Diaz v. Lobel's of New York, LLC

Filing 56

MEMORANDUM & ORDER, Defendant' motion to dismiss and/or for summary judgment and Plaintiff's motion for summary judgment are DENIED. So Ordered by Judge Nicholas G. Garaufis on 7/29/2019. (Lee, Tiffeny)

o/F
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK
X

CHRISTHIAN DIAZ,on behalf of himself and all
others similarly situated,
Plaintiff,
MEMORANDUM & ORDER

-against16-CV-6349(NGG)
(SMG)
LOBEL'S OF NEW YORK,LLC,

Defendant.
X

NICHOLAS G. GARAUFIS,United States District Judge.

Plaintiff Christhian Diaz brings this putative class action against Defendant Lobel's of

New York, LLC("Lobel's") alleging that its website is inaccessible to bliud customers in
violation of Title III ofthe Americans with Disabilities Act("ADA"),42 U.S.C. § 12101 et seq.

Currently pending before this court are the Defendant's motion to dismiss or in the alternative
for summaryjudgment and Plaintiffs motion for summaryjudgment. (See Def. Mot.to Dismiss
or for Summ. J.("Def. Mot.")(Dkt. 37); PI. Mot. for Summ. J.("PI. Mot.")(Dkt. 47).) For the

following reasons, the court DENIES both parties' motions.
I.

BACKGROUND

A.

Factual Background

The following statement offacts is largely taken from the parties' Local Rule 56.1

statements and declarations, with the evidence "constm[ed]... in the light most favorable to the
non-moving party." Wandering Dago. Inc. v. Destito. 879 F.Sd 20,30(2d Cir. 2018)(internal
citation and quotation marks omitted). (See Def. Statement of Material Facts("Def. 56.1")(Dkt.
39); PI. Resp. to Def. 56.1 ("PI. 56.1 Resp.")(Dkt. 41); PI. Statement of Material Facts ("PI.

56.1")(Dkt. 48); Def. Resp. to PI. 56.1 ("Def. 56.1 Resp.")(Dkt. 51).) The parties agree on the
following facts, except where otherwise noted.
Plaintiff Christhian Diaz is blind and uses screen-reading software, named JAWS and

NVDA,to access the internet and read website content. (Pi. 56.1 ^ 2.) Defendant owns and
operates the website www.lobels.com (the "Website"). (Def. 56.1 ^1.) Defendant uses the
website to market and sell more than 400 different products, including fresh meats, other food
products, merchandise, and gift packages. (Id.

2-3.) Defendant also uses its website to post

recipes and information about its business. (Id H 4.) The Website consists of nearly 1,000
separate pages. (Id.

5-6.)

Beginning in December 2016, Plaintiff attempted to make a purchase on the Website at
least five times. (PI. 56.1 f 3.) Plaintiff could not purchase products on the Website using

JAWS or NVDA because the website was not accessible via keyboard access. (Id.f 4.)

Website Updates^
Defendant states that as ofthe date of its motion—December 22, 2017—^it had "recently
completed" an update ofthe Website to make it conform with guidelines regarding accessibility

for visually impaired persons. (Def. 56.1 If 8.) Defendant began updating its website in the
spring of2017 using a "comprehensive plan" to improve accessibility. (Def. 56.1 f^f 9-10.)
Defendant's updates were guided by the Web Content Accessibility Guidelines("WCAG")2.0

' response to each ofthe statements in this section concerning the steps Defendant imdertook to render the
In
Website compliant, Plaintiffreasserts that the Website was not fiilly accessible in September 2017, November 2017,
or January 2018. The fact that the update was not completed by those dates does not, however, controvert the
specifics ofDefendant's plan and efforts to update the Website in conformance with the WCAG 2.0 Level AA
standard. The facts in this section are therefore deemed admitted for purposes ofthe Defendant's motion.
Local
Civ. R. 56.1(c)("Each numbered paragraph in the statement of material facts set forth in the statement required to be
served by the moving party will be deemed to be admitted for purposes ofthe motion unless specifically
controverted by a correspondingly numbered paragraph in the statement required to be served by the opposing
party.").

