Kreisler v. Second Avenue Diner Corp. et al
Filing
53
OPINION AFTER BENCH TRIAL: For the reasons stated above, the Court finds that Plaintiff has met his burden with respect to the step outside of the Diner, the lack of proper signage, the absence of a rear grab bar in the men's restroom, and the l ack of insulation over the restroom pipes. Judgment is thus entered in favor of Plaintiff against Defendants, who shall be jointly and severally liable, as follows: IT IS HEREBY ORDERED THAT Defendants shall initiate the process for obtaining a permi t to build a permanent ramp along Second Avenue no later than October 10, 2012, and shall build a permanent ramp that complies with ADA standards within 90 days of the date it receives the appropriate permits. IT IS FURTHER ORDERED THAT Defendants s hall install a rear grab bar in the men's restroom of the Diner no later than October 10, 2012. IT IS FURTHER ORDERED THAT Defendants shall install insulation over the pipes under the sinks in both restrooms no later than October 10, 2012. IT IS FURTHER ORDERED THAT Defendants shall post an updated permanent sign outside of the Diner no later than October 10, 2012. IT IS FURTHER ORDERED THAT Defendants shall pay Plaintiff $1,000 in damages no later than October 10, 2012. IT IS FURTHER ORDERED THAT Plaintiff shall make a submission detailing the costs and attorney's fees incurred in connection with this case no later than October 10, 2012. Defendants' opposition, if any, is due by November 10, 2012. (Signed by Judge Richard J. Sullivan on 9/10/2012) (cd)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
_____________________
No. 10 Civ. 7592 (RJS)
_____________________
TODD KREISLER,
Plaintiff,
VERSUS
SECOND AVENUE DINER CORP., et al.,
Defendants.
__________________
OPINION AFTER BENCH TRIAL
September 10, 2012
__________________
RICHARD J. SULLIVAN, District Judge:
Plaintiff Todd Kreisler brings this action
against Defendants Second Avenue Diner
Corp. and J.J.N.K. Corp. pursuant to Title
III of the Americans With Disabilities Act
(“ADA”), 42 U.S.C. § 12181 et seq., the
New York City Human Rights Law
(“NYCHRL”), N.Y.C. Admin. Code § 8107(4)(a), and the New York State Human
Rights Law (“NYSHRL”), N.Y. Exec. L.
§ 296(2)(a).
a rear grab bar in the men’s restroom, but
that Plaintiff has failed to carry his burden
with respect to the rest of the alleged
violations.
The Court also finds that
Defendants must pay $1,000 in damages and
are liable for attorneys’ fees in an amount to
be determined upon further submissions by
Plaintiff.
Having held a bench trial in this action,
the Court issues the following Findings of
Fact and Conclusions of Law, as required by
Rule 52(a) of the Federal Rules of Civil
Procedure. For the reasons set forth below,
the Court finds that Plaintiff has met his
burden of establishing that Defendants must
construct a permanent ramp outside of the
Plaza Diner, post clearer signage, and install
Plaintiff commenced this action on
October 4, 2010. The Complaint alleges
that Defendants have violated the ADA, the
NYCHRL, and the NYSHRL by operating a
place of public accommodation -- namely, a
diner -- that is inaccessible to individuals
who use wheelchairs due to a step at the
entrance, a vestibule that is difficult to
maneuver, and an interior that is
I. PROCEDURAL HISTORY
inaccessible in numerous respects. Plaintiff
seeks injunctive relief to remove alleged
architectural barriers at Defendants’ facility,
as well as attorneys’ fees and compensatory
damages.
that time, he observed a step that was
approximately seven or eight inches high
and concluded that he would be unable to
enter the premises. Accordingly, he made
no attempt to enter the Diner. (Id. at 23:1112.) In fact, Plaintiff has never entered the
Diner (id. at 26:22-24, 27:15-16), although
he passes by it three to four times a week
(id. at 24:4-6). Since the start of this
litigation, Plaintiff has noticed the addition
of a buzzer outside the Diner, which
presumably is designed to enable
wheelchair-bound patrons to ring for
assistance
in
entering
the
Diner.
Nevertheless, Plaintiff has made no attempt
to enter the Diner (id. at 28:14-24), though
he indicated that he might attempt to enter
were there some indication that Plaintiff
might be able to access the facilities, such as
a sign explicitly stating that a ramp was
available (id. at 32:9-22).
On October 5, 2011, the Court denied
Defendants’ motion for summary judgment
(Doc. No. 39), and on October 11, 2011, the
case proceeded to a non-jury trial. At trial,
Plaintiff called four witnesses -- Todd
Kreisler, Konstantinos (“Mike”) Aronis,
John Kalas, and Leon Geoxavier -- all of
whom were cross-examined by Defendants.
At the conclusion of Plaintiff’s case,
Defendants called two witnesses -- David
Gentile and Panagis Georgopoulos -- each of
whom Plaintiff cross-examined. On
November 1, 2011, the parties submitted
post-trial memoranda (“Post-Trial Mem.”)
in lieu of closing arguments.
II. FINDINGS OF FACT1
Plaintiff frequents diners and other
restaurants in his neighborhood, is interested
in eating at the Diner, and likely would do
so, provided it were accessible. (Id. at 24:912.) Although the Diner provides delivery
service, the Court finds credible Plaintiff’s
assertion that he has not ordered from the
Diner because he does not order from places
he cannot access, and not because he is
uninterested in eating at the Diner. (Id. at
29:25–30:4.)
Plaintiff has filed other
lawsuits in the past against restaurants and
other places of public accommodation in his
neighborhood, and has accessed or eaten at
several of the restaurants that he has sued
subsequent to the resolution of those
lawsuits. (Id. at 56:12-59:3.)
