Cankat v. Fu Hua Inc.

Filing 26

ORDER granting 20 Motion for Judgment on the Pleadings. Ordered by Judge I. Leo Glasser on 8/29/2017. (Weitzer, Iliza)

UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
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JERRY CANKAT,
MEMORANDUM AND ORDER
16-CV-6107

Plaintiff,
- against FU HUA INC.,
Defendant.
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GLASSER, Senior United States District Judge:

Plaintiff Jerry Cankat (“Cankat” or “Plaintiff”) is a disabled individual who alleges
violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq., against
defendant Fu Hua Inc. (“Fu Hua” or “Defendant”). Before the Court is Defendant’s motion for
judgment on the pleadings which is GRANTED for the reasons stated herein.
BACKGROUND
Defendant Fu Hua owns a building located at 135-20 Roosevelt Blvd, Queens, New York
(the “Property”). ECF 1, Complaint (“Complt.”) at ¶ 2. At all times relevant to this action, Fu
Hua has leased the Property to Vanilla Café Pastry Garden, Corp. (“Vanilla Café”) which
operates a bakery there (the “Café”). Id. Plaintiff Cankat is a fifty-nine year old man who is
wheelchair bound due to a diabetes-related leg amputation in 2010. Id. at ¶ 3.
On November 25, 2014, Cankat commenced an ADA action in the Eastern District of
New York against Vanilla Café (the “Vanilla Café Action”) alleging that when he visited the
Café on an unspecified date, he “encountered architectural barriers . . . precluding him from
reasonably accessing the goods and services provided to non-disabled individuals.” See No. 14CV-6917 (RJD)(CLP), ECF 5 at ¶ 8. Specifically, Cankat alleged that the Café had a noncompliant wheelchair ramp and restroom. Id. at ¶ 12. On August 24, 2016, Judge Dearie
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dismissed that case with prejudice due to Plaintiff’s failure to prosecute. Cankat v. Vanilla Café
Pastry Garden, Corp., 2016 WL 4490633, at *1 (E.D.N.Y. Aug. 24, 2016) (noting Plaintiff’s
“alarming failure to prosecute the case, instituted nearly two years ago, and a continuing
disregard for the Court's directives”).
Approximately two months later, Plaintiff initiated this case against Fu Hua, seeking
injunctive relief, a declaration that Defendant violated the ADA, and attorney’s fees. See
generally Complt. The Complaint alleges that Fu Hua permitted its tenant to operate a
commercial establishment on the Property that violated the ADA. Id. at ¶ 2. On an unspecified
date, Cankat allegedly visited the Property and was unable to “reasonably access the goods and
services provided to non-disabled individuals” due to architectural barriers, namely an allegedly
non-compliant wheelchair ramp and inaccessible restroom. Id. at ¶¶ 8-9, 12. It is undisputed
that the Complaint in this action is identical to the complaint in the Vanilla Café Action, save for
the named defendant.
LEGAL STANDARD
Under Fed. R. Civ. P. 12(c), “[a]fter the pleadings are closed—but early enough not to
delay a trial—a party may move for judgment on the pleadings.” In deciding a Rule 12(c)
motion, the Court applies the same standard applicable to dismissals pursuant to Fed. R. Civ. P.
12(b)(6). Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010). Thus, Plaintiff must plead
“sufficient factual matter, accepted as true” to state a claim that is plausible on its face, from
which the Court can draw the reasonable inference that the Defendant is liable for the
misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). The Court may also take
judicial notice of proceedings that may have a preclusive effect and may dismiss Plaintiff’s claim

