THE INDEPENDENCE PROJECT, INC. et al v. EVERGREEN I ASSOCIATES LLC.

Filing 10

ORDER granting 9 Motion for Default Judgment. Signed by Judge Jerome B. Simandle on 12/21/2017. (tf, )

UNITED STATES DISTRICT COURT
DISTRICT OF NEW JERSEY
CAMDEN VICINAGE
THE INDEPENDENCE PROJECT, INC., A New
Jersey Non Profit Corporation and DENNIS
MAURER, Individually,

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:
:
:
Plaintiffs,
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vs.
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EVERGREEN I ASSOCIATES, LLC a New Jersey :
Limited Liability Corporation,
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Defendant.
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Case No. 1:16-06133-JBS-AMD

DEFAULT FINAL JUDGMENT AGAINST
DEFENDANT, EVERGREEN I ASSOCIATES, LLC
THIS CAUSE came before the Court on the Plaintiffs' Motion for Entry of Judgment After
Default Against the Defendant, Evergreen I Associates, LLC, a New Jersey Limited Liability
Company (Docket Item 9) pursuant to Rule 55(b), Fed. R. Civ. P.; and
The Court has reviewed the matters and Plaintiffs' allegation that Defendant is a place of
public accommodation, operating in violation of Title III of the Americans With Disabilities Act,
42 U.S.C. 12181, et seq. and the New Jersey Law Against Discrimination. See N.J.S.A. § 10.5 et seq.
It has also reviewed the Affidavit of Plaintiffs expert, Anthony Mattera, attesting to the violations
at the Defendant's premises, which this Court credits regarding enumerated violations of the ADA
and NJLAD.
Based on the foregoing, and having otherwise been advised in the premises,
IT IS, this

21st

day of December, 2017, hereby

ORDERED AND ADJUDGED as follows:

1.

This Court has subject matter jurisdiction over the Parties and the subject matter of

this action pursuant to 28 U.S.C. § 1331 and § 1343, for Plaintiffs’ claims, based upon Defendant’s
violation of Title III of 42 U.S.C. § 12181 et seq. (the "Americans With Disabilities Act"), and
supplemental jurisdiction over the Plaintiffs State law claim brought pursuant to the New Jersey Law
Against Discrimination (N.J.S.A.) § 10.5, et seq. by virtue of 28 U.S.C. § 1367. The Court has
personal jurisdiction over Defendant.
2.

The Plaintiffs, The Independence Project, Inc. and Dennis Maurer's Motion for Entry

of Judgment After Default be and the same is hereby GRANTED. Default was entered on January
5, 2017 against the Defendant, Evergreen I Associates, LLC pursuant to Rule 55(a), and default
judgment is hereby entered in favor of Plaintiffs, The Independence Project, Inc. and Dennis Maurer
and against Defendant Evergreen I Associates, LLC.
3.

The Defendant, Evergreen I Associates, LLC are hereby ENJOINED to comply with

all sections of the Americans With Disabilities Act, 42 U.S.C. § 12181, the Standards for Accessible
Design ("2010 Standards"), as promulgated by the U.S. Department of Justice, 28 C.F.R. Chapter
1, Part 36, App. A, as specifically set forth in the Plaintiffs' Complaint and the Affidavit of Plaintiff’s
expert, Anthony Mattera of Access Consultants, LLC at the Evergreen Plaza located at 1710 Route
38, Lumberton, NJ 08048 in Burlington County, in the State of New Jersey, specifically consisting
of the following conditions and remedial measures. The Defendant is hereby enjoined to remedy the
following violations within ninety (90) days of the entry of this Judgment:
A.

Parking and Exterior Accessible Route
(1)

Parking throughout Evergreen Plaza is not maintained; lacks adequate
access aisles, lack an accessible route and contain slopes within the

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spaces, violating Sections 502 and 502.4 of the 2010 Accessibility
Standards, which shall be cured.
(2)

(3)

The exterior accessible route from parking spaces at Evergreen Plaza
fails to lead to ramps or curb ramps and was found to contain cross
slopes an d abrupt changes of level, those in wheelchairs can be
harmed by these conditions, violating Sections 403.4 and 402 of the
2010 Accessibility Standards, which shall be cured.

(4)

B.

