Shalto v. Rangdhonu Cafe et al

Filing 33

ORDER ADOPTING IN PART AND MODIFYING IN PART REPORT AND RECOMMENDATIONS. For the reasons set forth in the attached Memorandum and Order, the court adopts in part and modifies in part the Report and Recommendation issued by Magistrate Judge Scanlon o n February 6, 2013 32 as modified herein. Accordingly, the court: (1) grants plaintiff's motion for default judgment declaring that defendant is liable under the ADA, the NYSHRL, the NYCHRL, and the New York Civil Rights Law for disabi lity discrimination as a result of defendant's (a) failure to have a wheelchair-access ramp; (b) failure to post required signage; (c) failure to post said signage in the adequate format; (d) failure to have handrails at the sides of the stairs; and (e) failure to offer an accessible lavatory; (2) denies plaintiff's motion for default judgment declaring that defendant is liable under the ADA, the NYSHRL, the NYCHRL and the New York Civil Rights Law for disability discrimination as a result of defendant's failure to have a three-foot high and three-foot long sales counter; (3) grants plaintiff's request for an injunction requiring defendant to install a wheelchair ramp, to post signs, to ensure that the sign s are ADA-compliant in terms of font and mounting specifications, to install handrails at the sides of stairs, and to modify lavatory accommodations pursuant to the ADA Accessibility Guidelines requirements, and orders defendant to remove the aforem entioned architectural barriers in accordance with the ADA within four months of the entry of final default judgment; (4) denies plaintiff's request for an injunction requiring the installation of a three-foot high by three-foot lo ng sales counter; (5) grants plaintiff's petition for compensatory damages for mental distress in the total amount of $1,000 under the NYSHRL and NYCHRL; (6) denies plaintiff's motion for prejudgment interest on the $ ;1,000 compensatory damages award for mental distress; (7) denies plaintiff's petition for punitive damages under the NYCHRL; (8) grants plaintiff's petition for statutory damages under the New York Civil Rights Law in the tot al amount of $500; (9) grants plaintiff's motion for costs in the total amount of $350 for the court filing fee; (10) denies plaintiff's motion for costs relating to an architect; and (11) denies plaintiff 9;s motion for attorney's fees. Plaintiff shall serve a copy of this Memorandum and Order and the Clerk's Judgment upon defendant and file a certificate of service via ECF within one business day after entry. The clerk of court is respectfully requested to enter judgment in favor of plaintiff in accordance with this Memorandum and Order and to close this case. Ordered by Judge Kiyo A. Matsumoto on 3/7/2013. (Kelley, Jamuna)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
------------------------------------- X
LESALDO SHALTO,
ORDER ADOPTING IN PART
AND MODIFYING IN PART
REPORT AND
RECOMMENDATION

Plaintiff,
-againstBAY OF BENGAL KABOB CORP.,

12-cv-920(KAM)(VMS)

Defendant.
X
------------------------------------MATSUMOTO, United States District Judge:
On March 20, 2012, plaintiff Lesaldo Shalto
(“plaintiff”), filed an amended complaint against defendant Bay
of Bengal Kabob Corp. 1 (“defendant”), alleging public
accessibility violations of Title III of the Americans with
Disabilities Act (“ADA”), 42 U.S.C. §§ 12181 et seq.; New York
State Human Rights Law (“NYSHRL”), N.Y. State Executive Law
§ 296(2)(a); New York City Human Rights Law (“NYCHRL”),
Administrative Code of the City of New York § 8-107(4); and New
York Civil Rights Law § 40-c.

(See generally ECF No. 13,

Amended Complaint, filed 3/20/12 (“Am. Compl.”).)

Plaintiff

seeks compensatory and punitive damages, injunctive relief,
attorney’s fees, and costs.
1

Plaintiff originally commenced this action in December 2011 against several
defendants but all defendants other than Bay of Bengal Kabob Corp. were
removed upon plaintiff’s filing of his amended complaint on March 20, 2012,
or by stipulation and order. (See generally ECF No. 1, Complaint filed
12/2/11; ECF No. 13, Amended Complaint, filed 3/20/12; ECF No. 31,
Stipulation and Order of Dismissal Against Washington Court, LLC, With
Prejudice, filed 11/13/12.)