Level AA standard.^ (Id. ^ 10.) Both parties agree that the WCAG 2.0 Level A and AA
standards are the appropriate guidelines to satisfy the ADA's accessibility requirement. (PL 56.1

Tf 9; Def. 56.1 Resp.^ 9.) Defendant's plan included purchasing a subscription to a website
auditing service and then making changes to the code contained in the website based upon the
service's findings to make it conform to the WCAG 2.0 Level AA guidelines. (Id

11-12.) As

part ofthe update, Defendant re-coded the Website by, among other things, including labels in

specific code so that images and functions on the website could be described auditorily; stripping
out code that interfered with screen readers; adding page heading tags to enable a person using a

screen reader to navigate consistently from page-to-page. (Id 113.) This work was performed

by employees of Defendant as well as its contracted web developers. (Id Tf 14.) Defendant used
a diagnostic tool obtained through a vendor, Siteimprove, Inc., which scanned the Website for
accessibility issues. (Id If 15.)
Website Status

Defendant contends that as ofthe date ofthe 56.1 statement, the Website was in

conformance with WCAG 2.0 Level AA standard. (Id Tf 16.) In addition. Defendant promised

to remedy within five business days "a few minor exceptions" that were revealed by the

Siteimprove scan performed on December 22,2017. (Id t'17.) Plaintiff counters that the
Website was still "not accessible" to blind individuals as of January 17, 2018. (PI. 56.1 Resp.|Tf

17.) Defendant added an ADA policy with a feedback form to their website, but Plaintiff stated

^"WCAG 2.0" refers to version 2.0 ofthe Web Content Accessibility Guidelines, which were developed by the
Accessibility Guidelines Working Group ofthe World Wide Web Consortium, the main international standards
organization for the World Wide Web." Wu v. Jensen-Lewis Co.. 345 F. Supp. 3d 438,441 (S.D.N.Y. 2018)(citing
Web Content Accessibility Guidelines(WCAG)2.0, W3C(Oct.22, 2018,5:46 PM),

https://www.w3.org/TR/WCAG20/). "WCAG 2.0 prescribes 'a wide range ofrecommendations for making Web
content more accessible' to 'people with disabilities, including blindness and low vision.'" Id.(citing Web Content
Accessibility Guidelines(WCAG)2.0).

that he could not read that policy using screen-reading software. (Def. 56.1

18-19; PI. 56.1

Resp. 1ft 18-19.)
Plaintiff also states that as ofNovember 13,2017,the Website is inaccessible via
keyboard and contains fourteen WCAG 2.0 Level A failures and five Level AA failures, which

prevent blind individuals from making a purchase on the Website. (PI. 56.1111;

id. tt 12-

16.) Defendant disagrees and contends that the declaration submitted by Plaintiffin support of
these assertions is unreliable, and that the website was accessible by keyboard as of December
22,2017. (Def. 56.1 Resp. tlf 11-12.)
Defendant's Intentions^

Defendant entered into a subscription agreement with Siteimprove,Inc. and Defendant's
employees will run scans ofthe Website at least monthly using the WCAG 2.0 Level AA

standard to detect any accessibility issues. (Id Iflf 20-22.) Defendant will "promptly rectify" any
issues revealed by those scans. Qd. Iflf 23.) Defendant also commits to checking that any new

content added to the Website is also in conformance. ("Id. If 25.1
B.

Procedural History

Plaintiff filed this action on November 15,2016, alleging violations of Title III ofthe
ADA,42 U.S.C. § 12101 et seq.. New York State Human Rights Law,N.Y. Exec. L. § 292^
seq.. New York State Civil rights Law,N.Y. Civ. R § 40 et seq.. and New York City Human

Rights Law,N.Y.C. Admin. Code § 8-102 et seq. (Compl. Iflf 53-108.) As relief under the

' response to each ofthe statements in this section concerning future commitments, Plaintiffreasserts that the
In
Website was not fiilly accessible in September 2017,November 2017, or January 2018. The fact that certain
accessibility issues still existed in January 2018 does not controvert Defendant's intention to regularly review and
address any accessibility problems. The facts in this section are therefore deemed admitted for purposes ofthe
Defendant's motion. See Local Civ. R. 56.1(c)("Each numbered paragraph in the statement of material facts set
forth in the statement required to be served by the moving party will be deemed to be admitted for purposes ofthe
motion unless specifically controverted by a correspondingly numbered paragraph in the statement required to be
served by the opposing party.").

ADA,the complaint sought injunctive relief and attorneys' fees. (Id.

[].) In separate claims

under state and local laws,the complaint also sought compensatory damages. (Id Tft [].)
The parties' respective motions to dismiss and for summary judgment were fully briefed
on March 5,2018. Defendant argues that Plaintiffs claim under the ADA is moot, because
Defendant has voluntarily remedied the accessibility barriers ofthe Website so that it is now

accessible to blind users according to the standards commonly used to assess such accessibility.

