Shalto v. Rangdhonu Cafe et al

Filing 1

COMPLAINT against Rangdhonu Cafe, Washington Court LLC. (Filing Fee $ 350.00, Receipt Number 465401023347)Document filed by Lesaldo Shalto.(rdz) (ama). [Transferred from New York Southern on 2/27/2012.]

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
LESALDO SHALTO,

Case No. 11 CIV 8794 (JGK)
ECF Case

Plaintiff,

COMPLAINT

-againstRANGDHONU CAFE and WASHINGTON COURT
LLC,
Defendants.

Plaintiff, Lesaldo Shalto (hereinafter “Plaintiff”), through his undersigned counsel,
hereby files this Complaint and sues defendants, RANGDHONU CAFE (hereinafter the “Cafe”)
and defendant, WASHINGTON COURT LLC, (the “LLC”) (the Cafe and the LLC being
hereinafter collectively known as the “Defendants”), for damages, injunctive relief, attorney’s
fees and costs (including, but not limited to, court costs and expert fees) pursuant to 42 U.S.C.
12181, et. seq., of the Americans with Disabilities Act (“ADA”) and the New York State Human
Rights Law (“NYSHRL”) and alleges:
JURISDICTION AND PARTIES
1.

This is an action for damages, declaratory and injunctive relief pursuant to Title

III of the Americans With Disabilities Act, 42 U.S.C. §12181, et. seq., (hereinafter referred to as
the “ADA”). This Court is vested with original jurisdiction under 28 U.S.C. §1331 and §1343.
2.

Venue is proper in this Court, pursuant to 28 U.S.C. §1391(B) in that all events

giving rise to this lawsuit occurred in New York.
3.

The remedies provided by the New York State Human Rights Law (hereinafter

referred to as the “NYSHRL”) are not exclusive and state administrative remedies need not be
exhausted in connection with suits brought under the Federal Civil Rights Act.

4.

Upon information and belief, the defendants are authorized to conduct, and are

conducting business within the State of New York. Upon information and belief, the LLC is the
owner of the commercial real property located at 29-14 36th Avenue, Long Island City, New
York (hereinafter referred to as the “Offending Property”) and the Cafe is the lessee and/or
operator of a retail food establishment located in the Offending Property (hereinafter the
“Subject Facility”).
5.

At the time of Plaintiff’s visit to the Subject Facility, prior to instituting the

instant action, Plaintiff was a resident of the State of New York, suffered from what constitutes a
“qualified disability” under the Americans With Disabilities Act of 1990, as he is paralyzed from
the waste down and is confined to a wheelchair for mobility. The Plaintiff personally visited the
Subject Facility, but was denied full and equal access to, and full and equal enjoyment of, the
facilities at the Subject Facility.
6.

All events giving rise to this lawsuit occurred in the City of New York, State of

New York. Venue is proper in this Court as the Subject Facility and the Offending Property are
located in the State of New York and the plaintiff resides in New York County.
COUNT I – VIOLATIONS OF THE AMERICANS WITH DISABILITIES ACT

7.

On or about July 26, 1990, Congress enacted the Americans With Disabilities Act

(“ADA”), 42 U.S.C. §12101 et. seq. Commercial enterprises were provided one and a half years
from enactment of the statute to implement its requirements. The effective date of the Title 111
of the ADA was January 26, 1992. 42 U.S.C. §12181; 20 C.F.R. §36.508(a).
8.

Congress found, among other things, that:
(i) some 43,000,000 Americans have one or more physical or mental disabilities,
and this number shall increase as the population continues to grow older;
(ii) historically, society has tended to isolate and segregate individuals with
disabilities, and, despite some improvements, such forms of discrimination against
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disabled individuals continue to be a pervasive social problem, requiring serious
attention;
(iii) discrimination against disabled individuals persists in such critical areas as
employment, housing, public accommodations, transportation, communication,
recreation, institutionalization, health services, voting and access to public services
and public facilities;
(iv) individuals with disabilities continually suffer forms of discrimination,
including outright intentional exclusion, the discriminatory effects of architectural,
transportation, and communication barriers, failure to make modifications to existing
facilities and practices. Exclusionary qualification standards and criteria, segregation,
and regulation to lesser services, programs, benefits, or other opportunities; and,
(v) the continuing existence of unfair and unnecessary discrimination and prejudice
denies people with disabilities the opportunity to compete on an equal basis and to
pursue those opportunities for which our country is justifiably famous, and costs the
United States billions of dollars in unnecessary expenses resulting from dependency
and non-productivity.
42 U.S.C. §12101 (a)(1)-(3), (5) and (8).
9.