A. The Parties
1. Plaintiff
Plaintiff Todd Kreisler resides at 250
East 60th Street, New York, New York,
which is about four blocks from the Plaza
Diner (the “Diner”). (Tr. 20:18-19, 24:7-8.)
He has cerebral palsy, as well as rheumatoid
arthritis and asthma. He can stand, but he
cannot walk. (Id. at 21:1-6.) Accordingly,
he uses a motorized wheelchair to travel in
and around his neighborhood. (Id. at 35:511).
Plaintiff first passed by the Diner in
September of 2008. (Id. at 22:15-16.) At
2. Second Avenue Diner Corp.
Second Avenue Diner Corp., known as
the Plaza Diner, is located at 1066 Second
Avenue, New York, New York, at the
northeast corner of Second Avenue and 56th
Street.
1
The following facts are taken from the evidence
presented at trial, the trial transcript (“Tr.”), and the
stipulations of the parties. To the extent that any
Finding of Fact reflects a legal conclusion, it shall to
that extent be deemed a Conclusion of Law, and viceversa.
2
Second Avenue Diner Corp. is owned by
Konstantinos Aronis, and leases the
premises from J.J.N.K. Corp. pursuant to a
rental agreement that increases the rent each
year. (See Pl.’s Ex. 2.) From October 2010
until September 2011, the Diner paid
$15,462 per month in rent; after October
2011, the rent increased to $16,000 per
month. (Tr. 164:17-24.) The Diner earns
roughly $12,000 in gross sales each week.
(Id. at 132:22-25.) In 2010, the Diner’s
gross sales totaled $615,799, and its net
profit was $23,383. (Pl.’s Ex. 6; Tr. 134:5.)2
Because the Diner has struggled to cover its
rent, J.J.N.K. Corp. has not charged it for
real estate tax increases. (Tr. 170:7-9,
171:11-18.)
B. The Diner
1. The Entrance
The Diner has one entrance that is
accessible to the general public on the
Second Avenue side and is approximately
one to two feet from the corner of the
building. (Tr. 352:1-5.) The entrance has
one step, which is approximately eight
inches high. (Id. at 308:13-14.)
Prior to the start of this litigation, the
Diner possessed a small portable ramp made
of wood. (Id. at 87:1-6.) Patrons in
wheelchairs were usually pulled up the ramp
in reverse; on one occasion, Aronis observed
a person on a motorized wheelchair entering
forward without assistance. (Id. at 87:1224.)
Approximately three or four
individuals in wheelchairs eat at the Diner
each week. (Id. at 83:7-13.)
3. J.J.N.K. Corp.
J.J.N.K. Corp. is the owner and landlord
of the premises located at 1066 Second
Avenue. (Tr. 148:24-25.) John and Nick
Kalas, brothers, each own 50% of the stock
of J.J.N.K. (Id. at 148:9-12.) It is organized
as a holding company such that J.J.N.K. as
an organization receives exactly $36,000 in
income each year. (Id. at 177:20-21.) The
rest of the corporation’s income is
distributed to John and Nick Kalas as
managers of the property, and each earns
about $100,000 to $125,000 per year. (Id. at
177:20-25, 185:22-23.) Neither individual
is named as a party in this litigation.
Subsequent to the commencement of this
litigation, J.J.N.K. Corp. bought a new ramp
as a gift for the Diner. (Id. at 112:12-113:1.)
The ramp is made of aluminum, worth
roughly $300 to $500, contains anti-skid
material, and does not have hand rails. (Id.
at 113:2-9.) Defendants also installed a
buzzer at the entrance of the Diner with a
sign, which is printed on what appears to be
a white sheet of paper, that says “Please
Ring Bell for Assistance.” (Id. at 114:1019; Pl.’s Ex. 14, App. C at 2.) Since the
initiation of this lawsuit, the buzzer has been
utilized only once, but Diner employees are
trained to look out for individuals who may
need assistance entering the Diner. (Tr.
114:5-12.) The sign is removed for twiceweekly window cleaning, though Aronis
conceded that the sign is sometimes down
for longer periods of time. (Id. at 114:23115:10.) The buzzer is affixed to a metal
strip between the panes of glass. (Id. at
115:17-20.)
2
At trial, Aronis testified that in 2010, the Diner
made roughly $72,072 in sales.
(Tr. 92:25.)
However, this appears to be based on a misreading of
the tax returns: Second Avenue Diner Corp’s 2010
tax return reflects $615,799 in sales and $72,072 in
“Total Liabilities and shareholders’ equity.” (Pl.’s
Ex. 6.) The parties did not offer any evidence
regarding the calculation of the “Total Liabilities and
shareholder’s equity” total; moreover, Plaintiff did
not challenge Defendants’ tax returns as an accurate
reflection of their revenues and profits.
3
The sidewalk outside of the Diner along
Second Avenue could accommodate a
permanent ramp that complies with ADA
standards. (Id. at 211:14-16, 215:18-23.)
The cost of the ramp would vary depending
on design, but would cost between $3,000
and $10,000. (Id. at 222:8-12.)3
wheelchairs generally need assistance
opening the doors. (Tr. 88:10–89:4.)
The vestibule is currently five feet by
four feet; however, in order to comply with
the ADA, it would need to be five feet by
seven feet. (Id. at 315:7-18.) To enlarge the
vestibule, the Diner would need to remove
one booth, resulting in the loss of four seats
and annual sales of at least $24,000. (Id. at
123:10-124:9; Pl.’s ex. 15-15 to 15-18.)
Rebuilding the vestibule to comply fully
with the ADA also would entail a one-time
construction cost of between $5,000 and
$10,000. (Tr. 316:6-15.)