(See Def. Mem.in Supp. of Mot. to Dismiss or for Summary J.("Def. Mem.")at 6-10.) In
contrast. Plaintiff asks the court to grant summary judgment in his favor because, he argues, the
Website is not accessible to blind users,in violation ofthe ADA. (See PI. Mem.(Dkt. 49).)
II.

STANDARDS OF REVIEW

Before the Court are Defendant's motion to dismiss pursuant to Federal Rule of Civil
Procedure 12(b)(1) or in the alternative for summaryjudgment pursuant to Rule 56, and

Plaintiffs motion for summary judgment pursuant to Rule 56. The following standards ofreview
are applicable to the respective motions.
A.

Subject Matter Jurisdiction

A claim is "properly dismissed for lack of subject matter jurisdiction under Rule 12(b)(1)

when the district court lacks the statutory or constitutional power to adjudicate it." Makarova v.
United States. 201 F.3d 110,113(2d Cir. 2000). Because "Article III, § 2, ofthe Constitution
limits the jurisdiction offederal courts to 'Cases' and 'Controversies,'""an actual controversy
must be extant at all stages ofreview." Genesis Healthcare Com,v. Svmczvk. 569 U.S. 66,71

(2013)(citation omitted). "If an intervening circumstance deprives the plaintiff of a personal
stake in the outcome ofthe lawsuit, at any point during litigation, the action can no longer

proceed and must be dismissed as moot." Id. at 72(citation and quotation omitted).

- 5

"A plaintiff asserting subject matter jurisdiction has the burden of proving by a
preponderance ofthe evidence thatjurisdiction exists." Giammatteo v. Newton.452 F. App'x

24, 27(2d Cir. 2011)(citing Makarova. 201 F.3d at 113). In resolving a motion to dismiss for
lack ofsubject matterjurisdiction,"the court must take all facts alleged in the complaint as true
and draw all reasonable inferences in favor of plaintiff," Natural Res. Def. Council v. Johnson,

461 F.3d 164,171 (2d Cir. 2006)(citation and quotation omitted), but "jurisdiction must be
shown affirmatively, and that showing is not made by drawing from the pleadings inferences

favorable to the party asserting it," Shipping Fin. Servs. Corp. v. Drakos. 140 F.3d 129,131 (2d
Cir. 19981: see also Amidax Trading Group v. S.W.I.F.T. SCRL.671 F.3d 140,145(2d Cir.
2011); APWU V. Potter. 343 F.3d 619,623(2d Cir. 2003). On such a motion, a court may

consider evidence outside the pleadings, such as affidavits and exhibits.

Makarova.201 F.3d

at 113. In so doing, the court is guided by the body of decisional law that has developed under
Rule 56 ofthe Federal Rules of Civil Procedure.

Kamen v. American Tel. & Tel. Co.. 791

F.2d 1006, 1011 (2d Cir. 1986)("While a 12(b)(1) motion cannot be converted into a Rule 56

motion. Rule 56 is relevant to the jurisdictional challenge in that the body of decisions under
Rule 56 offers guidelines in considering evidence submitted outside the pleadings.")

B.

Summary Judgment

Summaryjudgment must be granted when "there is no genuine dispute as to any material
fact and the movant is entitled to judgment as a matter oflaw." Fed. R. Civ. P. 56(a). "A
'material' fact is one capable ofinfluencing the case's outcome under governing substantive law,

and a 'genuine' dispute is one as to which the evidence would permit a reasonable juror to find
for the party opposing the motion." Figueroa v. Mazza. 825 F.3d 89,98(2d Cir. 2016)(citing
Anderson v. Liberty Lobbv. Inc.. 477 U.S. 242,248 (1986)).

The moving party bears the initial burden to show an absence of genuine factual dispute.
See Adickes v. S.H. Kress & Co.. 398 U.S. 144,157(1970). Summary judgment will be granted
ifthe opposing party then "fails to make a showing sufficient to establish the existence of an

element essential to that party's case, and on which that party will bear the burden ofproof at
trial." Celotex Corp. v. Catrett. 477 U.S. 317,322(1986). To defeat summaryjudgment,the
opposing party must do more than demonstrate "some metaphysical doubt as to the material
facts," Matsushita Elec. Indus. Co.. Ltd. v. Zanith Radio Corp., 475 U.S. 574, 586(1986), and
may not rely on "conclusory allegations," Twin Labs.. Inc.. v. Weider Health 8c Fitness. 900

F.2d 566,568(2d Cir. 1990). See Joseph v. N. Shore Univ. Hosp.. 473 Fed. App'x 34,36(2d
Cir. 2012)
(summary order)("Conclusory allegations, conjecture, and speculation,... are
insufficient to create a genuine issue offact."(quotiug Sharmon v. N. Y. City Transit Auth., 332

