Garnet v. Ramos Brothers Inc

Filing 15

ORDER: The Court adopts the recommendation of Magistrate Bloom. Motion is denied. Plaintiff may amend his complaint within 20 days. 2/14/2017 (Brown, Marc).

Case 1:16-cv-02792-RJD-LB Document 13 Filed 01/17/17 Page 1 of 6 PagelD #: 54

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK

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EDWARD GARNET,

Plaintiff,

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REPORT & RECOMMENDATION
16 CV 2792 (RJD)(LB)

-againstRAMOS BROTHERS INC.,
Defendant.

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("Ramos"), for 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. Exec Law§ 296(2)(a);
and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code§ 8-107.4(a).
Despite proper service of the summons and complaint, Ramos has failed to plead or otherwise
defend this action. Plaintiff now moves for a default judgment pursuant to Rule 55(b) of the
Federal Rules of Civil Procedure. The Honorable Raymond J. Dearie referred plaintiff's motion
for a default judgment to me for a Report and Recommendation in accordance with 28 U .S.C. §
636(b). For the reasons set forth below, it is respectfully recommended that plaintiff's motion for
a default judgment should be denied without prejudice.

BACKGROUND
Plaintiff is a resident of the State of New York, suffers from cerebral palsy, a congenital
disorder that impairs his motor and sensory functions. (ECF No. 1, "Compl.", ~ 4.) As a result,
plaintiff uses a wheelchair for mobility. (ML) Plaintiff alleges that defendant is the "owner, lessee
and/or operator" of property located at 190-05 Union Turnpike in Queens, New York 11366

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Case 1:16-cv-02792-RJD-LB Document 13 Filed 01/17/17 Page 2 of 6 PagelD #: 55

("Property"). 1 ffih at~ 5.) In or about March 2016, plaintiff visited the Property but was denied
full and equal access due to several "architectural barriers". (Id. at~~ 4, 14.) Plaintiff alleges that
defendant's Property violates the ADA due to, inter alia, inaccessible parking, ramps, and curbs.

(Mh at~ 16.)
Plaintiff commenced this action on June 1, 2016 seeking injunctive and declaratory relief,
compensatory damages, as well as attorneys' fees and costs. (ECF No. 1.) Despite proper service,
defendant has failed to appear or otherwise defend this action. On June 28, 2016, plaintiff
requested a certificate of default against defendant and the Clerk of Court noted Entry of Default
on July 11, 2016. (ECF Nos. 5, 7.) On July 19, 2016, plaintiff filed a motion for adefaultjudgment.
(ECF No. 8.) On August 25, 2016, the motion for a default judgment was referred to me. On
August 30, 2016, I directed plaintiff ''to file a memorandum of law setting forth the cases and
other authorities relied upon in support of his motion" and directed counsel "to provide the Court
with appropriate documentation to support his claim for attorneys' fees." (ECF No. 9.) The very
next day, August 31, 2016, plaintiff filed a two paragraph "Memorandum of Law in Support of
Plaintiffs Motion for Default Judgment" ("Memorandum of Law") along with a spreadsheet of
counsel's billing records. (ECF Nos. 11, 11-1.)

DISCUSSION
I.

Standing

Standing is an "irreducible constitutional minimum." Lujan v. Defenders of Wildlife, 504
U.S. 555, 560 (1992). Thus, even though defendant has not appeared in this action and has not
challenged plaintiffs standing to sue, the Court evaluates whether plaintiff has standing. See
Access 4 All, Inc. v. Thirty E. 30th St.. LLC, No. 04 Civ. 3683 (KMW)(DF), 2006 U.S. Dist.

1 Plaintiff provides

no additional information regarding the Property. (See generally Compl.)

2

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LEXIS 96742, at *35-36 (S.D.N.Y. Dec. 11, 2006) ("Ensuring that standing requirements are met
by each plaintiff in each lawsuit brought under the ADA enables courts to ensure that the ADA is
not being abused ...."). In the ADA context, where plaintiff seeks injunctive relief based upon
lack of access to a public accommodation, 2 a plaintiff establishes standing if:
(1) the plaintiff allege[s] past injury under the ADA; (2) it [is] reasonable to infer
that the discriminatory treatment [will] continue; and (3) it [is] reasonable to infer,
based on the past frequency of plaintiffs visits and the proximity of [the public
accommodation] to plaintiffs home, that plaintiff intend[s] to return to the subject
location.