Separate from the cost of building a
ramp, Defendants’ expert, Georgopoulos,
testified for the first time at trial that he had
learned of a directive from the New York
City Department of Transportation that
prohibited the construction of a permanent
ramp on the corner of Second Avenue and
56th Street. (Id. at 310:8-21.) He stated that
he found this directive three weeks prior to
the trial, and acknowledged that he had not
previously done any research as to whether a
permanent ramp could be constructed. (Id.
at 311:7-23.) Defendants concede that they
have never sought a permit or other
regulatory clearance for building a ramp.
(Id.)
3. The Interior
The Diner has a seating capacity of
approximately fifty, with counter seating for
approximately ten on stools and the balance
made up of booth tables arranged in two
rows. (Tr. 124:24-25:11.) Because of the
height of the counter, individuals in
wheelchairs cannot use the counter seating
(id. at 99:11-20), but can sit at the ends of
booths (id. at 96:25-97:1-2). There are three
to four tables in the Diner that individuals in
wheelchairs may not use because doing so
would create risks in the event of fire by
blocking access to exits. (Id. at 97:5-7.)
A ramp could also be built inside of the
building, but not within the existing
vestibule. (Id. at 214:14-19.) Neither party
submitted evidence regarding the potential
cost of such a project. (Id. at 216:5-10.)
2. The Vestibule
The aisle between the two rows of
booths is roughly thirty-two-inches wide.
(Id. at 125:18-21.) Because the booths are
fixed and cannot be narrowed due to “cap
wrapping” around them, the only way to
widen the aisle would be to remove a row of
smaller booths that seat two people,
resulting in a loss of six seats. (Id. at
323:19-24, 126:1-9.) In order to make the
counter accessible to wheelchairs, it would
have to be altered in such a way that the
counter would lose three to four seats. (Id.
at 124:10-15.)
Upon entering the front door of the
Diner, there is a vestibule in which a person
must make a left turn before proceeding
through another door. Both doors swing
outward, and individuals who use
3
Defendants’ expert, Panagis Georgopoulos, testified
that the cost of a permanent ramp would be roughly
$12,000. (Id. at 314:11-13.) The Court found
Georgopoulos to be less credible than Plaintiff’s
expert, Leon Geoxavier, particularly in light of the
former’s rapidly changing account of his research
into City regulations. However, in any event, for the
reasons set forth below, the Court finds that
installation of the permanent ramp would be readily
achievable even if it costs $12,000.
4
The last major changes to the premises
were made in 1990. (Id. at 192:9-11.) In
recent years, the Diner has made other
improvements, including replacing ceiling
tiles (id. at 91:15-17), installing a drop
ceiling in 2003 (id. at 93:23-24), replacing
parts in fluorescent lights (id. at 91:19-21),
and adding neon trim to the Diner’s interior
(id. at 121:24-25). Additionally, the Diner
has purchased an air conditioning unit, reupholstered seats, changed the external sign
from neon to LED, and purchased kitchen
equipment.
(Id. 95:6-22.)
The floor,
entrance, and counter have all remained
largely the same since at least 2003, and the
general layout, seating, and restrooms have
not changed since 1990. (Id. at 91:22-24,
121:4-11, 151:8-10.)
The women’s room is larger than the
men’s room. (Tr. 101:9.) As a result,
individuals who use wheelchairs are directed
to use the women’s room, even though it is
not marked as a restroom for the disabled.
(Id. at 102:5-20.) The women’s restroom
has both a rear and side grab bar around the
toilet. The grab bars were installed in 1998.
(Pl.’s Ex. 15-8; Tr. 102:25–103:3, 110:8-22,
319:21-24.) The side grab bar is roughly
eight inches above the toilet paper dispenser.
(Tr. 109:16-23.) Like the men’s room,
however, at the time of the trial the women’s
room lacked any guard or insulation under
the sink. (Pl.’s Ex. 15-10.)
Because there is little unused space in
the Diner, expanding one or both of the
restrooms while otherwise maintaining the
basic layout of the restaurant would result in
the loss of one to two booths, or four to
eight seats. (Id. at 124:16-22, 277:11279:14.) No cost estimate was provided
either for expanding the restrooms or for
combining them to be a larger unisex
restroom. (Tr. 234:16-18.) In any event, the
latter option is precluded by the Diner’s beer
and wine license, which requires it to have
two restrooms. (Id. at 127:14-18.)
4. Restrooms
Although the Diner has both a men’s and
women’s restroom, Plaintiff’s expert, Leon
Geoxavier, acknowledged that he only
entered the men’s room. (Id. at 225:17-21.)
The men’s restroom at the Diner is small,
and people who use wheelchairs have
sometimes been unable to access it (Id. at
102:5-10) because there is insufficient floor
space for some individuals to maneuver with
their wheelchairs. (Id. at 227:11-16.)
Less intrusive changes to the existing
restrooms could be accomplished more
cheaply. Insulating sink pipes would cost
approximately $500 (Tr. 320:14-18), and
new grab bars would cost $500 to $1,000
(Tr. 321:1-2).
The men’s room has one grab bar
alongside the toilet, but does not have one
behind the toilet. (Pl.’s Ex. 15-2; Tr. 106:45; 228:21-23.) At the time of the trial, there
was no guard or insulation under the sink in
the men’s restroom to protect people who
use wheelchairs from being burned by hot
pipes. (Pl.’s Ex. 15-8; Tr. 229:1-4.)4
Memorandum. However, Aronis, who was called by
Plaintiff but is an officer of Second Avenue Diner
Corp., authenticated the photographs and stated that,
although the photos are incomplete, they are largely
representative of the inside of the Diner. (Tr.
105:15–109:5.)
The Court considered Aronis’s
testimony that the photos were not fully
representative. Accordingly, the Court finds that any
failure by Plaintiff to provide for the provenance of
the photographs is harmless.