F.3d 95,99(2d Cir. 2003)). Instead,"the nonmoving party must come forward with specific
facts showing that there is a genuine issue for trial." Caldarola v. Calabrese. 298 F.3d 156,160

(2d Cir. 2002)(emphasis in original)(quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp..
475 U.S. 574, 586-87(1986)). "[T]he Court'must construe the facts in the light most favorable

to the non-moving party and must resolve all ambiguities and draw all reasonable inferences
against the movant.'" Fireman's Fimd Ins. Co. v. Great Am.Ins. Co. ofN.Y.. 822 F.3d 620,631

n.l2(2d Cir. 2016)(quoting Sever v. Ctv. ofNassau. 524 F.3d 160,163(2d Cir. 2008)).
in.

DISCUSSION
A.

Defendant's Motion

Defendant moves to dismiss Plaintiff's complaint pursuant to Federal Rule of Civil
Procedure 12(b)(1) or for summaryjudgment pursuant to Federal Rule of Civil Procedure 56(a).
Defendant argues that Plaintiff's claim under the ADA is moot, because Defendant has

volxmtarily remedied the accessibility barriers ofthe Website so that it is now accessible to blind

users according to the standards commonly used to assess such accessibility.'^ ("See Def. Mem.at
6-10.) Defendant also asks that the court decline to exercise supplemental jurisdiction over
Plaintiff's state-law claims. ("See id. at 12-13.)
1.

Applicable Law

Plaintiff brings his claim under Title III ofthe ADA,which provides that "[n]o individual
shall be discriminated against on the basis of disability in the full and equal enjoyment ofthe
goods, services, facilities, privileges, advantages, or accommodations of any place of public
accommodation..."42 U.S.C.A. § 12182. To state a claim imder Title III ofthe ADA,a

plaintiff must allege that(1)he is disabled within the meaning ofthe ADA;(2)defendants own,
lease, or operate a place ofpublic accommodation; and(3)defendants discriminated against him
by denying him a full and equal opportunity to enjoy the services defendants provide. Camarillo
V. Carrols Corp., 518 F.3d 153,156(2d Cir. 2008);^42 U.S.C. § 12182(a). Discrimination
under the ADA includes:

[A]failure to take such steps as may be necessary to ensure that no
individual with a disability is excluded, denied services, segregated
or otherwise treated differently than other individuals because of
the absence of auxiliary aids and services, unless the entity can
demonstrate that taking such steps would fundamentally alter the
nature ofthe good, service, facility, privilege, advantage, or
accommodation being offered or would result in an undue burden.

42 U.S.C. § 12182(b)(2)(A)(iii). Regulations promulgated under these provisions by the United
States Department of Justice provide that "public accommodation[s] shall furnish appropriate
auxiliary aids and services where necessary to ensure effective communication with individuals
with disabilities." 28 C.F.R. § 36.303(c).

"Defendant does not raise any additional arguments in support of its motion in the altemative for summary
judgment.
8

Title III ofthe ADA allows only for injunctive relief, not monetary damages. Brief v.
Albert Einstein College of Medicine.423 Fed. App'x 88,90(2d Cir. 2011)(citing Powell v.
NatT Bd. of Med. Examiners. 364 F.3d 79, 86(2d Cir. 2004)). Therefore, imder certain
circumstances, a claim under the ADA can become moot if a defendant remedies the access

barrier during the pendency ofthe litigation.

Bacon v. Walereen Co.. 91 F. Supp. 3d 446,

451 (E.D.N.Y. 2015)(collecting cases).
"In analyzing a mootness challenge,'factual changes made by a defendant after litigation
has commenced cannot render a case moot unless it is absolutely clear the defendant cannot

resume the allegedly offending conduct.'" Clear Channel Outdoor. Inc. v. City ofNew York.
594 F.3d 94,110(2d Cir. 2010)(quoting Friends ofthe Earth. Inc. v. Laidlaw Envtl. Servs.. Inc.,
528 U.S. 167,189(2000)). Accordingly, the party asserting mootness bears a "heavy burden" in
meetmg this standard. Friends ofthe Earth. 528 U.S. at 189.

The Second Circuit applies a two-part test to determine whether a defendant's voluntary
cessation has rendered a case moot. The defendant must demonstrate that:"(1)there is no

reasonable expectation that the alleged violation will recur and (2)iaterim relief or events have
completely and irrevocably eradicated the effects ofthe alleged violation.'" Id (quoting
Campbell v. Greisberger. 80 F.3d 703, 706(2d Cir. 1996)h see also Gropper v. Fine Arts

Housing. Inc.. 12 F. Supp. 3d 664,670(S.D.N.Y. 2014)(evaluating mootness challenge to ADA
claim).
2.