Kreisler v. Second Ave. Diner Coro., No. 12 CV 4093, 2013 U.S. App. LEXIS 19642, at *6 (2d
Cir. Sept. 25, 2013) (citing Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008) (per
curiam)); accord Harty v. Simon Prop. Group. L.P., 428 F. App'x 69, 71 (2d Cir. 2011). Plaintiffs
complaint establishes the first two elements, 3 but fails to sufficiently establish that plaintiff intends
to return to the Property.
"[N]o standard has been established for the necessary degree of 'likelihood' that an ADA
plaintiff will return, nor a specific number of times per year that plaintiff will visit the facility, nor
even how far forward in time should be considered in determining whether the injury might be
imminent[.]" Access 4 All, Inc. v. G&T Consulting Co., LLC, No. 06 CV 13736 (DF), 2008 WL
851918, at* 8 (S.D.N.Y. Mar. 28, 2008) (citations omitted). However, "courts have considered

2 The

sole remedy available under the ADA is injunctive relief; there is no damage remedy. See 42 U .S.C. §§
12188(a); 12182(b)(A}(iv).
3 Plaintifrs complaint barely satisfies the past injury requirement under the ADA. Plaintiff has a clearly established
statutorily protected disability and he was unable to enter defendant's business due to architectural barriers. See~
Shariffv. Beach 90th St. Realty Corp .. No. 11 CV 2551 {ENV)(LB}, 2013 WL 6835157, at *2 (E.D.N.Y. Dec. 20,
2013); Shalto v. Bay of Bengal Kobo Corp .. No. 12 CV 920 (KAM)(VMS}, 2013 WL 867429, at *3 (E.D.N.Y. Feb.
6, 2013), report and recommendation adopted as modified, 2013 WL 867420 (E.D.N.Y. Mar. 7, 2013). However,
plaintiff's complaint, other than stating that the Property is a public accommodation, provides no allegations
demonstrating that the Property falls within the ADA definition. (Comp!., at~ I 1 ("the Subject Facility is a place of
public accommodation in that it is an establishment which provides goods and services to the public.")). In fact,
plaintiff fails to even allege what business is located at the Property. (Id.) Without such an allegation, it is difficult
for this Court to find that the Property qualifies as a public accommodation that is subject to the ADA. See~ Shariff,
2013 WL 6835 I 57, at *4, n.2 (noting that, on a motion for default judgment, simply alleging that the business is a
'public accommodation' may not be sufficient).

3

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the following factors to be relevant: (1) the proximity of the place of public accommodation to
plaintiffs residence, (2) plaintiffs past patronage of defendant's business, (3) the defintiveness of
plaintiff's plans to return, and (4) the plaintiffs frequency of travel near defendant." Id. (internal
quotations and citations omitted); see also Disabled in Action of Metro N.Y. v. Trump Int'l Hotel
& Tower, No. 01 CV 5518 (MBM), 2003 WL 1751785, at *7 (S.D.N.Y. Apr. 2, 2003) ("Courts

considering ADA claims have found that disabled plaintiffs who had encountered barriers at ...
stores ... 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.") (citations
omitted).
Here, the complaint states that plaintiff "continues to desire to visit the Subject Property 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[.]" (Compl.,

at~

14.) This allegation, even on a motion

for default, is insufficient. Plaintiff must allege, "either in his complaint or in a sworn affidavit[,]
that he intends to return to defendant's [Property]." Shariff v. Radamar Meat Corp .• No. 11 CV
6369 (NGG)(RML), ECF No. 15 at p. 4, (E.D.N.Y. Aug. 12, 2013) (denying plaintiff's motion for
a default judgment, with leave to supplement, where the complaint failed to sufficiently allege that
plaintiff intended to return to defendant's establishment). Here, plaintiff has failed to provide the
court any "details concerning his proximity to defendant's [Property], and has not stated how often
he has attempted to visit the [Property] or travels in the vicinity of the [Property]." Id. (collecting
cases where standing was established after plaintiff properly alleged an intent to return to the store
through a showing of residential proximity, travel plans, and a clear intention to return). Plaintifrs
complaint lacks the basic information necessary for the Court to find that plaintiff has standing to

4

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maintain this ADA lawsuit seeking declaratory and injunctive relief. 4
Accordingly, as the Court finds that plaintiffs complaint fails to demonstrate that plaintiff
has standing, the Court recommends that plaintiffs motion for a default judgment as to plaintiffs
ADA claim should be denied. 5

II.