4
Defendants objected at trial to Plaintiff’s Exhibit 15,
which contains a series of photographs, on the
grounds that the individual who took the photographs
was not identified, as required by Rule 26(a)(1) of the
Federal Rules of Civil Procedure.
Defendants
renewed their objection in their post-trial
5
the defendant’s premises); Small v. Gen.
Nutrition Cos., 388 F. Supp. 2d 83, 88-89
(S.D.N.Y. 2005) (holding that allegations of
awareness of a barrier and resulting
deterrence are sufficient to establish
standing without a plaintiff undertaking a
“futile gesture” of attempting to enter)
(citing
42
U.S.C.
§ 12188(a)(1)).
Accordingly, the Court reaffirms its October
5, 2011 ruling that Plaintiff has established
standing to sue with respect to the entry
barriers at the Diner.
III. CONCLUSIONS OF LAW
A. Jurisdiction
The Court has jurisdiction over this
action pursuant to 28 U.S.C. § 1331. The
Court has supplemental jurisdiction over the
state law claims pursuant to 28 U.S.C.
§ 1367(a). Venue in the Southern District is
proper under 28 U.S.C. § 1391(b)-(c).
B. Title III of the ADA
1. Standing
With respect to the interior violations -including the height of the counter, width of
the aisles, and size and features of the
restrooms -- Defendants argue that Plaintiff
lacks standing to challenge the conditions
inside the Diner because he has never
entered or attempted to enter the premises.
However, as the Court stated in its October
5, 2011 Order, it finds persuasive the rulings
in the Eighth and Ninth Circuits that, once a
plaintiff has established that he has standing
to sue with respect to one barrier, he can sue
with respect to all barriers on the premises
affecting his disabilities. See Doran v. 7Eleven, Inc., 524 F.3d 1034, 1047 (9th Cir.
2008) (“An ADA plaintiff who has Article
III standing as a result of at least one barrier
at a place of public accommodation may, in
one suit, permissibly challenge all barriers in
that public accommodation that are related
to his or her specific disability.”); Steger v.
Franco, 228 F.3d 889, 894 (8th Cir. 2000)
(holding that a blind plaintiff who
encountered one barrier had standing to sue
regarding all barriers to blind patrons -- even
those not encountered by him personally -since requiring that a plaintiff encountered
all barriers would result in “piecemeal
compliance [with the ADA]”); see also
Trump Int’l Hotel & Tower Condo., 458 F.
Supp. 2d at 174 (agreeing with Steger that
“it would be absurd to require 70 different
plaintiffs to bring 70 different lawsuits” for
each noncompliant room in an arena even
Although the Court has already
determined that Plaintiff has standing to sue
with respect to the front step and vestibule
(see Doc. No. 39), Defendants persist in
asserting that Plaintiff lacks standing to
bring this action because he never entered or
attempted to enter the Diner prior to trial.
Nothing presented at trial undermines the
conclusions set forth in the Court’s Order
dated October 5, 2011.
Specifically, as noted above, the Court
credits Plaintiff’s testimony that he would
visit the Diner if he were able to access it
but has not attempted to do so because of the
high step and lack of any indication that he
would be able to enter. This is sufficient to
establish standing to sue under the ADA.
See Access 4 All, Inc. v. G & T Consulting
Co., LLC, No. 06 Civ. 13736 (DF), 2008
WL 851918, at *4 (S.D.N.Y. Mar. 8, 2008)
(holding that 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) (holding that “awareness of
discriminatory conditions, and the avoidance
of a public accommodation because of that
awareness, is injury in fact,” regardless of
whether a wheelchair user actually entered
6
the ADAAG. 28 C.F.R. § 36 App. D.5
Although only new construction and altered
portions of existing facilities must comply
with the standards, see id. § 36.406(a), the
ADAAG nonetheless “provide[s] valuable
guidance for determining whether an
existing facility contains architectural
barriers.” Pascuiti v. N.Y. Yankees, 87 F.
Supp. 2d 221, 226 (S.D.N.Y. 1999); see also
Brown v. Cnty. of Nassau, 736 F. Supp. 2d
602, 616-17 (E.D.N.Y. 2010) (“In other
words, a plaintiff certainly cannot claim that
an existing facility’s non-compliance with
the ADAAG standards, by itself, constitutes
a prima facie violation of the ADA. . . .
However . . . [the ADAAG standards] can
still provide guidance as to whether an
existing facility is readily accessible and
usable by individuals with disabilities.”).
where the plaintiff only actually encountered
one room).
Plaintiff’s testimony at trial does not
alter this conclusion. At trial, Plaintiff
stated that he had input into the Complaint,
but that he was “not familiar” with the
interior violations because he could not get
into the Diner to see them. (Tr. 44:2-5, 1623.) Plaintiff’s testimony that he personally
encountered the barrier to entry and was
made aware of the interior barriers is
sufficient, even though Plaintiff would not
have been able to testify as to the specifics
of the interior barriers. Thus, none of the
evidence at trial undermines the Court’s
conclusion that Plaintiff has standing to sue
for all violations alleged in the Complaint.
2. Violation of the ADA
To claim a violation of Title III of the
ADA, a plaintiff must establish: “(1) [that]
he or she is disabled within the meaning of
the ADA; (2) that the defendants own, lease,
or operate a place of public accommodation;
and (3) that the defendants discriminated
against the plaintiff within the meaning of
the ADA.” Roberts v. Royal Atl. Corp., 542
F.3d 363, 368 (2d Cir. 2008) (citation
omitted). The parties do not dispute that,
under the ADA, Plaintiff is disabled. (Tr.