Discussion

Here, Defendant argues that Plaintiffs claim under the ADA is moot because that claim
challenged the accessibility ofthe Website to blind users and Defendant has since modified the

Website to rectify the access barriers of which Plaintiff complains, and that such changes "will

not recur. (Id at 10.) Defendant has proffered a declaration from its Director of Marketing

Communications eCommerce,Rebecca Andrysiak. (See Deck of Rebecca Adnrysiak
("Andrysiak Deck")(Dkt. 38).) In this declaration, dated December 22,2017, Andrysiak

explains that starting in spring 2017, Defendant undertook an upgrade process to improve
accessibility ofthe Website. (Id ^ 4.) Andrysiak oversaw this upgrade process, which included
purchasing a subscription to a web-auditing service and making changes to the code contained in
the website based on audits. (Id

4-5.) As ofDecember 22,2017,the date of her declaration,

Andrysiak stated that the Website was in conformance with the WCAG 2.0 Level AA standard,

except for "a few minor exceptions revealed on the Siteimprove scan we performed today which
will be remedied within five(5)business days." (Id If 6.) The declaration does not provide
further details with respect to those "minor exceptions." Andrysiak also states that Defendant

intends to run scans using the auditing tool at least monthly to detect any accessibility issues in
the future. (Id ^ 9.)
Plaintiff disputes that Defendant has remedied the alleged defects. In support ofthis
argument. Plaintiff submits a declaration in which be avers that, as of January 17,2018, be is still
imable to access certain features ofthe Website or complete a purchase on the Website. (Deck
of Cbristbian Diaz Dated January 17,2018("Jan. 2018 Diaz Deck")(Dkt. 42-1).) Specifically,
Plaintiff avers that be is unable to access the search button on the homepage via the keyboard
using JAWS or NVDA;the submenu options under the "Shop" menu option are not readable by
JAWS or NVDA;the price ofUSDA prime dry-aged boneless rib steak is not readable by JAWS

or NVDA;the "Proceed to Checkout" link from the shopping cart opens a window that be cannot
access using JAWS or NVDA;the blanks in the "Sbippiug Information" form are not read by

^ Defendant does not dispute that Title in applies to websites such as the one at issue here or that Plaintiffs legal
blindness meets the defibodtion ofa disability within the meaning ofthe ADA. ("See Def. Mem. at 1.)
10

JAWS or NVDA; and the ADA policy on the website is not read by JAWS or NVDA. (Id.

9-

15.) Defendant does not contest that Plaintiffis unable to access the search bar. Instead, in a
declaration submitted with its reply brief, Andrysiak asserts that"even ifthe search icon is not

accessible by keyboard, a visually impaired person using the website still has access to the

webpages contained in the website." (Reply Deck ofRebecca Andrysiak, dated January 26,
2018 ("Andrysiak Reply Deck")(Dkt. 44)^ 4.)

Plaintiff also submits a declaration by Michael McCaffirey,founder of ADASure,a

company that was retained by Plaintiff's counsel to perform a "compliance audit" on the
Website. (Deck of Michael McCaffrey("McCaffrey Deck").) Plaintiff also submits reports of
those "audits," conducted in September and November 2017 and January 2018 (the "ADASure
Audits"). CSee ADASure Audits(Dkts. 42-2-42-6).)

As Defendant rightly notes Csee Def. Mem.in Opp'n to PI. Mot. for Summary J.("Def.

Opp'n")at 5-6), and as explained further below. Plaintiff has not yet established the expertise of
ADASure or the reliability ofthe methods it used at the level required to support admissibility of
the ADASure Audits. See Del-Orden v. Bonobos. Inc.. No. 17-CV-2744(PAE),2017 WL

6547902, at *13 (S.D.N.Y. Dec. 20, 2017)(finding that THE plaintiff had not sufficiently

established the admissibility of a similar unswom "audit" by ADASure). The McCaffrey
declaration is thus oflimited use to the court. The declaration submitted by Defendant,in which

Andrysiak concedes that the Website contains certain "minor exceptions"(see Andrysiak Deck

7), and Plaintiffs own declaration, in which he avers that he cannot fully access or enjoy the
Website(see Jan. 2018 Diaz Deck), are nonetheless sufficient to rebut Defendant's contention
that the ADA claim has been mooted by Defendant's upgrades.