Despite being properly served with the amended
complaint through the New York Secretary of State, defendant has
failed to answer or otherwise move in response to the amended
complaint.

On May 23, 2012 the Clerk of Court noted the default

against defendant.
5/23/12.)

(ECF No. 20, Clerk’s Entry of Default, filed

On July 2, 2012, plaintiff filed a motion for entry

of default judgment.

(ECF No. 26, Plaintiff’s Motion for

Default Judgment, filed 7/2/12 (“Pl. Mot.”).)

On September 5,

2012, the court referred plaintiff’s motion for default judgment
to Magistrate Judge Vera M. Scanlon for a report and
recommendation.

(Order Referring Motion, dated 9/5/12.)
DISCUSSION

Presently before the court is a Report and
Recommendation issued by Magistrate Judge Scanlon on February 6,
2013, recommending that the court deny in part and grant in part
defendant’s motion for default judgment and requested relief.
(ECF No. 32, Report and Recommendation dated 2/6/13 (“R&R”), at
22-24.)

Specifically, Magistrate Judge Scanlon recommended that

the court: (1) grant plaintiff’s motion for default judgment
declaring that defendant is liable under the ADA, the NYSHRL,
the NYCHRL, and the New York Civil Rights Law for disability
discrimination as a result of defendant’s (a) failure to have a
wheelchair-access ramp; (b) failure to post required signage;
(c) failure to post said signage in the adequate format; (d)

2

failure to have handrails at the sides of the stairs; and (e)
failure to offer an accessible lavatory; (2) deny plaintiff’s
motion for default judgment declaring that defendant is liable
under the ADA, the NYSHRL, the NYCHRL and the New York Civil
Rights Law for disability discrimination as a result of
defendant’s failure to have a three-foot high and three-foot
long sales counter; (3) grant plaintiff’s request for an
injunction requiring defendant to install a wheelchair ramp, to
post signs, to ensure that the signs are ADA compliant in terms
of font and mounting specifications, to install handrails at the
sides of stairs, and to modify lavatory accommodations pursuant
to the ADA Accessibility Guidelines (“ADAAG”) requirements, and
to require defendant to remove the aforementioned architectural
barriers in accordance with the ADA within four months of the
entry of final default judgment; (4) deny plaintiff’s request
for an injunction requiring the installation of a three-foot
high by three-foot long sales counter; (5) grant plaintiff’s
petition for compensatory damages for mental distress in the
amount of $1,000 under the NYSHRL and NYCHRL; (6) deny
plaintiff’s motion for prejudgment interest on the $1,000
compensatory damages award for mental distress; (7) deny
plaintiff’s petition for punitive damages under the NYCHRL; (8)
grant plaintiff’s petition for statutory damages under the New
York Civil Rights Law in the amount of $500; (9) grant

3

plaintiff’s motion for costs in the amount of $488 for filing
and process server fees; (10) deny plaintiff’s motion for costs
relating to an architect, but allow plaintiff leave to refile
the motion with proper evidentiary support; and (11) deny
plaintiff’s motion for attorney’s fees, but allow plaintiff
leave to refile the motion with proper evidentiary support.
(Id. at 2-3, 22-23.)
As explicitly noted at the end of Magistrate Judge
Scanlon’s Report and Recommendation, any objections to the
Report and Recommendation were to be filed on or before February
25, 2013.

(R&R at 23.)

The Report and Recommendation was

mailed to defendant by court staff on February 6, 2013 (id.),
and plaintiff’s counsel was served via the ECF filing system.
The period for filing objections has expired, and no objections
to Magistrate Judge Scanlon’s Report and Recommendation have
been filed by either party.
In reviewing a Report and Recommendation, the district
court “may accept, reject, or modify, in whole or in part, the
findings or recommendations made by the magistrate judge.”
U.S.C. § 636(b)(1)(C).