5:8-10.) Nor do they dispute that the Diner
is a place of public accommodation pursuant
to 42 U.S.C. § 12181(7)(B). The sole issue,
therefore,
is
whether
Defendants
discriminated against Plaintiff within the
meaning of the ADA.
Under
the
ADA,
disability
discrimination includes “failure to remove
architectural barriers . . . where such
removal is readily achievable.” 42 U.S.C.
§ 12182(b)(2)(A)(iv). The Department of
Justice promulgates the ADA Standards for
Accessible Design, hereinafter cited to as
Here, there is no question that Plaintiff
encountered architectural barriers that
rendered the facility inaccessible. The only
question is whether removal of those
barriers is “readily achievable.” Under the
ADA, “‘readily achievable’ means easily
accomplishable and able to be carried out
without much difficulty or expense.” 42
U.S.C. § 12181(9). Factors to be considered
when determining if a modification is
readily achievable include: (1) the nature
and costs of needed changes; (2) the
financial resources of the facility, number of
employees, effect on expenses and
resources, and other impact on the facility;
(3) the financial resources and size of the
defendant; and (4) the type of operations at
the facility and relationship between the
facility and the defendant. Id.
5
In 2010, the Department of Justice promulgated
new guidelines, which became effective on March
15, 2012. 28 C.F.R. § 36; AG Order No. 3181-2010.
However, since all of the events in this litigation took
place prior to the effective date of the 2010
guidelines, the Court will apply the 1991 guidelines.
7
barrier that do not fully comply with the
specified requirements,” such as building a
ramp with a steeper slope than the ADAAG
would ordinarily permit.
28 C.F.R.
§ 36.304(d)(3). Additionally, the ADA’s
implementing regulations set forth clear
priorities for making facilities accessible:
first, the entrance should be made
accessible; second, the areas where goods
and services are made available to the public
should be made accessible; third, restrooms
should be made accessible; fourth, any other
measures necessary should be taken. Id.
§ 36.304(c). The Court will consider, in
turn, whether the modifications Plaintiff has
proposed to each of these areas are readily
achievable.
In order to make a prima facie showing
that removal is readily achievable, a plaintiff
must “articulate a plausible proposal for
barrier removal, ‘the costs of which,
facially, do not clearly exceed its benefits.’”
Roberts, 542 F.3d at 373 (quoting Borkowski
v. Valley Cent. Sch. Dist., 63 F.3d 131, 138
(2d Cir. 1995)). “Neither the estimates nor
the proposal are required to be exact or
detailed, for the defendant may counter the
plaintiff’s showing by meeting its own
burden of persuasion and establishing that
the costs of a plaintiff’s proposal would in
fact exceed the benefits.” Roberts, 542 F.3d
at 373. Requiring great detail “asks too
much of the typical plaintiff, particularly
where defendants can so quickly dispose of
non-meritorious claims by reference to their
knowledge and information regarding their
own facilities.” Id. at n.6. Once the plaintiff
meets its burden, the burden shifts to the
defendant to “establish[] that the costs of a
plaintiff’s proposal would in fact exceed the
benefits.” Id. at 373. Either party may
include “both monetary and non-monetary
considerations.” Id.
a. Step at the Entrance
Defendants do not seriously dispute that
the eight-inch step into the entrance of the
Diner constitutes an “architectural barrier”
under the ADA. Although Defendants have
a portable ramp available, a portable ramp is
permitted only “when installation of a
permanent ramp is not readily achievable.”
28 C.F.R. § 36.304(e). Accordingly, even if
individuals who use wheelchairs are
currently able to enter the Diner, the Court
still must assess whether installation of a
permanent ramp is readily achievable. The
determination has two parts: first, whether
Defendants can afford to build a ramp, and
secondly, whether New York City
regulations permit a permanent ramp’s
construction.
Nevertheless, even the minimal burden
of Roberts requires that a plaintiff must
provide at least some estimate of costs. See
id. at 377-78 (finding plaintiffs’ burden was
met when they “proffer[ed] plans -proposed themselves or with the aid of the
independent architect -- that would permit
facially cost-effective wheelchair access”);
see also Young v. Kali Hospitality, LTD, No.
2:07-CV-395, 2010 WL 3037017, at *8
(S.D. Ohio Aug. 2, 2010) (“Under even the
test from the Second Circuit, however, a
Title III plaintiff needs to provide some cost
estimate and a proposal for barrier
removal.”).
(i) Readily Achievable Based on Cost
The Court finds that Plaintiff has
established that building a ramp along the
front of the Diner is readily achievable;
however, the Court finds that constructing a
ramp inside the vestibule is not readily
achievable.
Where all changes needed for full
compliance are not readily achievable, “a
public accommodation may take other
readily achievable measures to remove the
8
permanent ramp outside of the Diner. First,
Defendants argue that due to the ongoing
Second Avenue subway project, no new
permanent structures are being permitted.
(Defs.’ Post-Trial Mem. 10.). However,
Defendants were unable to substantiate that
assertion in any way at trial. Second,
Defendants argue that City rules relating to
corner clearance make building a permanent
ramp impossible. (Id.).
Defendants’ expert testified that a ramp
along the front of the Diner would cost
$12,000, while Plaintiff’s expert testified
that it would cost between $5,000 and
$10,000. Neither expert included a specific
cost estimate in his report. Even accepting
Defendants’ higher estimate, however, the
Court finds that construction of a permanent
ramp outside the Diner would be readily
affordable based on the Diner’s annual
profits of roughly $23,383. (Tr. 134:5).