11

The court cannot conclude, based on the evidence before it, that Defendant has fully
rectified all access barriers in the Website or that it is "absolutely clear the [DJefendant cannot

resume the allegedly offending conduct.'" Clear Channel. 594 F.3d atl 10 (quoting Friends of
the Earth. 528 U.S. at 189). The court thus finds that Plaintiff's ADA claim is not moot, and
denies Defendant's motion to dismiss under Federal Rule of Civil Procedure 12(b)(1).

As noted above. Defendant sets forth no additional arguments with respect to its motion
in the altemative for summary judgment. Having found that Plaintiffs ADA claim is not moot,
the court also denies Defendant's motion for sximmaryjudgment because, as discussed in further
detail below,there is a triable issue as to whether the Website violates the ADA.
B.

Plaintiffs Motion for Summary Judgment

Plaintiff asks the court to grant summary judgment in his favor because, he argues, the
Website is allegedly not accessible to blind users, in violation ofthe ADA. fSee PI. Mem.)
Plaintiff asks that the court grant injunctive relief pursuant to the ADA as well as fees and
damages under state law. Qd. at 20-21.)

In support of his motion. Plaintiffsubmits two declarations from himself(see Jan. 2018
Diaz Deck; Deck of Christhian Diaz Dated December 22,2017("Dec. 2017 Diaz Deck")(Dkt.

49-1)) and a declaration from Michael McCaffrey,founder of ADASure, a company that was

retained by Plaintiffs coimsel to perform a "compliance audit" on the Website(see McCaffrey
Deck). Because Defendant challenges the reliability ofthe McCaffrey declaration and urges the
court to disregard it, the court begins with a discussion ofits admissibility.

12

1.

The McCafiFrev Declaration

a.

Legal Standard

In deciding whether a motion for summaryjudgment should be granted, a district court
may only consider admissible evidence. See Nora Beverages. Inc. v. Perrier Grp. of Am..Inc..
164 F.3d 736,746(2d Cir. 1998)("On a summaryjudgment motion,[a] district court properly
considers only evidence that would be admissible at trial."(citation omitted)). Thus, as the
Second Circuit has explained, it is the proper role ofthe district court to consider the

admissibility ofexpert testimony in determining whether summaryjudgment is warranted:
Because the purpose of summary judgment is to weed out cases in
which 'there is no genuine issue as to any material fact and ... the
moving party is entitled to a judgment as a matter of law,'
Fed.R.Civ.P. 56(c), it is appropriate for district courts to decide
questions regarding the admissibility of evidence on summary
judgment. Although disputes as to the validity ofthe underlying data
go to the weight ofthe evidence,and are for the factfinder to resolve,
questions of admissibility are properly resolved by the court. The
resolution ofevidentiary questions on summaryjudgment conserves
the resources ofthe parties, the court, and the jury.

Raskin v. Wvatt Co.. 125 F.3d 55,66(2d Cir. 1997)(alteration in original)(internal citations
omitted). In other words,"[t]he court performs the same role at the summary judgment phase as
at trial; an expert's report is not a talisman against summaryjudgment." Id at 66. Thus,ifthe
expert testimony is excluded as inadmissible imder the Rule 702 framework articulated in
Daubert and its progeny,the summary judgment determination is made by the district court on a
record that does not contain that evidence. Id. at 66-67. Such an analysis must be conducted

even if precluding the expert testimony would be outcome determinative. See Gen. Elec. Co. v.
Joiner, 522 U.S. 136, 142-43 (1997). Accordingly, pursuant to Rule 104 ofthe Federal Rules of

Evidence,the court must examine the admissibility ofPlaintiffs expert testimony in ruling on
Defendant's motion for sximmary judgment.

13

The admissibility of expert testimony is analyzed under Rule 702 ofthe Federal Rules of
Evidence, which provides:

A witness who is qualified as an expert by knowledge, skill,
experience, training, or education may testify in the form of an
opinion or otherwise if:(a)the expert's scientific,technical, or other
specialized knowledge will help the trier of fact to understand the
evidence or to determine a fact in issue;(b)the testimony is based
on sufficient facts or data;(c)the testimony is the product ofreliable
principles and methods; and (d)the expert has reliably applied the
principles and methods to the facts ofthe case.
Fed. R. Evid. 702.