28

Where no objection to the Report and

Recommendation has been filed, the district court “need only
satisfy itself that that there is no clear error on the face of
the record.”

Urena v. New York, 160 F. Supp. 2d 606, 609-10

(S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186,

4

1189 (S.D.N.Y. 1985)).
Upon a careful review of the Report and Recommendation
and the record in this case, and considering that neither party
has objected to any of Magistrate Judge Scanlon’s thorough and
well-reasoned recommendations, the court hereby adopts in part
and modifies in part the Report and Recommendation.
Specifically, the court adopts the Report and Recommendation
with the exception of its recommendations that plaintiff should
be granted leave to resubmit his application for attorney’s fees
and costs relating to an architect and that plaintiff should be
awarded costs in the amount of $488 for filing and process
server fees.
Second Circuit precedent requires a party seeking an
award of attorney’s fees to support its request with
contemporaneous time records that show “for each attorney, the
date, the hours expended, and the nature of the work done.”
N.Y. State Ass’n for Retarded Children, Inc. v. Carey, 711 F.2d
1136, 1148 (2d Cir. 1983).

Fee applications that do not contain

such supporting data “should normally be disallowed.”

Id. at

1154; see also Kingvision Pay–Per–View, Ltd. v. The Body Shop,
No. 00-cv-1089, 2002 WL 393091, at *5 (S.D.N.Y. Mar. 13, 2002)
(request for attorney’s fees and costs denied where plaintiff
offered no supporting documentation).
Similarly, with respect to costs, “a court will

5

generally award ‘those reasonable out-of-pocket expenses
incurred by attorneys and ordinarily charged to their clients.’”
Pennacchio v. Powers, No. 05-cv-985, 2011 WL 2945825, at *2
(E.D.N.Y. July 21, 2011) (quoting LeBlanc–Sternberg v. Fletcher,
143 F.3d 748, 763 (2d Cir. 1998)).

Nevertheless, “[t]he fee

applicant bears the burden of adequately documenting and
itemizing the costs requested.”

Id. (citation omitted).

In this case, plaintiff has had more than ample time
and opportunity to assemble and file necessary and sufficient
documentary support for his request for attorney’s fees and
costs.

Plaintiff’s request for fees and costs in connection

with his motion for default judgment was filed in July 2012 but
wholly lacks supporting documentation of, inter alia,
“contemporaneous time records” for plaintiff’s counsel and costs
incurred.

(See generally Pl. Mot.)

Plaintiff’s request also

fails to provide any receipts or invoices from the process
server and architect he purports to have engaged in this
litigation.

(See id.)

Plaintiff has never sought to supplement

his fee and cost applications, nor did he object to the Report
and Recommendation insofar as it recommended immediate denial of
his request for fees and costs for failure to document his
claims.

The court thus denies plaintiff’s unsupported request

for attorney’s fees and for the cost of an architect, without
leave to file any further submissions.

6

See Kingvision, 2002 WL

393091, at *5.

Plaintiff’s requested $350 fee for filing this

action, however, is verified by the docket in this case.

(See

ECF No. 1, Complaint (clerk’s entry reflecting payment of $350
filing fee); see also U.S. District Court, Eastern District of
New York, Court Fees, https://www.nyed.uscourts.gov/court-fees
(last visited Mar. 7, 2013) (displaying filing fee amount of
$350).)

Therefore, plaintiff’s motion for costs is granted in

the amount of $350 for the court filing fee.
While the Report and Recommendation did not explicitly
address plaintiff’s standing to seek injunctive relief under
Title III of the ADA, the court observes that plaintiff’s
allegations satisfy the standing requirements in this Circuit.
“[T]o establish standing in an ADA suit seeking injunctive
relief based upon lack of access to a public accommodation, . .
. a plaintiff must (1) ‘allege[] past injury under the ADA’; (2)
show that ‘it is reasonable to infer from [his or] her complaint
that this discriminatory treatment will continue’; and (3) show
that ‘it is also reasonable to infer, based on the past
frequency of [his or] her visits and the proximity of [the
public accommodation] to [his or] her home, that [he or she]
intends to return to [the public accommodation] in the future.’”
Harty v. Simon Prop. Group, L.P., 428 F. App’x 69, 71 (2d Cir.
2011) (quoting Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d
Cir. 2008)).