This is particularly true in light of federal
tax benefits available to small businesses
that undertake modifications designed to
make their premises more accessible to
persons with disabilities. Businesses with
less than $1,000,000 in total annual revenue
or with thirty or fewer full-time employees
can receive a tax credit for 50% of eligible
access expenditures in a year over $250 and
up to $10,250, with a maximum credit of
$5,000. 26 U.S.C. § 44. Alternatively, or
above the first $10,250, a business may
deduct expenses of barrier removal up to
$15,000. Id. § 190; see id. § 44(d)(7).
Accordingly, the tax benefits that would be
available to Defendants for improvements in
accessibility to the Diner would significantly
defray the costs of those improvements.
Thus, the Court finds that a ramp along the
outside of the Diner is readily achievable
based on cost.
Permanent structures on sidewalks are
subject to approval by the New York City
Department of Buildings (“NYCDOB”) and
Department
of
Transportation
(“NYCDOT”). 34 Rules of the City of N.Y.
§ 7-04(a). As a general matter, the Building
Code permits ramps in buildings built before
December 6, 1969 that extend up to 44
inches from the street line, N.Y.C. Admin.
Code § 27-308; moreover, the NYCDOT
will grant revocable consents for wider
ramps at a cost of $25 per year, 34 Rules of
the City of N.Y. § 7-04(a)(23). Generally
speaking, permanent structures are not
permitted within ten feet of the “corner
quadrant,” which is the area created by
extending the corner of each building to the
sidewalk. Id. § 7-06(c)(1). However,
“[w]here strict compliance with these rules
shall create undue hardship,” a petitioner
may make a written request for a waiver,
which should be granted “if in [the
Commissioner’s] opinion, the public health,
safety and general welfare will not be
endangered thereby.” Id. § 7-06(d)(1).
Such a waiver must first undergo review by
the Department of City Planning. Id. § 706(d)(2).
However, with respect to Plaintiff’s
alternative proposal of building a ramp
inside of the Diner, Plaintiff failed to
provide even a general cost estimate and
design proposal, resting instead on rank
speculation. Accordingly, the Court finds
that Plaintiff failed to set forth “a plausible
proposal” for building a ramp inside of the
Diner.
Defendants concede that they have never
attempted to obtain approval for a
permanent ramp, and have provided only
generalized
eleventh-hour
objections
concerning
the
above-mentioned
regulations. (See, e.g., Defs.’ Post-Trial
Mem. 10 (“The New York City Department
(ii) Local Laws
Defendants contend that City ordinances
will not permit the construction of a
9
the Diner’s annual net profits, the Court
concludes that modification of the vestibule
is not “readily achievable.” If alternatives to
making the vestibule more accessible exist,
Plaintiff has not met his burden of
presenting them.
of Transportation would not grant its
consent for a permit on a permanent ramp. A
permanent ramp on either side of the
building would violate the DOT’s corner
clearance policy.”).)
While Defendants
have established that it is possible that City
authorities will not permit them to build a
ramp, they have provided no explanation as
to why they should be excused from trying.
Indeed, a casual visual inspection of New
York City’s sidewalks suggests that
exceptions to the City’s sidewalk structure
rules are granted with some frequency.
Defendants thus have fallen far short of their
burden to establish that a ramp is not readily
achievable.
c. Interior
The parties dispute whether the changes
to the interior of the Diner since 1992 -namely, re-upholstering seats, changing
lights, adding a drop ceiling, and installing
an air conditioner and kitchen equipment -qualify as “alterations” sufficient to trigger
more onerous obligations to make the
premises fully compliant with current ADA
standards.
Accordingly, Defendants shall initiate
the formal process for seeking permission to
install a permanent ramp no later than
October 10, 2012. Upon receiving such
permission, Defendants shall build the
permanent ramp within 90 days.
The ADA distinguishes between two
types of changes to facilities: alterations,
which
trigger
sweeping
compliance
obligations, and modifications, which in
general do not. “Alterations” to facilities
constructed prior to 1992 “shall provide the
maximum physical accessibility feasible”
even if full compliance is “virtually
impossible.” 28 C.F.R. § 36.402(c). An
alteration is “‘a change . . . that affects or
could affect the usability of the building or
facility or any part thereof.’” Roberts, 542
F.3d at 369 (quoting 28 C.F.R. § 36.402(b)).
Renovation and other structural changes are
likely to constitute alterations, in contrast to
“[n]ormal maintenance, reroofing, painting
. . . or changes to mechanical and electrical
systems” that do not affect usability. Id. at
369-70.
But “[e]ven a relatively
inexpensive or localized modification” may
constitute an alteration if it “fundamentally
change[s] the use of a facility.” Id. at 370.
Where an alteration has been made, the path
of travel to the altered area must also be
accessible. Id. at 369 (citing 42 U.S.C.
§ 12182(b)(2)(A)(iv)).
b. Vestibule
Defendants appear to agree that
individuals who use wheelchairs have
difficulty navigating the vestibule without
assistance. (See Tr. 88:10–89:4.) However,
Plaintiff provided no plausible proposal for
reconfiguring the vestibule other than
generally asserting that it could be
reconfigured in a number of ways. (E.g., id.
at 261:20-24.)
The evidence presented at trial suggests
only that reconfiguration of the vestibule to
allow easier access by disabled individuals
would be costly, and would result in the loss
of at least four seats in the Diner. Such a
loss would reduce Defendants’ sales by
$24,000 annually, not to mention the costs
of reconfiguring the vestibule and the
possible need to close the Diner for some
period of time during renovations. Since
these costs would almost certainly exceed
10
is only thirty-two inches wide. Plaintiff did
not put forth specifics as to whether a thirtytwo inch aisle poses an architectural barrier
to him, but it may be inferred that it does.
If a plaintiff “identif[ies] a modification
to a facility and . . . mak[es] a facially
plausible
demonstration
that
the
modification is an alteration under the
ADA,” the burden shifts to the defendant “to
establish that the modification is in fact not
an alteration.” Id. at 371. If the Court
concludes that there has been an alteration,
the plaintiff must only “identify[] some
manner in which the alteration could be, or
could have been, made ‘readily accessible.’”
