefit.
But the primary benefit is not the only one. 	Another
salient feature of the program is that people who live on
limited local access open streets can continue to access these
streets, including by car, to get to their homes. 	See
34 R.C.N.Y. § 4-21(a)(i) (explicitly excepting “vehicles parking
on the open street” from the program’s “traffic calming
measures”); Am. Compl. ¶ 103 (“The signage on the barricades
indicates that while the streets are closed to automobiles
generally, local vehicles are permitted to access the streets in
order to, for example, park their automobiles by moving the
barricades.”).
This feature, too, is properly characterized as a
“benefit” within the meaning of Section 12132. 	Courts have
recognized that a program may offer benefits beyond its primary
purpose. 	E.g., United States v. Georgia, 546 U.S. 151, 157
(2006) (observing, in dicta, that it was “quite plausible” that
prison officials’ refusal to accommodate “disability-related
needs in such fundamentals as mobility, hygiene, medical care,
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and virtually all other prison programs” was a denial of the
benefits of a prison’s services, programs, or activities).
And the plaintiffs have plausibly alleged the denial
of this benefit. 	Am. Compl. ¶¶ 104-105. 	They allege the City
often uses “metal police stanchions which are not absolutely
immobile, but that are still physically difficult or impossible
to move for the disabled, particularly disabled seniors, who are
often too frail to lift or move the stanchions or who are at
significant risk of injuring themselves in an attempt to move
these obstacles.” 	Id. ¶ 105. 	And in poor weather conditions,
“[m]oving stanchions and being required to get in and out of
their vehicle multiple times under these slippery and hazardous
conditions is even more difficult and dangerous for disabled
residents of the community seeking to move their vehicles
through the barricaded areas.” 	Id. ¶ 106.
Since the plaintiffs have plausibly pleaded a denial
of the program’s benefits, the motion to dismiss the Title II
ADA and Rehabilitation Act claims against the City is denied.
4. 	Supplemental Jurisdiction
The City’s only basis for moving to dismiss
plaintiffs’ state- and city-law claims is that the Court should
decline to exercise supplemental jurisdiction in the event we
dismiss the federal claims. 	City Mem. 25. 	At this stage, the
Court will retain supplemental jurisdiction over the state- and
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city-law claims against the City, because the federal claims
survive and the supplemental claims derive from a common nucleus
of operative fact. 	Briarpatch, Ltd., L.P. v. Phoenix Pictures,
Inc., 373 F.3d 296, 308 (2d Cir. 2004). 	For that reason, the
City’s motion to dismiss the NYSHRL and NYCHRL claims is denied.
B. 	Claims Against the Volunteer Defendants
In addition to their claims against the City, the
plaintiffs also bring Title II ADA, Rehabilitation Act, Section
1983, New York State Human Rights Law, and New York City Human
Rights Law claims against the Volunteer Defendants. 	The
Volunteer Defendants include various community organizations and
the leaders of those organizations who are unpaid volunteers and
help administer certain Open Streets. 	Am. Compl. ¶¶ 34-42.
1. 	Title II of the ADA Does Not Reach the Volunteer
Defendants
“Title II of the ADA applies only to public entities.”
Green v. City of New York, 465 F.3d 65, 74 (2d Cir. 2006).
Plaintiffs claim that the Volunteer Defendants are deploying the
state’s “police power” by helping manage certain streets in the
Open Streets Program, and that they can therefore be held
responsible under Title II. 	We disagree.
The individual defendants are most easily dispensed
with here. 	An individual cannot be a public entity. 	Id. at 76
(citing 42 U.S.C. § 12131(1)). 	Accordingly, the ADA claims must
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be dismissed against Noel Hidalgo, Kevin Lacherra, Jeffrey
Hodson, Jim Burke, and Nuala O’Doherty-Naranjo.
Public entities do include any “instrumentality of” a
“local government,” 42 U.S.C. § 12131, and the plaintiffs assert
that the entities among the Volunteer Defendants qualify as
such. 	Am. Compl. ¶ 144. 	The statute does not define
“instrumentality,” but the Second Circuit has expounded on its
meaning in this precise context.
In Green, supra, the Court of Appeals held that to be
an instrumentality of a local government for purposes of Title
II, it is not enough that the entity in question assist the
government in achieving its desired ends. 	Green, 465 F.3d at
79. 	Instead, the entity must “somehow belong to the government
or have been created by it.” 	Id. 	Based on that reading, the
Second Circuit held that a “private hospital performing services
pursuant to a contract with a municipality” was not an
instrumentality thereof, even if it did so “according to the
municipality’s rules and under its direction.” 	Id.