The proponent ofthe expert testimony bears the burden ofestablishing the admissibility
of such testimony under the Daubert framework by a preponderance-of-the-evidence standard.
See Daubert. 509 U.S. at 592 n.10("These matters should be established by a preponderance of
proof."(citing Bouriailv v. United States. 483 U.S. 171,175-76 (1987))); see also Barrett v.
Rhodia. Inc.. 606 F.Sd 975,980(8th Cir.2010)("[T]he party offering the expert testimony must
show by a preponderance ofthe evidence both that the expert is qualified to render the opinion
and that the methodology imderlying his conclusions is scientifically valid."(citations and

quotation marks omitted)); accord Baker v. Urban Outfitters. Inc.. 254 F. Supp. 2d 346, 353
(S.D.N.Y. 2003); Fed. R. Evid. 702 advisory committee's note ("[T]he admissibility of all expert
testimony is governed by the principles of Rule 104(a)). Under that Rule,the proponent has the
burden of establishing that the pertinent admissibility requirements are met by a preponderance
ofthe evidence.").

"The district court is the ultimate 'gatekeeper,'" United States v. Williams. 506 F.3d 151,
160(2d Cir. 2007), and "must ensiue that any and all scientific testimony or evidence admitted is
not only relevant, but reliable," Daubert 509 U.S. at 589; see also Kumho Tire Co. v.

Carmichael. 526 U.S. 137,152(1999)(holding that whether the witness's area of expertise is

14

technical, scientific, or more generally "experience-based," the district court, in its "gatekeeping"

function, must"make certain that an expert, whether basing testimony upon professional studies
or personal experience, employs in the courtroom the same level ofintellectual rigor that
characterizes the practice of an expert in the relevant field").
Thus,imder Rule 702,the district court must make several determinations before

allowing expert testimony:(1) whether the witness is qualified to be an expert;(2) whether the
opinion is based upon reliable data and methodology; and(3) whether the expert's testimony on
a particular issue will assist the trier offact. See Nimelv. 414 F.Sd at 396-97.
With respect to reliability,"the district court should consider the indicia of reliability
identified in Rule 702,namely,(1)that the testimony is grounded on sufficient facts or data;(2)
that the testimony is the product ofreliable principles and methods; and(3)that the witness has

applied the principles and methods reliably to the facts ofthe case." Williams. 506 F.3d at 160
(intemal citation and quotation marks omitted). As the Second Circuit has explained,
the Supreme Court "has identified a number offactors bearing on reliability that district courts
may consider, such as(1) whether a theory or technique can be (and has been)tested;(2)
whether the theory or technique has been subjected to peer review and publication;(3)a
technique's known or potential fate of error, and the existence and maintenance ofstandards

controlling the technique's operation; and(4)whether a particular technique or theory has gained
general acceptance in the relevant scientific community." Amorgianos v. Nat'l R.R. Passenger

Corp.. 303 F.3d 256,266(2d Cir. 2002)(intemal citations and quotation marks omitted); accord
Nimelv.414 F.3d at 396. These criteria are designed to be instructive, but do not constitute a

definitive test in every case.

Kumho. 526 U.S. at 151; Nimelv. 414 F.3d at 396. Moreover,

in addition to these criteria for deterniming whether the methodology is reliable. Rule 702 also

15

requires that there be a sufficiently reliable connection between the methodology and the
expert's conclusions for such conclusions to be admissible. See Gen. Elec. Co.. 522 U.S. at 146
("[NJothing in either Daubert or the Federal Rules ofEvidence requires a district court to admit
opinion evidence that is connected to existing data only by the ipse dixit ofthe expert. A court

may conclude that there is simply too great an analytical gap between the data and the opinion
proffered."); see also Amorgianos. 303 F.3d at 266("[W]hen an expert opinion is based on data,
a methodology, or studies that are simply inadequate to support the conclusions
reached, Daubert and Rule 702 mandate the exclusion ofthat unreliable opinion testimony.").
b.

Discussion

Defendant urges the court to disregard the McCaffrey declaration because McCaffrey
"failed to disclose any information about the process or methodology used to conduct the 'audit'
ofthe website, and is therefore unreliable." (Def. Opp'n at 5.) Defendant contends that
McCaffrey failed to disclose any information concerning "what the audits entailed, how they

were performed, what the audits were designed to accomplish, what standards were used to
conduct the audits, or whether the method by which he performed the audits is accepted within
his field." (Def. Reply Mem.in Supp. of Mot. to Dismiss or for Summ. J.("Def. Reply") at 5.)