Id. at 372 (quoting 42 U.S.C. § 12183 and
28 C.F.R. § 36.402). The burden then shifts
to the defendant to “persuad[e] the factfinder
that the plaintiff’s proposal would be
‘virtually impossible’ in light of the ‘nature
of the facility.’” Id.
The ADAAG provides that fixed tables
must be accessible by means of an aisle at
least 36-inches wide between parallel edges
of tables. ADAAG § 5.3. If the Diner were
built today, the aisle would clearly be noncompliant. However, because the Diner’s
construction predates the ADAAG, Plaintiff
must establish that widening the aisle is
readily achievable. This Plaintiff has failed
to do. First, Plaintiff did not provide any
estimate of the cost of widening the aisle.
Additionally, Plaintiff failed to set forth any
proposal for widening the aisle. As a result,
the only evidence presented on this issue
was Defendants’ assertion that the only way
to widen the aisle would be to remove three
“two-top” booths, resulting in a loss of six
seats in a facility that has a seating capacity
of barely fifty. Such a change would
constitute a dramatic architectural alteration
and would result in a net annual loss of more
than $22,500 in sales, eliminating the
Diner’s profits entirely, or even causing it to
operate at a loss. On top of these losses
would be the cost of construction as well as
the potential need to close the Diner while
the renovations are completed. Such a
change is far from “easily accomplishable
and able to be carried out without much
difficulty or expense.”
42 U.S.C.
§ 12181(9); 28 C.F.R. § 36.304. Although
J.J.N.K. earns $36,000 per year, it is a
separate corporate entity from Second
Avenue Diner Corp., and although J.J.N.K.
is responsible for the accessibility of its
premises, Plaintiff has offered no reason
why it would be responsible for
compensating its tenant for its lost profits.
However, the ADA guidelines clarify
that minor changes do not trigger sweeping
obligations. For example, if a door handle is
replaced, the new handle must be compliant,
but the entire door need not be replaced.
ADAAG § 4.1.6(1)(a). Thus, absent the
finding of an alteration, Plaintiff bears the
burden of establishing that the removal of
the barriers in question are “readily
achievable.”
Plaintiff has not established that the
changes to the interior of the Diner since
1992 constitute “alterations” within the
meaning of the ADA. Indeed, the changes
made within the Diner constitute precisely
the kinds of minor and superficial changes
that courts have repeatedly held, and that
regulations indicate, do not trigger the
sweeping obligations that accompany
“alterations.”
Accordingly, the Court
analyzes each of the alleged violations
inside of the Diner under the “readily
achievable” standard.
(i) Aisle
Accordingly, Plaintiff has failed to meet
his burden of establishing that widening the
aisle in the Diner is readily achievable.
Plaintiff’s wheelchair is approximately
thirty inches wide, and the aisle in the Diner
11
exit. (Tr. 97:3-7.) Plaintiff presented no
evidence suggesting that the available
seating at booths is unacceptable and,
moreover, has presented no plausible
proposal for providing alternative seating.
Accordingly, Plaintiff has not carried his
burden of establishing that Defendants are
obligated to modify the seating in the Diner.
(ii) Counter
In addition to booths, the Diner provides
counter seating, which is not accessible by
individuals who use wheelchairs.
The
ADAAG provides:
[w]here food or drink is served at
counters exceeding 34 in (865 mm)
in height for consumption by
customers seated on stools or
standing at the counter, a portion of
the main counter which is 60 in
(1525 mm) in length minimum shall
be provided [at an accessible height]
. . . or service shall be available at
accessible tables within the same
area.
(iv) Signage
The Diner does not have any signs
containing the universal symbol of
accessibility for handicapped people as
suggested by the ADAAG. However, the
Court finds that such signage would be
inappropriate in any event, since the
facilities within the Diner are not, and will
not be, fully compliant with the ADAAG.
Nonetheless, the Court finds that the current
signage at the entrance of the Diner does not
provide sufficient information to disabled
patrons, particularly since the evidence at
trial established that the sign is frequently
removed for long periods of time. Clearly,
posting clearer instructions to disabled
patrons is readily achievable. Accordingly,
while the portable ramp is in use Defendants
shall post an updated sign informing
potential patrons that the ramp is available
for those requiring wheelchair access and
instructing them to use the buzzer for
assistance. When a permanent ramp is
installed, the sign shall inform patrons that
assistance with the doors is available.
Defendants shall post the sign permanently
and prominently in the window.
ADAAG § 5.2.
The fact that the Diner has some
counters that are inaccessible to disabled
individuals does not in itself violate the
ADA.
Plaintiff did not establish that
services provided at the counter are
unavailable at other tables, which are
accessible. Instead, the evidence indicated
that the counter merely provides an
alternative to booth seating and is in the
same general area as the booth seating.
Accordingly, Plaintiff has failed to establish
that the existence of the counter, without
more, violates the ADA.
(iii) Seating
Likewise, Plaintiff has not established
that there is insufficient accessible seating in
the Diner. The ADAAG states that “[w]here
fixed tables . . . are provided, at least 5
percent, but not less than one, of the fixed
tables (or a portion of the dining counter)
shall be accessible.” ADAAG § 5.1. The
evidence at trial established that there are
three to four tables where patrons who use
wheelchairs can sit without blocking the fire
d. Restrooms
The parties do not appear to dispute that
the size of the restrooms presents difficulty
for Diner patrons who use wheelchairs.