Curb ramps provided to access stores at Evergreen Plaza are unsafe
for wheelchair users and are not provided in some areas of the center.
The curb ramps contain abrupt changes of level, contain cross slopes
and slopes beyond the limits, violating Sections 406 and 502.7 of the
2010 Accessibility Standards, which shall be cured.

Evergreen Plaza fails to provide a safe accessible route to the adjacent
bus stop, street or sidewalk, violating Section 206.2.1 of the 2010
Accessibility Standards, which shall be cured.

Access to Goods and Services
(1)

(2)

C.

La Vita's Pizza and Mount Holly Buffet fail to provide accessible
dining tables for those in wheelchairs, violating Section 902 of the
2010 Accessibility Standards, which shall be cured.
Payment counters throughout Evergreen Plaza are mounted beyond
the reach of Mr. Maurer and others in wheelchairs, violating Sections
308 and 904 of the 2010 Accessibility Standards, which shall be
cured.

Restrooms
(1)

Restrooms at Evergreen Plaza including La Vita's Pizza, Hair Topic,
New Millennium Nails and Mount Holly Buffet shall be supplied
with fixtures curing inaccessible water closets which lack proper
controls and wheelchair maneuvering space violating Section 601 of
the 2010 Accessibility Standards.

(2)

Restrooms at Evergreen Plaza provide dispensers beyond reach of
wheelchair users and are inaccessible to the plaintiff, violating
Section 308 of the 2010 Accessibility Standards, which shall be
cured.

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(3)

(4)

La Vita's Pizza provides restrooms that contain improper centerline
for the water closets and flush controls mounted on the wall side,
violating Section 604 of the 2010 Accessibility Standards, which
shall be cured.

(5)

4.

Lavatories at La Vita's Pizza lack knee clearance and accessibility
preventing the plaintiff from freely accessing the lavatory, violating
Section 606 the 2010 Accessibility Standards, which shall be cured.

Entering/exiting restrooms in La Vita's Pizza and Mount Holly Buffet
at Evergreen Plaza is impeded by improper door hardware and a lack
of maneuvering space to enter, violating Section 404 of the 2010
Accessibility Standards, which shall be cured.

Such compliance shall take place no more than three (3) months from the date of this

judgment and shall be confirmed by Defendant upon its filing a Notice of Compliance with this
Court, which Notice shall specifically set forth the rededication undertaken by the Defendant to
comply with the ADA. Plaintiff shall have thirty (30) days following the filing of Defendant's Notice
of Compliance to object to Defendant's remedial measures taken to comply with the ADA.
5.

Plaintiffs shall also recover their attorney's fees, litigation expenses, costs and expert

fees from the Defendant and this Court retains jurisdiction for the determination of the amount of
the award thereof. In accordance herewith, the Plaintiffs shall file an application for attorney's fees,
litigation expenses and costs, and expert's fees to be awarded to Plaintiff, within thirty (30) days
hereof, in the format required by Local Civil Rule 54.2. Defendant will have fourteen (14) days
thereafter to file any objection to the reasonableness of the requested amounts.
6.

The Court shall retain jurisdiction over the above-styled cause solely to enforce

compliance with this Judgment; prior to bringing any application to enforce this Judgment, Plaintiffs
counsel shall attempt to personally meet and confer with Defendant, or Defendant’s counsel if
represented, to address the circumstances and obtain reasonable compliance. Also, the Court may
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extend the deadlines for compliance for good cause shown upon timely application by Defendant
(after Defendant first confers with Plaintiffs’ counsel).
7.

Immediately upon receipt of this Judgment, the Plaintiffs shall serve a copy, via

Certified, Return Receipt Requested U.S. Mail, of this Default Final Judgment upon Defendant,
Evergreen I Associates, LLC d/b/a Evergreen Plaza c/o its Registered Agent, Nicholas J. Aynilian,
381 Broadway, Second Floor, Westwood, NJ 07675, and shall certify to this Court that said service
has been made or attempted; and
8.

To the extent not otherwise disposed of herein, all pending Motions are hereby

DENIED as moot.
ORDERED AND ADJUDGED in Chambers in Camden, NJ, on this
December, 2017.

s/ Jerome B. Simandle
JEROME B. SIMANDLE
U.S. District Judge

5

21st

day of