Given that reading, the organizational Volunteer
Defendants must be dismissed. 	As in Green, the organizations
here are administering the City’s program, subject to the City’s
rules and direction. 	The complaint nowhere alleges that the
City created the entity Volunteer Defendants. 	The actions it
does allege are insufficient: that the entities submit
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applications to the City (though only after working with DOT to
develop an operational plan), and that they sometimes enter into
a contractual agreement. 	Even on streets managed by community
organizations, DOT provides all necessary equipment. 	N.Y.C.
Admin. Code § 19-107.1(c)(2). 	Further, organizations continue
to “report[] observations, issues and/or incidents to NYC DOT.”
Am. Compl. ¶ 139. 	Green therefore controls.
2. 	The Volunteer Defendants Are Not Subject to the
Rehabilitation Act
The Rehabilitation Act only applies to entities that
receive federal financial assistance for a particular program or
activity. 	29 U.S.C. § 794(a). 	Plaintiffs claim that the City
receives federal funds for the Open Streets Program and that,
separately, the Volunteer Defendants receive federal funds from
DOT “indirectly.” 	Am. Compl. ¶¶ 34-42, 101. 	But even so,
“Congress limited the scope of § 504 to those who actually
‘receive’ federal financial assistance because it sought to
impose § 504 coverage as a form of contractual cost of the
recipient’s agreement to accept the federal funds.” 	U.S. Dep’t
of Transp. v. Paralyzed Veterans of Am., 477 U.S. 597, 605-06
(1986). 	That is, to be liable under the Rehabilitation Act, the
Volunteer Defendants would have to receive federal subsidies for
the administration of the Open Streets Program. 	Id.
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Plaintiffs allege no facts to support the conclusion
that the Volunteer Defendants receive federal funds. 	This
requires dismissal of the Rehabilitation Act claim. 	See id. at
607 (airlines not subject to Rehabilitation Act when they “only
benefit” from airports’ use of federal aid). 	Even if the
allegations were sufficient to conclude that the Volunteer
Defendants were “Congress’s intended recipients,” the plaintiffs
do not indicate the period in which any of the Volunteer
Defendants received federal financial assistance, nor do they
state what the federal funds were received for. 	See, e.g., id.;
Hunt v. Univ. of Pittsburgh Med. Ctr., No. 18-CV-1757, 2019 WL
3776545, at *5 (M.D. Pa. Aug. 12, 2019) (dismissing
Rehabilitation Act claim where plaintiff failed to allege the
type of federal financial assistance received); Taibi v. Borough
of Slatington, No. 18-CV-385, 2018 WL 6173366, at *5 (E.D. Pa.
Nov. 26, 2018) (dismissing Rehabilitation Act claim where
plaintiff failed to plead that the discrimination occurred
“within the period that [the] entity received federal financial
assistance”). 	Therefore, the Rehabilitation Act claim against
the Volunteer Defendants must be dismissed.
3. 	The Section 1983 Claim Is Insufficiently Alleged
Against the Volunteer Defendants
The plaintiffs also bring a Section 1983 claim against
the Volunteer Defendants that is predicated on the same
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allegations as their ADA and Rehabilitation Act claims.9 	For the
same reasons the underlying antidiscrimination claims are
dismissed, the Section 1983 claim is dismissed. 	Stofsky v.
Pawling Cent. Sch. Dist., 635 F. Supp. 2d 272, 305 (S.D.N.Y.
2009); Laface v. E. Suffolk BOCES, No. 18-CV-1314, 2019 WL
1959489, at *4-5 (E.D.N.Y. May 2, 2019).
