Hernandez v. Berlin Newington Associates, LLC
Filing
67
MEMORANDUM OF DECISION denying 58 Motion for Summary Judgment. Signed by Judge Dominic J. Squatrito on 1/30/15. (Glynn, T.)
UNITED STATES DISTRICT COURT
DISTRICT OF CONNECTICUT
MODESTO HERNANDEZ,
Plaintiff,
v.
BERLIN NEWINGTON
ASSOCIATES, LLC
Defendant.
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No. 3:10CV1333 (DJS)
MEMORANDUM OF DECISION
The plaintiff Modesto Hernandez ("Hernandez") seeks injunctive relief against the
defendant, Berlin Newington Associates, LLC, for alleged violations of Title III of the Americans
with Disabilities Act, 42 U.S.C. § 12181, et seq. ("the ADA"). In his Complaint, Hernandez
alleges that he is a qualified individual with a disability and that the defendant is the owner,
lessee, and/or operator of a place of public accommodation (a shopping center known as the
Plaza) located on the Berlin Turnpike in Newington, Connecticut. Hernandez further alleges that
he has experienced serious difficulty accessing the goods and services provided at the Plaza
because of architectural barriers that constitute violations of the ADA. Pending before the Court
is the plaintiff's motion for summary judgment. For the reasons stated below, the plaintiff
Hernandez's motion for summary judgment (doc. # 58) is denied.
DISCUSSION
Summary judgment is appropriate only where a movant makes a clear showing "that there
is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of
law." Fed. R. Civ. P. 56 (a). In determining a motion for summary judgment, the Court must
construe facts in a light most favorable to the non-movant, here the defendant, drawing all
reasonable inferences and resolving all ambiguities in the defendant's favor. Colavito v. New
York Organ Donor Network, Inc., 438 F.3d 214, 217 (2d Cir. 2006). "Thus, when the party
against whom summary judgment is sought comes forth with affidavits or other material obtained
through discovery that generates uncertainty as to the true state of any material fact, the
procedural weapon of summary judgment is inappropriate." Quinn v. Syracuse Model
Neighborhood Corp., 613 F.2d 438, 445 (2d Cir. 1980).
Title III of the ADA provides that "[n]o individual shall be discriminated against on the
basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges,
advantages, or accommodations of any place of public accommodation . . . ." 42 U.S.C. § 12182
(a). For the purposes of § 12181 (a), "discrimination includes . . . a failure to remove architectural
barriers . . . where such removal is readily achievable . . . ." 42 U.S.C. § 12182 (b)(2)(A)(iv). The
defendant has stipulated that it is the owner/operator of a place of public accommodation (the
Plaza) and that Hernandez is a disabled individual as defined by the ADA.
Despite the defendant's stipulations that Hernandez is a disabled individual and that the
Plaza is a place of public accommodation, this clearly is a case where there is a genuine dispute
as to material facts. In his Complaint, Hernandez alleges that he suffers from polio and requires a
wheelchair to ambulate safely. He further alleges that when he visited the Plaza in 2010 he
encountered inaccessible parking, signage, counters, ramps and curbs, and entrances in violation
of the ADA. An initial report from the plaintiff's engineering expert, dated November 18, 2011,
identified numerous conditions that did not, in the expert's opinion, meet the technical
specifications published by the Department of Justice in the ADA Standards for Accessible
Design. In his motion for summary judgment, Hernandez contends that thirty-nine specific
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architectural barriers still remain at the Plaza in violation of the ADA. In support of this factual
claim he cites to an updated report from his engineering expert dated March 20, 2014.
In opposing the plaintiff's motion for summary judgment, the defendant contends that it
has performed, or is in the process of performing, all modifications and repairs necessary to
ensure that all disabled patrons are able to use its premises. The defendant's contention in this
regard is supported by an affidavit from its managing agent who has personal knowledge of, and
has had personal involvement in, actions taken to address issues raised by the plaintiff's
engineering expert. Hernandez acknowledges, but disputes, the defendant's contention that it had
performed renovations and resolved all barriers identified in the initial report of the plaintiff's
engineering expert.
The Court is hard-pressed to understand how a serious argument could be made that there
is no material fact genuinely in dispute in this case. This fatal flaw in the motion for summary
judgment is even more evident in light of the fact that this action seeks injunctive relief.
"Because a private plaintiff can sue only for injunctive relief (i.e., for removal of the barrier)
under [Title III of] the ADA, . . . a defendant's voluntary removal of alleged barriers prior to trial
can have the effect of mooting a plaintiff's ADA claim." Oliver v. Ralphs Grocery Co., 654 F.3d
903, 905 (9th Cir. 2011) (citation omitted); see also Harty v. Simon Property Group, L.P., 428 F.
App'x 69, 71 (2d Cir. 2011) ("a plaintiff seeking injunctive relief cannot rely only on past injury
to satisfy the injury requirement but must show a likelihood of future harm"). The plaintiff
contends he is entitled to an injunction because barriers to access have not been removed. The
defendant contends that all barriers to access have been removed or are in the process of being
removed. This basic factual dispute is particularly inappropriate for resolution by means of a
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motion for summary judgment, since "[o]n a motion for summary judgment, the court is to
identify factual issues, not . . . resolve them." In re Dana Corp., 574 F.3d 129, 156 (2d Cir.
2009). "Indeed, it is the very purpose of the trial to establish which party's version of the
contested circumstances best comports with reality." Quinn, 613 F.2d at 445. Accordingly, the
plaintiff's motion for summary judgment (doc. # 58) is DENIED.
SO ORDERED this 30th day of January, 2015.
_____/s/ DJS__________________________________
DOMINIC J. SQUATRITO
UNITED STATES DISTRICT JUDGE
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