State and City Law Claims

A federal court may decline to exercise supplemental jurisdiction if it has dismissed all
claims over which it had original jurisdiction. 28 U.S.C. § 1367(c)(3); Valencia ex rel. Franco v.
Lee. 316 F.3d 299, 305 (2d Cir. 2003); see also Lerner v. Fleet Bank. N.A .. 318 F.3d 113, 130 (2d
Cir. 2003) ("In most circumstances, a district court should decline supplemental jurisdiction if all
federal claims have been dismissed at the pleading stage."). As the Court recommends that
plaintiffs ADA claim should be dismissed, I respectfully recommend that the Court should decline
to exercise supplemental jurisdiction over plaintiffs state and city law claims. See Shariff, No. 11
CV 6369 (NGG)(RML), ECF No. 15 at p. 4 (declining to exercise supplemental jurisdiction after
dismissing plaintiffs ADA claim on a motion for a default judgment).

4

Plaintiff provides no information regarding his intention to return to the Property in either his Motion for Default
Judgment, ECF No. 8, or in his Memorandum of Law, ECF No. 11.
s The Court notes that counsel has filed a similar complaint for the same plaintiff in another action in this District,
Gamet v. Group 5 Realty LLC, No. 16 CV 4060 (LDW). Notwithstanding the fact that the other lawsuit resolved
through settlement, the Court is concerned regarding the similarity and deficiencies of these complaints. See ~
Cankat v. 41st Avenue Restaurant Com., No. 15 CV 4693 (SJ)(MDG), 2016 WL 7217638, at *5 (E.D.N.Y. Dec. 12,
2016) (internal quotations omitted) (where the Court expressed concern that attorneys are "mock[ing] the [ADA's]
mission by engaging in serial ADA litigation to take advantage of the statute's attorney's fees provision."); Taylor v.
312 Grand Street. LLC, No. 15 CV 5410 (BMC), 2016 WL 1122027, at *5 (E.D.N.Y. Mar. 22, 2016) (articulating
concerns regarding the "disturbing image conjured up by these attorney-generated lawsuits"). The Court appreciates
that the "ADA is a trailblazing civil rights law that changed individual lives and national stereotypes about people
with disabilities" but cautions counsel to take care with each and every complaint he files. Canka!, 2016 WL7217638,
at *5.

5

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CONCLUSION
Accordingly, it is respectfully recommended that plaintiffs motion for a default judgment
should be denied without prejudice. If this Report & Recommendation is adopted, plaintiff should
be provided the opportunity to amend his complaint. Plaintiff shall serve a copy of this Report &
Recommendation upon defendant at its last known address and file proof of service with the Court
forthwith.

FILING OF OBJECTIONS TO REPORT AND RECOMMENDATION
Pursuant to 28 U.S.C. § 636(b)(l) and Rule 72(b)(2) of the Federal Rules of Civil
Procedure, the parties shall have fourteen ( 14) days from service of this Report to file written
objections. See also Fed. R. Civ. P. 6. Such objections (and any responses to objections) shall be
filed with the Clerk of the Court. Any request for an extension of time to file objections must be
made within the fourteen-day period. Failure to file a timely objection to this Report generally
waives any further judicial review. Marcella v. Capital Dist. Physicians' Health Plan. Inc., 293
F.3d 42, 46 (2d Cir. 2002); Small v. Sec'y of Health and Human Servs., 892 F.2d 15, 16 (2d Cir.
1989); see Thomas v. Am, 474 U.S. 140 (1985).
SO ORDERED.

/SI
LOIS BLOOM
United States Magistrate Judge
Dated: January 17, 2017
Brooklyn, New York

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