“Courts considering ADA claims have found that

7

disabled plaintiffs who had encountered barriers at restaurants,
stores, hotels, or stadiums prior to filing their complaints
have standing to bring claims for injunctive relief if they show
a plausible intention or desire to return to the place but for
the barriers to access.”

Disabled in Action of Metro. New York

v. Trump Int’l Hotel & Tower, No. 01-cv-5518, 2003 WL 1751785,
at *7 (S.D.N.Y. Apr. 2, 2003) (citations omitted).
In this case, plaintiff’s amended complaint
establishes standing to seek injunctive relief.

Plaintiff

alleges that he was last denied access to defendant’s premises
on August 25, 2011, and that he has often attempted but has been
previously unable to gain access.

(Am. Compl. ¶¶ 5, 7.)

Plaintiff also alleges that he is a resident of New York state,
he is a regular visitor to the area in which the subject
premises is located, he regularly patronizes establishments in
that area and has been for several years, and he will return to
defendant’s premises to eat there “as soon as it is made
accessible to him in accordance with the ADA.”

(Id. ¶¶ 3, 6-7.)

These allegations, which must be taken as true, establish that
plaintiff has actual knowledge of barriers to defendant’s place
of public accommodation, that he would visit the premises but
for the presence of those barriers, and that he intends to
return to the premises in the immediate future (i.e., as soon as
it is made accessible).

Such allegations have been found to

8

establish standing to seek injunctive relief under Title III of
the ADA.

See, e.g., Hirsch v. Hui Zhen Huang, No. 10-cv-9497,

2011 WL 6129939, at *3 (S.D.N.Y. Dec. 9, 2011) (plaintiff’s
allegations that he once visited restaurant in the past and
intends to return once it is made accessible were adequate to
establish standing for injunctive relief); Access 4 All, Inc. v.
G&T Consulting Co., No. 06-cv-13736, 2008 WL 851918, at *4
(S.D.N.Y. Mar. 8, 2008) (holding that Title III ADA plaintiffs
“must at least prove actual knowledge of the barriers and show
that they would visit the building in the imminent future but
for those barriers”); Access 4 All, Inc. v. Trump Int’l Hotel &
Tower Condo., 458 F. Supp. 2d 160, 167 (S.D.N.Y. 2006) (finding
that “awareness of discriminatory conditions, and the avoidance
of a public accommodation because of that awareness, is injury
in fact” that confers standing, regardless of whether a
wheelchair user actually entered the defendant premises);
Disabled in Action, 2003 WL 1751785, at *8 (holding plaintiffs’
allegations that they intended to return to a restaurant “in the
future” were “plausible given the fact that they live[d] in New
York and ha[d] been to the restaurant in the past”; and
collecting cases).
With respect to Magistrate Judge Scanlon’s
recommendation that the court grant injunctive relief against
defendant, the court also notes that, in New York, injunctive

9

relief may be awarded even when the defendant corporation is
dissolved as long as the cause of action accrued before
dissolution.

N.Y. Bus. Corp. Law § 1006(b) (“The dissolution of

a corporation shall not affect any remedy available to or
against such corporation . . . for any right or claim existing
or any liability incurred before such dissolution, . . . .”);
Hudson River Fishermen’s Ass’n v. Arcuri, 862 F. Supp. 73, 77
(S.D.N.Y. 1994) (“[I]njunctive relief as well as statutory
damages and attorney’s fees and costs found to be appropriate at
inquest by the Magistrate Judge are available under New York law
even where a corporation is dissolved, if the cause of action as
here accrues before dissolution.”) (citation omitted).

Here,

given that plaintiff last observed defendant’s restaurant in
operation in August 2011, plaintiff’s cause of action plainly
accrued before any potential dissolution of defendant.

Yet,

there may be a risk that defendant is no longer operational at
the time this order is entered against it.

