Sherwin K. Parikh MD, P.C. v. Accessibe, Inc.
1:24-cv-04848
S.D.N.Y.Jun 9, 2025Background
- Plaintiffs Sherwin K. Parikh, MD, PC (dba Tribeca Skin Center), and Dillon Music filed suit against Accessibe, Inc., alleging failures in Accessibe’s web accessibility software under the Americans with Disabilities Act (ADA) and related contract and warranty claims.
- Plaintiffs sought leave to file a Second Amended Complaint (SAC) to add a new plaintiff (Safe Life Defense, LLC) and incorporate new factual allegations, including recent FTC action against Accessibe.
- Accessibe previously moved to dismiss the First Amended Complaint (FAC), arguing various legal and procedural defects, and opposed the motion to amend on futility grounds.
- The Court had stayed briefing on the motion to dismiss pending resolution on whether amendment would be allowed.
- The SAC did not introduce new causes of action but added claims concerning pre-suit notice, interactions with Accessibe, and the company’s marketing practices.
- No discovery had taken place, and no defendant had answered; case was still at an early stage.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Leave to Amend (Rule 15/21 standards) | No undue delay, bad faith, or prejudice; amendment should be freely allowed | Amendment futile; same defects as prior complaint | Amendment allowed; no undue delay/bad faith. |
| Futility of Amendment | SAC addresses some issues in motion to dismiss | SAC unable to cure legal deficiencies in FAC | Court declined detailed futility review; focus for motion to dismiss. |
| Prejudice to Defendant | Early stage of litigation, no answer or discovery | None expressly argued | No undue prejudice found |
| Judicial Economy | Amending before addressing motion to dismiss is more efficient | Amendments should be denied as claims are still defective | Judicial economy favors granting amendment now. |
Key Cases Cited
- Foman v. Davis, 371 U.S. 178 (1962) (Sets standard for when leave to amend should be freely given absent undue delay, bad faith, or prejudice)
- Pettaway v. National Recovery Solutions, LLC, 955 F.3d 299 (2d Cir. 2020) (District court may deny pending motion to dismiss as moot when proper amended complaint is filed)
- State Teachers Retirement Board v. Fluor Corp., 654 F.2d 843 (2d Cir. 1981) (Mere delay, absent bad faith or prejudice, does not warrant denial of right to amend)
- National Credit Union Administration Board v. U.S. Bank National Association, 898 F.3d 243 (2d Cir. 2018) (No right to further amendment when plaintiff already aware of deficiencies)