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on res judicata grounds. Caldwell v. Gutman, Mintz, Baker & Sonnenfeldt, P.C., 701 F.Supp.2d
340, 349 (E.D.N.Y. 2010) (citing cases).
DISCUSSION
Defendant argues that in light of the Vanilla Café Action, the doctrine of res judicata
requires that this case be dismissed. Res judicata, or claim preclusion, holds that “a final
judgment on the merits of an action precludes the parties or their privies from relitigating issues
that were or could have been raised in that action.” Monahan v. N.Y.C. Dep't of Corr., 214 F.3d
275, 284–85 (2d Cir. 2000) (internal citations omitted). The purpose of the res judicata doctrine
is to require a party “to bring in one litigation all its claims arising from a particular transaction.”
King v. Galluzzo Equip. & Excavating, Inc., No. 00-CV-6247 (ILG), 2001 WL 1402996, at *7
(E.D.N.Y. Nov. 8, 2001). The burden is on the party asserting res judicata to prove that it bars
the claims in a given action. Computer Assocs. Int'l, Inc. v. Altai, Inc., 126 F.3d 365, 369 (2d
Cir. 1997). To do so here, Fu Hua must demonstrate that (1) the Vanilla Café Action concluded
with a final adjudication on the merits, (2) the Vanilla Café Action involved the same parties or
their privies, and (3) the claims asserted in this action were, or could have been, asserted in the
Vanilla Café Action. Monahan, 214 F.3d at 285.
The Vanilla Café Action was dismissed with prejudice for Plaintiff’s failure to prosecute,
which operates as an adjudication on the merits in satisfaction of the first factor. Fed. R. Civ. P.
§ 41(b). Next, the determination of privity involves a “functional inquiry in which the
formalities of legal relationships provide clues but not solutions.” Chase Manhattan Bank, N.A.
v. Celotex Corp., 56 F.3d 343, 346 (2d Cir. 1995); see also Amalgamated Sugar Co. v. NL
Indus., Inc., 825 F.2d 634, 640 (2d Cir. 1987) (the privity determination is to be “applied with
flexibility”). Contrary to Plaintiff’s claim that landlords and their tenants are always adverse

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parties (ECF 24, Opposition, at p. 4), privity is a “factual issue” that “may exist for the purpose
of determining one legal question but not another depending on the circumstances and legal
doctrines at issue.” Celotex Corp., 56 F.3d at 346. Here, Vanilla Café is Fu Hua’s tenant,
operating the commercial establishment at the root of Plaintiff’s claims in both actions. Both are
clearly incentivized to vigorously defend against those claims. Additionally, pursuant to the
lease between the two entities, “Vanilla Café is responsible for the cost of defending lawsuits
concerning the Property.” ECF 25, Dec. of Jinny Chang, at ¶¶ 4-6. As a result, Vanilla Café has
hired defense counsel, is paying the legal fees and is making all legal decisions related to Fu
Hua’s defense in this action. Id. These facts prove that on the claims at issue in this case, there
is sufficient privity between Fu Hua and Vanilla Café for purposes of res judicata.
The final factor asks whether the claims asserted in this action were, or could have been,
asserted in the Vanilla Café Action. “Whether or not the first judgment will have preclusive
effect depends in part on whether the same transaction or connected series of transactions is at
issue, whether the same evidence is needed to support both claims, and whether the facts
essential to the second were present in the first.” N.L.R.B. v. United Techs. Corp., 706 F.2d
1254, 1260 (2d Cir. 1983); see also Waldman v. Vill. of Kiryas Joel, 207 F.3d 105, 108 (2d Cir.
2000) (“[W]e look to whether the underlying facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit, and whether their treatment as a unit
conforms to the parties' expectations.” (internal citations omitted)). This action alleges the
identical claims that were dismissed with prejudice in the Vanilla Café Action—that Plaintiff
was prevented from reasonably accessing the Café in violation of the ADA. Plaintiff had a full
and fair opportunity to prosecute that claim in the Vanilla Café Action, but failed to do so. He
cannot now revive his previously-dismissed claims by asserting them anew against Fu Hua.

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Cameron v. Church, 253 F. Supp. 2d 611, 623 (S.D.N.Y. 2003); see also Official Publications,
Inc. v. Kable News Co., 811 F. Supp. 143, 147 (S.D.N.Y. 1993) (citing cases) (Res judicata
“bars litigation of the same causes of action against defendants who were known to plaintiff at
the time the first action was filed but were not named where the newly-added defendants have a
sufficiently close relationship to the original defendant”).
Cankat claims that at some unspecified time after dismissal of the Vanilla Café Action,
he revisited the Café, was confronted with the same architectural barriers, and commenced this
suit against Fu Hua. ECF 24-2, Cankat Dec., at ¶¶ 5-6. Because this action is based on that
second visit, he contends that his claims are different from those asserted in the Vanilla Café
Action. To the contrary. A subsequent visit does not create a separate claim to overcome the res
judicata effect of the Vanilla Café Action, particularly since Plaintiff alleges the same ADA
violations, at the same Café, located on the same Property, in both actions. To hold otherwise
would undermine the purpose of res judicata and lead to absurd results, whereby a plaintiff could
repeatedly revisit the same commercial establishment after a court’s final adjudication
unfavorable to him, and assert identical claims again and again.
CONCLUSION
For the reasons stated herein, Defendant’s motion for judgment on the pleadings is
granted and Plaintiff’s case is dismissed with prejudice.
SO ORDERED.
Dated:

Brooklyn, New York
August 29, 2017
/s/
I. Leo Glasser

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