Adams v.724 Franklin Avenue Corp. et al
MEMORANDUM DECISION AND ORDER dated 12/29/16 that plaintiff's 19 Motion for Default Judgment is granted. Plaintiff may move for attorneys fees as provided in the ADA within the time allowed under Federal Rule of Civil Procedure 54, or may await further proceedings relating to compliance with the injunction. ( Ordered by Judge Brian M. Cogan on 12/29/2016 ) *Forwarded for jgm. (Guzzi, Roseann)
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
: MEMORANDUM DECISION AND
- against : ORDER
724 FRANKLIN AVENUE CORP. and
: 16-cv-5138 (BMC)
FRANKLIN BEER AND GROCERY, INC.,
COGAN, District Judge.
Plaintiff, who has cerebral palsy and is wheel chair-bound, brings this action under the
Americans with Disabilities Act, 42 U.S.C. § 12181 et seq. (hereinafter “ADA”), asserting that
due to various architectural barriers, he has been unable to access or has had limited access to
defendants’ grocery store and delicatessen. The case is before me on plaintiff’s motion for a
default judgment. The complaint lists a series of architectural barriers: steps at the front door
that a wheelchair cannot ascend; too narrow entrance doors; more steps into the interior dining
area; a high curb into the exterior dining area with too narrow a passageway to maneuver in a
wheelchair; lack of enough tables in the exterior dining area at which one could fit a wheelchair;
and several deficiencies making the restroom inaccessible. The complaint further alleges that
plaintiff has in fact attempted to use this public facility but has been thwarted, and that he would
attempt to use it again but for these architectural barriers.
Defendants have defaulted and the Clerk has entered their default pursuant to Federal
Rule of Civil Procedure 55(a). This means that the factual allegations in the complaint relating
to liability are deemed true. See Greyhound Exhibitgroup, Inc., v. E.L.U.L. Realty Corp., 973
F.2d 155, 158 (2d Cir. 1992); Montcalm Publ’g Corp. v. Ryan, 807 F. Supp. 975, 977 (S.D.N.Y.
1992). The complaint still has to state a valid claim for relief for plaintiff to proceed to default
judgment, Labarbera v. ASTC Labs., Inc., 752 F. Supp. 2d 263, 270 (E.D.N.Y. 2010), but with
defendants having voluntarily chosen to default, any doubt as to the validity of the complaint will
be resolved in favor of plaintiff as I am not going to act as defendants’ lawyer when they chose
not to retain one. See Greathouse v. JHS Sec. Inc., 784 F.3d 105, 120 (2d Cir. 2015) (Korman,
D.J., concurring in part and dissenting in part) (observing that a court should not act as a
defaulting party’s lawyer and that “[t]he magistrate in the case essentially took it upon himself to
act as counsel for parties who had not bothered themselves to appear in court.”); Allstate Ins. Co.
v. Tapper, 2015 14-CV-5410, 2015 WL 6869702, at *2-3 (E.D.N.Y. Nov. 9, 2015) (“[I]t is
inappropriate and, indeed, unseemly for a court to act as the lawyer for a defendant that has
chosen to default.).
In this regard, the events leading to default here are somewhat unusual and warrant
comment. Plaintiff’s motion for a default judgment annexes a string of emails between
plaintiff’s counsel and an attorney named Kevin O’Donoghue who, according to his statements
in the string of emails, was retained by defendants for the limited purpose of making a de
minimis settlement offer to plaintiff, and for no other purpose. Mr. O’Donoghue based his
negotiations, in part, on his claim that the undersigned (this Court) “does not like these cases”
and informed plaintiff’s counsel that if they did not accept his settlement offer, “I am fine to let
the case get defaulted and see what you can get from the judge.” Another email in the string
from Mr. O’Donoghue cites a newspaper article reporting on my decision in another ADA case
in which I questioned whether the plaintiff’s attorney there, who filed dozens of cases on behalf
of the same plaintiff, had any genuine interest in making the establishments she sued ADA-
compliant, as opposed to collecting attorneys’ fees. A third email from Mr. O’Donoghue
accuses plaintiff’s attorney of having been sanctioned, although it does not say for what.
It is true that not only the undersigned, but other judges in this district, and indeed judges
around the country, have questioned whether the ADA in some instances has become a vehicle
of abuse by certain plaintiff’s attorneys who have created a cottage industry by bringing multiple
cases against small businesses on behalf of the same plaintiff when that plaintiff has no genuine
intention of using the services of so many businesses. See Cankat v. 41st Avenue Rest. Corp.,
No. 15-cv-4963, 2016 WL 7217638 (E.D.N.Y. Dec. 12, 2016) (Johnson, J.); Deutsch v. Henry,
A-15-CV-490-LY-ML, et al., 2016 WL 7165993 (W.D. Tex. Dec. 7, 2016); Taylor v. 312 Grand
St., No.15-cv-5410, 2016 WL 1122027 (E.D.N.Y. March 22, 2016) (Cogan, J.); Shariff v. Beach
90th St. Realty Corp., No. 11 Civ. 2551, 2013 WL 6835157 (E.D.N.Y. Dec. 20, 2013) (Bloom,
M.J.); Nat’l Alliance for Accessibility, Inc. v. Big Lots Stores, Inc., No. 11-cv-941, 2012 WL
1440226 (M.D.N.C. April 26, 2012); White v. Sutherland, No. CIV S-03-2080, 2005 WL
1366487 (E.D. Cal. May 6, 2005); Rodriguez v. Investco, L.L.C., 305 F. Supp. 2d 1278 (M.D.
