Herrick LIPTON, Plaintiff-Appellant, v. NEW YORK UNIVERSITY COLLEGE OF DENTISTRY and Dr. Andrew I. Spielman, Individually, Defendants-Appellees, 507 F. App'x 10

Present: DENNIS JACOBS, Chief Judge, GUIDO CALABRESI, and ROBERT D. SACK, Circuit Judges.

SUMMARY ORDER UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED AND DECREED that the judgment of the district court be AFFIRMED. Plaintiff Herrick Lipton appeals from the judgment of the United States District Court for the Southern District of New York (Griesa,./.), dismissing his complaint for failure to state a claim of disability discrimination. We assume the parties’ familiarity with the underlying facts, the procedural history, and the issues presented for review. This Court reviews dismissals pursuant to Rule 12(b)(6) de novo. See Velez v.

Levy, 401 F.3d 75, 84 (2d Cir.2005) (citing Fed.R.Civ.P. 12(b)(6)). To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to “state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570, 127 S.Ct. 1955, 167 L.Ed.2d 929 (2007). The denial of a motion for leave to amend a complaint on grounds of futility is also reviewed de novo. See Gorman v. Consol. Edison Corp., 488 F.3d 586, 592 (2d Cir.2007).

Lipton, a former student of the New York University College of Dentistry, charges the school with a failure to provide reasonable accommodations as required by the Americans with Disabilities Act, 42 U.S.C. §§ 12101, et seq. (“ADA”) and

Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. §§ 701 et seq. (“Rehabilitation Act”). The ADA and the Rehabilitation Act prohibit discrimination against disabled individuals by requiring that they receive “reasonable accommodations” that allow them access to and “a meaningful part” in public services and public accommodations. Powell v. Nat’l Bd. of Med. Exam’rs, 364 F.3d 79, 85 (2d Cir.2004).

To establish a prima facie violation, a plaintiff must demonstrate (1) that he is a “qualified individual” with a disability; (2) that the defendants are subject to one of the Acts; and (3) that he was denied the opportunity to participate in or benefit from defendants’ services, programs, or activities, or was otherwise discriminated against by the defendants, by reason of his disability. Id. Lipton alleges that NYUCD failed to reasonably accommodate a reading disorder that has impaired his ability to comprehend written material under time constraint.

NYUCD does not contest the disability, and gave him time and a half to take subsequent exams. Nonetheless, Lipton failed

Part II of the National Board Dental Examination (“NBDEP2”) three times in a row. NYUCD requires students to pass the exam within fourteen months of completing their coursework; Lipton did not fulfill the requirement, and was dismissed from the program. Lipton successfully contested the dismissal on the ground of his learning disability, and was reinstated. In May 2008, he failed the exam for the fourth time, and was dismissed from the program, this time permanently.

Lipton’s initial complaint alleged that he was entitled to an unlimited number of opportunities to complete the exam over a “reasonable period of time.” The proposed Amended Complaint requests that NYUCD adopt (for Lipton) a graduation requirement identical to a new rule enacted by the American Dental Association requiring candidates to pass the test within five years of their first attempt or five attempts, whichever comes first, so that Lipton’s re-tests would be less pressured.

The district court held that NYUCD had not failed to reasonably accommodate his disability and subsequently denied him leave to amend the complaint on futility grounds. We see no error in the district court’s conclusion that Lipton’s proposed accommodations — which simply request more op-portumties to pass the NBDEP2 after having failed it four times — bear a tenuous relationship to his reading disability. Moreover, NYUCD’s refusal to create such an exception to its graduation requirements is entitled to “great deference.” Powell, 364 F.3d at 88.

For the foregoing reasons, and finding no merit in Lipton’s other arguments, we hereby AFFIRM the judgment of the district court.