Nonetheless,

applying the above principles, Magistrate Judge Scanlon’s
recommendation that defendant be enjoined to cure the ADA
violations enumerated in the Report and Recommendation is still
appropriate.

See Hudson River, 862 F. Supp. at 77.

Finally, regarding the Report and Recommendation’s
recommended award of $500 in compensatory damages pursuant to
New York Civil Rights Law §§ 40-c, 40-d (R&R at 19), this

10

statute also requires that “[a]t or before the commencement of
any action under this section, notice thereof shall be served
upon the attorney general.”

N.Y. Civ. Rights L. § 40-d.

New

York courts have consistently held that notice to the attorney
general is an essential prerequisite to actions for violations
of § 40-c.

See, e.g., Sundaram v. Brookhaven Nat’l Labs., 424

F. Supp. 2d 545, 571 (E.D.N.Y. 2006) (applying New York law);
Giaimo & Vreeburg v. Smith, 192 A.D.2d 41, 45-46, 599 N.Y.S.2d
841, 844 (2nd Dep’t 1993).

Plaintiff has alleged that such

notice has been served in this case.

(Am. Compl. ¶ 41.)

Therefore, the $500 compensatory damage award under N.Y. Civ.
Rights L. § 40-c is appropriate for this reason in addition to
the reasons explained by Magistrate Judge Scanlon.

(See R&R

at 19.)
Accordingly, for the reasons discussed above and
stated in the Report and Recommendation, the court orders that
plaintiff’s motion for default judgment is denied in part and
granted in part as set forth in Magistrate Judge Scanlon’s
Report and Recommendation dated February 6, 2013 and as modified
herein.
CONCLUSION
For the reasons set forth above, the court: (1) grants
plaintiff’s motion for default judgment declaring that defendant
is liable under the ADA, the NYSHRL, the NYCHRL, and the New

11

York Civil Rights Law for disability discrimination as a result
of defendant’s (a) failure to have a wheelchair-access ramp; (b)
failure to post required signage; (c) failure to post said
signage in the adequate format; (d) failure to have handrails at
the sides of the stairs; and (e) failure to offer an accessible
lavatory; (2) denies plaintiff’s motion for default judgment
declaring that defendant is liable under the ADA, the NYSHRL,
the NYCHRL and the New York Civil Rights Law for disability
discrimination as a result of defendant’s failure to have a
three-foot high and three-foot long sales counter; (3) grants
plaintiff’s request for an injunction requiring defendant to
install a wheelchair ramp, to post signs, to ensure that the
signs are ADA-compliant in terms of font and mounting
specifications, to install handrails at the sides of stairs, and
to modify lavatory accommodations pursuant to the ADA
Accessibility Guidelines (“ADAAG”) requirements, and orders
defendant to remove the aforementioned architectural barriers in
accordance with the ADA within four months of the entry of final
default judgment; (4) denies plaintiff’s request for an
injunction requiring the installation of a three-foot high by
three-foot long sales counter; (5) grants plaintiff’s petition
for compensatory damages for mental distress in the total amount
of $1,000 under the NYSHRL and NYCHRL; (6) denies plaintiff’s
motion for prejudgment interest on the $1,000 compensatory

12

damages award for mental distress; (7) denies plaintiff’s
petition for punitive damages under the NYCHRL; (8) grants
plaintiff’s petition for statutory damages under the New York
Civil Rights Law in the total amount of $500; (9) grants
plaintiff’s motion for costs in the total amount of $350 for the
court filing fee; (10) denies plaintiff’s motion for costs
relating to an architect; and (11) denies plaintiff’s motion for
attorney’s fees.
Plaintiff shall serve a copy of this Memorandum and
Order and the Clerk’s Judgment upon defendant and file a
certificate of service via ECF within one business day after
entry.

The clerk of court is respectfully requested to enter

judgment in favor of plaintiff in accordance with this
Memorandum and Order and to close this case.

SO ORDERED.
Dated:

March 7, 2013
Brooklyn, New York
___/s/______ _____
Kiyo A. Matsumoto
United States District Judge
Eastern District of New York

13