Fla. 2004); Steven Brother v. Tiger Partner, LLC, 331 F. Supp. 2d 1368 (M.D. Fla. 2004);
Molski v. Mandarin Touch Rest., 347 F. Supp. 2d 860 (C.D. Cal. 2004); see also Caitlin Nolan
and John Marzulli, Disabled Queens man sues at least 20 mom-and-pop businesses over
'architectural barriers' preventing wheelchair access, New York Daily News (April 28, 2015),
http://www.nydailynews.com/new-york/queens/disabled-queens-man-sues-20businessesbarriers-article-1.2201545; Alison Stateman, Lawsuits by the Disabled: Abuse of the
System?, Time Magazine (Dec. 29, 2008),
I do not know if this plaintiff or his attorneys have a history of filing abusive ADA cases,
and defendants, because they have defaulted, have elected not to tell me. But the fact that some
plaintiffs and lawyers have abused the ADA gives defendants no license to ignore the process of
this Court or to avoid their obligations under the ADA. Congress has mandated access for the
disabled on a sliding scale depending on when a building was constructed or improved, see
Taylor, 2016 WL 1122027, at *3, and defendants have to comply with the law, explain that they
are already compliant, or defend the case on the ground that the plaintiff lacks standing. The
burden on small businesses that compliance entails is ameliorated to some degree by the
requirement that plaintiff demonstrate that the correction can be made at a reasonable cost, see
42 U.S.C. §§ 12181(9), 12812(b)(2)(A); 28 C.F.R. § 36.104, but if that is not sufficient, it is not
for this Court to second-guess Congress. And if a defendant chooses to default, it abandons any
defense that the compliance that plaintiff seeks is economically unreasonable.
Moreover, if, in a particular case, a plaintiff has no genuine desire to use the premises, a
defendant is generally able to demonstrate that the plaintiff lacks standing under the ADA. A
defendant, however, abandons this argument when it chooses to default. Judge Johnson’s
decision in Cankat, 2016 WL 721638, is a good illustration of that. In Cankat, there seemed to
be good reason to question whether the plaintiff, a well-known serial ADA litigant, had any
intention of using the facilities of the subject premises based on plaintiff’s testimony at the
inquest of damages. But because the defendant chose not to appear, there was no basis to avoid
granting partial relief.
If a defendant is faced with a bad faith, serial litigant, the courts are well able to dismiss
the case, award attorneys’ fees, and even enjoin the plaintiff from filing further actions. See,
e.g., Molski v. Evergreen Dynasty Corp., 500 F.3d 1047 (9th Cir. 2007). Defendants here,
however, have forfeited the right to such remedies by choosing not to appear.
Plaintiff’s complaint, the factual allegations of which are deemed true, meets all the
necessary elements of a claim under the ADA. See 42 U.S.C. § 12182; Roberts v. Royal Atlantic
Corp., 542 F.3d 363, 368 (2d Cir. 2008). In terms of relief, defendants were served with a copy
of the motion for a default judgment (as was Mr. O’Donoghue, as a courtesy), but they have
failed to respond. Plaintiff has requested an injunction requiring defendants to correct each of
the non-compliant aspects of their premises. Plaintiff has cited to the particular ADA regulation
requiring compliance, and is entitled to that relief.
However, given defendants’ default, I think it is necessary to be practical. The more
common way of ensuring ADA compliance is to require defendants to submit a construction plan
within a reasonable period of time that will correct the non-compliant features of their premises.
Having deliberately defaulted thus far, we should anticipate that defendants will continue to
ignore any injunction that the Court enters; thus, if there is going to be a failure to comply with
an injunction, it might as well be a single failure to comply with that term. Accordingly, the
Court will enter a Final Judgment and Injunction requiring defendants to submit to plaintiff a
plan for the correction of each of the non-compliant architectural barriers addressed in the
complaint and the motion within 60 days.
Plaintiff’s motion for a default judgment is therefore granted. Plaintiff may move for
attorneys’ fees as provided in the ADA within the time allowed under Federal Rule of Civil
Procedure 54, or may await further proceedings relating to compliance with the injunction.
Digitally signed by
Brian M. Cogan
Dated: Brooklyn, New York
December 29, 2016
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