Congress explicitly stated that the purpose of the ADA was to:
(i) provide a clear and comprehensive national mandate for the elimination of
discrimination against individuals with disabilities;
(ii) provide clear, strong, consistent, enforceable standards addressing
discrimination against individuals with disabilities; and,
(iii) invoke the sweep of congressional authority, including the power to enforce the
fourteenth amendment and to regulate commerce, in order to address the major areas
of discrimination faced on a daily by people with disabilities.

42 U.S.C. §12101(b)(1)(2) and (4).
10.

Pursuant to 42 U.S.C. §12181(7)(E) and 28 C.F.R. §36.104, the Subject Facility is

a place of public accommodation in that it is an establishment which provides goods and services
to the public.
11.

Pursuant to 42 U.S.C. §12181(7)(E) and 28 C.F.R. §36.104, the Subject Facility

which is the subject of this action is a public accommodation covered by the ADA and which
must be in compliance therewith.
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12.

The Plaintiff is informed and believes, and therefore alleges, that the Subject

Facility has begun operations and/or undergone substantial remodeling, repairs and/or alterations
since January 26, 1990.
13.

Defendants have discriminated, and continue to discriminate, against the Plaintiff,

and others who are similarly situated, by denying full and equal access to, and full and equal
enjoyment of, goods, services, facilities, privileges, advantages and/or accommodations at the
Subject Facility, in derogation of the findings contained in 42 U.S.C. §12101 and the
prohibitions of §12182(a) and by failing to remove architectural barriers pursuant to 42 U.S.C.
§12182(b)(2)(A)(iv), where such removal is readily achievable.
14.

The Plaintiff has been unable to, and continues to be unable to, enjoy full and

equal safe access to, and the benefits of, all the accommodations and services offered at the
Subject Facility. Prior to the filing of this lawsuit, Plaintiff personally visited the Subject
Facility, with the intention of using the facilities at the Subject Facility, but was denied access to
the Subject Facility, and therefore suffered an injury in fact. In addition, Plaintiff continues to
desire to visit the Subject Facility in the future, but continues to be injured in that he is unable to
and continues to be discriminated against due to the architectural barriers which remain at the
Subject Facility, all in violation of the ADA, and the NYSHRL.
15.

Pursuant to the mandates of 42 U.S.C. §12134(a), the Department of Justice,

Office of the Attorney General, promulgated Federal Regulations to implement the requirements
of the ADA, known as the Americans with Disabilities Act Accessibility Guidelines (hereinafter
“ADAAG”), 28 C.F.R. Part 36, under which said Department may obtain civil penalties of up to
$55,000 for the first violation and $110,000 for any subsequent violation.

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16.

The Offending Property and the Subject Facility are in violation of 42 U.S.C.

§12181 et. seq., the ADA and 28 C.F.R. §36.302 et. seq., and are discriminating against the
Plaintiff as a result of inter alia, the following specific violations:
(i)

Failure to provide an accessible entrance, due to steps and the failure to

install ramps with appropriate slope and signage, and/or otherwise provide an accessible public
accommodation, as required by 28 C.F.R. Part 36. The steps represent an insurmountable barrier
to independent entry by the Plaintiff and other individuals who use wheelchairs.
(ii)

Failure to provide adequate ADA compliant directional and accurate

information signage throughout the Subject Facility, in violation of 28 C.F.R. Part 36, Section
4.1.3(16).
(iii)

Failure to provide adequate ADA compliant signage addressing people

with disabilities telling them that accessible services are provided, as required by 28 C.F.R. Part
36, Section 4.30.4.
(iv)

The sales counter located at Subject Facility is inaccessible, in violation of

28 C.F.R. Part 36, Section 7.2(1), which requires that a portion of the main counter which is a
minimum of 36 inches (915mm) in length shall be provided with a maximum height of 36 inches
(915 mm) above the finished floor.
(v)

The Subject Facility does not provide railings which meet the

requirements for accessibility, in violation of ADAAG 4.9.4.
(vi)

The lavatory does not comply with accessibility requirements, in violation

of ADAAG 4.13.9 and the locations and clearances for grab bars and fixtures are in violation of
ADAAG 4.16 and 4.17.
17.

Upon information and belief, there are other current violations of the ADA at the

Subject Facility, and only once a full inspection is done can all such violations be identified.
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18.

To date, the readily achievable barriers and other violations of the ADA still exist

and have not been remedied or altered in such a way as to effectuate compliance with the
provisions of the ADA.
19.

Pursuant to the ADA, 42 U.S.C. §12101 et. seq., and 28 C.F.R. §36.304, the

Defendants were required to make the Subject Facility, a place of public accommodation,
accessible to persons with disabilities since January 28, 1992. To date, the Defendants have
failed to comply with this mandate.
20.