Plaintiff counters that the November 13,2017 "Website Compliance Audit" performed by
ADASure includes a"Methods and Measvurements" section addressing ADASure's "website
analysis methodology." (PI. Reply Mem.in Supp. of Mot. for Summary J.("PI. Reply") at 5.)
The court agrees with Defendant that McCaffrey's declaration is insufficiently reliable.
As an initial matter, McCaffrey provides no details about his own role in the audits conducted by
ADASure,beyond his statements that he is the foimder of ADASure and that"ADASure team
members and [he] audited" various aspects ofthe website. (See McCaffrey Decl.

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1, 9-12.)

The audits also lack detailed explanations of methodology and process. The "Methods and
Measurements" section ofthe November 13,2017 report identified by Plaintiffin his reply brief
is cursory at best. For example,step 1,"Manual Review" is described as: "developers manually
review the website code to find errors as they relate to WCAG 2.0 Level A and Level AA." In

Step 2, Quality Assurance,"testers use automated technology to verify issues foimd in step 1 as
well as check for new issues." (McCaffrey Deck Ex. G at 2.) These high-level descriptions of
the audit process are insufficient to demonstrate the reliability of McCaffrey and the ADASure
audits. The screen recording videos attached to the audit report, which show a user navigating
the Website and thus purport to "show the process of conducting the audit ofthe website"(PI.

Reply at 5), are not a sufficient replacement for a proper explanation of overall methodology and
process. Additionally,the court notes that the September 2,2017, September 3,2017,and
November 10,2017 audits contain no such methodology sections. McCaffrey also does not

indicate whether the methods and measurements employed in any ofthe audits are widely
accepted or standard in the field. The court thus finds that the Plaintiff has failed to meet his

burden in proving that McCaffrey's opinions are sufficiently reliable under Rule 702 and
Daubert. The court thus declines to consider the McCaffrey declaration and appended audit
reports.
2.

Plaintiff's Declarations

Leaving aside the McCaffrey declaration, the court considers whether the record indicates

that "there is no genuine dispute as to any material fact and [Plaintiff] is entitled to judgment as a
matter oflaw." Fed. R. Civ. P. 56(a);^Raskin. 125 F.3d at 66-67(explaining that if expert
testimony is excluded as inadmissible, the summaryjudgment determination is made by the
district court on a record that does not contain that evidence).

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In his own declarations, signed in December 2017 and January 2018, Plaintiff avers that
the Website still contains barriers to his equal access,including that he cannot access the search
button on the homepage or complete a purchase. (See Jan. 2018 Diaz Decl.; Dec. 2017 Diaz
Decl.)
Defendant counters with declarations from Rebecca Andrysiak, Defendant's Director of
Marketing Communications and Ecommerce, who oversaw the upgrade ofthe Website. CSee

Andrysiak Decl. Tf 6; Andrysiak Reply Decl.) These declarations also date from December 2017

and January 2018. (See Andrysiak Decl.f 6; Andrysiak Reply Decl.) In them, Andrysiak
describes Defendant's efforts to ensure that the Website conforms with WCAG accessibility

guidelines and avers that,"to the best of[her] knowledge ...the website is in conformance with
the Web Content Accessibility Guidelines 2.0, Level AA standard." (Andrysiak Decl.f 6.)

Notably, Andrysiak states that Defendant has retained a vendor to run regular scans ofthe
website and intends to remedy any identified errors to ensure continued compliance with these
accessibility guidelines going forward, implying that errors identified by Plaintiff may have since
been remedied. fSee id.f 10.) Andrysiak also calls iato question the materiality ofthe errors

identified in Plaintiffs declarations. For example, she states that although a visually impaired
user may not be able to access the search icon on the homepage,he or she can nonetheless

navigate through the Website using a keyboard.^ (Andrysiak Reply Decl.^ 4.) Whether such a
barrier impedes the full and equal enjoyment ofthe Website such that it rises to the level of an
ADA violation is a disputed question offact not appropriate for resolution by the court at this
time.

® Although Andrysiak's reply declaration is addressed to the errors identified in the ADASure audit, it applies to
Plaintiffs declarations to the extent that he identifies similar or the same errors.

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The declarations submitted by the parties thus demonstrate that genuine issues of material

fact exist as to whether the upgraded website—^which is apparently being regularly reviewed and
tweaked to address accessibility concerns—currently contains barriers to access that rise to the
level of an ADA violation. Because there is a triable issue as to whether the Website violates the

ADA,summaryjudgment would be inappropriate.
IV.

CONCLUSION

For the foregoing reasons, Defendant's motion to dismiss and/or for summaryjudgment
and Plaintiffs motion for summaryjudgment are DENIED
SO ORDERED.

s/Nicholas G. Garaufis
NICHOLAS G. GARAUFI
W
United States District Judge

Dated: Brooklyn, New York
July
,2019

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