4. 	NYSHRL and NYCHRL Claims
The plaintiffs also assert NYSHRL and NYCHRL claims
against the Volunteer Defendants. 	The Court continues to
maintain supplemental jurisdiction over these claims
notwithstanding the dismissal of all federal claims against the
Volunteer Defendants. 	The federal statute governing
supplemental jurisdiction requires that all claims over which a
federal district court has original jurisdiction be dismissed
before the court relies on that provision to dismiss
supplemental claims. 	28 U.S.C. § 1367(c)(3). 	“This refers to
all claims in the case, not just those claims asserted against a
particular defendant.” 	15A Moore’s Federal Practice — Civil
§ 106.66(1) (3d ed. 2026); see also Mizuna, Ltd. v. Crossland
Fed. Sav. Bank, 90 F.3d 650, 657 (2d Cir. 1996) (“Once the
9 The operative complaint is not entirely clear as to which defendants
the Section 1983 claim is asserted against. 	We construe it as asserted only
against the Volunteer Defendants because (a) those are the only defendants
discussed in the plaintiffs’ Section 1983 briefing, and (b) this limitation
makes sense: the ADA and Rehabilitation Act reach only entities, not
individuals, so the invocation of Section 1983 is necessary.
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district court exercised original jurisdiction over
[plaintiff’s] claim against [one defendant] under . . . 28
U.S.C. § 1331, it also had supplemental jurisdiction over
[plaintiff’s] claim against [another defendant] because the two
claims are clearly so related as to be part of the same
controversy.”); Johnson v. City of New York, 669 F. Supp. 2d
444, 453 (S.D.N.Y. 2009) (same). 	Here, the state- and local-law
claims against the Volunteer Defendants bear a common nucleus of
operative fact with the federal claims against the City.
Accordingly, we reach the merits of those defendants’ motions to
dismiss the NYSHRL and NYCHRL claims.
Like the ADA, the NYSHRL and NYCHRL protect against
disability discrimination in places of public accommodation.
NYSHRL applies to any “owner, lessee, proprietor, manager,
superintendent, agent or employee of any place of public
accommodation.” 	N.Y. Exec. Law § 296(2)(a). 	NYCHRL applies to
“providers, whether licensed or unlicensed, of goods, services,
facilities, accommodations, advantages or privileges of any
kind, and places, whether licensed or unlicensed, where goods,
services, facilities, accommodations, advantages or privileges
of any kind are extended, offered, sold, or otherwise made
available.” 	N.Y.C. Admin. Code § 8-102.
Here, the plaintiffs argue that the Volunteer
Defendants functioned as “the owner (and the agents of the
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owner)” and “provider (and the agents of the provider) of public
accommodations.” 	Am. Compl. ¶¶ 157, 159. 	The plaintiffs argue
that the “place of public accommodation” at issue is the Open
Streets Program. 	Pls.’ Mem. of L. in Opp’n to Volunteer Defs.’
Mot. to Dismiss 8-9, ECF No. 80. 	The Volunteer Defendants make
two arguments in favor of dismissal: (1) that the state- and
city-law claims should fail for the same reasons as the federal
claims against them (namely, that they are neither public
entities nor recipients of federal funds); and (2) that the
individual volunteer defendants were not “personally involved”
in discriminatory conduct and therefore cannot be liable under
the NYSHRL or NYCHRL. 	Volunteer Defs.’ Mot. to Dismiss 14-19,
ECF No. 79. 	Given the relative paucity of briefing on the
state- and local-law issues, the Court will reserve judgment on
these claims pending further submissions (as described below).
The Volunteer Defendants do not address whether the
complaint identifies a place of public accommodation, nor
whether they are adequately alleged to be “agents” or
“providers” thereof. 	The Court therefore requests supplemental
briefing on the following issues: (1) whether the Volunteer
Defendants are “agents” of the City, (2) whether the Volunteer
Defendants are “providers” of any place of public accommodation,
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and (3) whether the complaint adequately alleges a “place of
public accommodation.”10
Conclusion
For the foregoing reasons, the City’s motion to
dismiss is denied, but the Volunteer Defendants’ motion to
dismiss is granted with respect to the federal claims only. 	The
Court reserves judgment on the state- and city-law claims
brought against the Volunteer Defendants, subject to their
supplemental letters. 	The Volunteer Defendants’ letter, not to
exceed five pages, is due by March 31, 2026; the Plaintiffs’
response, also not to exceed five pages, is due by April 14,
2026.
The Clerk of Court is respectfully directed to
terminate former defendants Horticulture Society of New York,
Fort Greene Open Street Coalition, Loisaida Open Street
10 The remaining Volunteer Defendants may, if they choose, furnish
copies of the agreements they entered into with the City.
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Community Coalition, W103 Open Street Community Coalition, and
Clara Smith from the docket.
SO ORDERED.
/s/ Eric Komitee
ERIC KOMITEE
United States District Judge
Dated: 	March 10, 2026
Brooklyn, New York
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