Pursuant to 42 U.S.C. §12188, this Court is vested with the authority to grant the

Plaintiff’s injunctive relief; which would include an order to alter the Subject Facility to make it
readily accessible to, and useable by, individuals with disabilities to the extent required by the
ADA, and closing the Subject Facility until the requisite modifications are completed.
COUNT II – VIOLATIONS OF THE NEW YORK CITY HUMAN RIGHTS LAW

21.

The New York City Human Rights Law provides:

(a)
It shall be an unlawful discriminatory practice for any person, being the owner,
lessee, proprietor, manager, superintendent, agent or employee of any place or provider of public
accommodation because of the actual or perceived … disability … of any person, directly or
indirectly, to refuse, withhold from or deny to such person any of the accommodations,
advantages, facilities and privileges of any such place or provider shall be refused, withheld from
or denied to any person on account of … disability …
NYC Admin. Code § 8-107(4)(a).
22.

Defendants are in violation of the New York City Human Rights Law by denying

the Plaintiff full and safe access to all of the benefits, accommodations and services of the
Subject Facility.
COUNT III – VIOLATIONS OF THE NEW YORK STATE HUMAN RIGHT LAW

23.

The Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 22 as

if set forth in their entirety here.
24.

The New York State Human Rights Law provides:

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(a)
It shall be an unlawful discriminatory practice for any person, being the owner,
lessee, proprietor, manager, superintendent, agent or employee of any place of public accommodation …
because of the … disability … of any person, directly or indirectly, to refuse, withhold from or deny to
such person any of the accommodations, advantages facilities or privileges thereof … to the effect that
any of the accommodations, advantages, facilities and privileges of any such place shall be refused,
withheld from or denied to any person on account of … disability …
NYS Exec. Law § 296 (2)(a).
25.

The Subject Facility is a place of public accommodation as defined in the New York

State Human Rights Law.
26.

The Defendants have further violated the New York State Human Rights Law by being in

violation of the rights provided under the ADA.
27.

Defendants are in violation of the New York State Human Rights Law by denying the

Plaintiff full and safe access to all of the benefits, accommodations and services of the Subject Facility.
ATTORNEYS’ FEES AND COSTS
28.

The Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 27. as if set

forth in their entirety here.
29.

The Plaintiff has been obligated to retain the undersigned counsel for the filing and

prosecution of this action. The Plaintiff is entitled to have his reasonable attorneys’ fees, costs, and
expenses paid by the Defendants, pursuant to the ADA and the New York City Human Rights Law.
30.

Plaintiff prays for judgment pursuant to N.Y. Exec. Law § 297, including compensatory

damages contemplated by § 297(9).
DAMAGES
31.

The Plaintiff repeats and re-alleges the allegations of paragraphs 1 through 30 as if set

forth in their entirety here.
32.

The Plaintiff demands One Thousand Five Hundred Dollars ($1,500.00) in compensatory

damages based on the Defendant’s violation of the New York City Human Rights Law and the New York
State Human Rights Law.
33.

Pursuant to 42 U.S.C. §12188, this Court is vested with the authority to grant the

Plaintiff’s injunctive relief; including an order to alter the Subject Facility to make them readily
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accessible to, and useable by, individuals with disabilities to the extent required by the ADA, the
New York City Human Rights Law, and the New York State Human Rights Law and closing the
Subject Facility until the requisite modifications are completed.
WHEREFORE, the Plaintiff hereby demands judgment against the Defendants and request the
following injunctive and declaratory relief:
A.

The Court declares that the Offending Property and Subject Facility owned, operated,

leased, controlled and/or administered by the Defendants are violating the ADA and the NYSHRL;
B.

The Court enter an Order requiring the Defendants to alter their facilities and amenities

to make them accessible to and usable by individuals with disabilities to the full extent required by the
ADA and by the NYSHRL;
C.

The Court enter an Order directing the Defendants to evaluate and neutralize their

policies, practices and procedures toward persons with disabilities, for such reasonable time so as to allow
the Defendants to undertake and complete corrective procedures to the Subject Facility;
D.

The Court award Plaintiff One Thousand Five Hundred Dollars ($1,500.00) in

compensatory damages;
E.

The Court award reasonable attorney’s fees, all costs (including, but not limited to

court costs and expert fees) and other expenses of suit, to the Plaintiff; and
F.

The Court award such other and further relief as it deems necessary, just and proper.

Dated: December 1, 2011
Donald J. Weiss, Esq. (7619)
Attorney for Plaintiff
363 Seventh Avenue
New York, New York 10001
[phone]

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