Although Plaintiff provided no cost estimate
of his own for needed changes to the
restroom, he seemingly adopts Defendants’
expert report, which states that making the
12
restroom fully accessible in compliance with
the ADAAG would cost $13,000. (Pl.’s
Mem. 10.) However, even Defendants’
estimate fails to account for the loss of four
to eight seats that would be necessary to
bring the restrooms into compliance, which
would result in at least $20,000 of lost
revenue per year. (See Tr. 294:23-297:21.)
Accordingly, the Court finds that Plaintiff
has not articulated a plausible proposal for
enlarging the restrooms. Moreover, any
proposals hinted at are not readily
achievable.
With respect to other alleged
deficiencies, Plaintiff has once again failed
to meet his burden of proof. For example,
although Plaintiff’s expert witness testified
that the soap dispenser is “too high,” he did
not introduce any evidence to establish how
high it is, or how its placement affects
individuals who use wheelchairs.
(Tr.
241:1-7.) Moreover, merely establishing
that the dispenser does not comply with the
ADAAG does not, absent a showing that the
facility has been altered, prove a violation
under the lowered standard applicable to
existing facilities.
Similarly, Plaintiff’s
expert’s general assertion that the mirror is
“not at the proper minimum and maximum
height” (id. 228:24-25) is insufficient to
establish a violation. Accordingly, the Court
finds that Plaintiff has failed to establish that
the placement of the soap dispenser and
mirror constitute architectural barriers under
the ADA.
At the same time, the fact that wholesale
alterations to the restrooms are not readily
achievable does not excuse Defendants from
taking smaller steps to make the restrooms
more usable for disabled patrons. For
example, the ADAAG requires both back
and side grab bars around toilets. See
ADAAG § 4.16.4, Fig. 29. While the
women’s restroom has both grab bars, the
men’s room lacks a rear grab bar. Indeed,
although the Court finds that the 1998
installation of grab bars did not constitute an
“alteration” triggering sweeping obligations
to make the Diner fully accessible, once
Defendants opted to install grab bars, they
were obligated to do so in a manner
consistent with the ADAAG. See Greer v.
Indep. Sch. Dist., 752 F. Supp. 2d 746, 75657 (N.D. Tex. 2010). Clearly, based upon
their net annual profit of over $23,000,
Defendants are able to pay the estimated
cost of $500 to $1,000 to install the grab
bars. Accordingly, Defendants shall install a
rear grab bar in the men’s restroom.
Plaintiff suggests in his post-trial
memorandum, for the first time, that the
women’s room door could be made to swing
outward. (Pl.’s Mem. 10-11.) However,
because Plaintiff failed to introduce
evidence of this at trial, and Defendants had
no opportunity at trial to address whether
this proposal would be readily achievable,
the Court will not consider it here.
In sum, then, Plaintiff has established
that Defendants are obligated to install a rear
grab bar in the men’s restroom and
insulation for the pipes below the sink in
both restrooms. However, Plaintiff has
For the same reasons, the Court also
finds that insulating the pipes below the
sink, which would cost roughly $500, is
readily achievable.6
covered the lavatory pipes and replaced fixed soap
dispensers with bottled soap. (Defs.’ Mem. 20.) The
Court makes no finding of fact as to whether such
improvements were in fact made or whether they
were done in a manner consistent with the ADAAG.
The Court simply finds that Defendants are obligated
to insulate the pipes in the restroom so that persons in
wheelchairs will not be scalded or otherwise injured
by coming in contact with exposed pipes.
6
Defendants represented in their post-trial briefing
that, subsequent to the initiation of this action, they
13
278 (S.D.N.Y. 2008).7 Accordingly, for the
reasons set forth above, the Court finds that
Plaintiff established violations of the
NYSHRL with respect to the ramp, signage,
grab bars in the men’s room, and pipe
insulation in both restrooms, but not with
respect to Plaintiff’s remaining claims.
failed to establish that Defendants must
remedy any of the other alleged violations in
the restrooms.
C. State Law Claims
1. New York State Human Rights Law
The NYSHRL makes it unlawful for the
owner or operator of a place of public
accommodation, “directly or indirectly, to
refuse, withhold from or deny to such person
any of the accommodations, advantages,
facilities or privileges thereof” on the
grounds of disability. N.Y. Exec. Law
§ 296(2)(a) (McKinney 2010). Specifically,
discrimination in violation of § 296(2)(a)
includes:
2. New York City Human Rights Law
Under the NYCHRL, an owner, lessee,
or operator of any place of public
accommodation may not, “because of the
actual or perceived . . . disability . . . of any
person, directly or indirectly, . . . refuse,
withhold from or deny to such person any of
the accommodations, advantages, facilities
or privileges thereof.” N.Y.C. Admin. Code
§ 8-107(4)(a).
(iii) a refusal to remove architectural
barriers . . . in existing facilities . . .
where such removal is readily
achievable; and
Section 107(15) adds that “any person
prohibited by the provisions of this section
from discriminating on the basis of disability
shall make reasonable accommodation to
enable a person with a disability to . . . enjoy
the right or rights in question provided that
the disability is known or should have been
known by the covered entity.”
Id.
§ 107(15)(a). In the definitional portion of
the NYCHRL, the statute explains that
“‘reasonable accommodation’ means such
accommodation that can be made that shall
not cause undue hardship in the conduct of
the covered entity’s business. The covered
entity shall have the burden of proving
undue hardship.” Id. § 8-102(18) (emphasis
added).
Factors to be considered in
establishing an undue burden include the
cost of the accommodation, the facility’s
(iv) where such person can
demonstrate that the removal of a
barrier under subparagraph (iii) of
this paragraph is not readily
achievable, a failure to make such
facilities, privileges, advantages or
accommodations available through
alternative methods if such methods
are readily achievable.
Id. § 296(2)(c). In order to conclude that a
modification is “readily achievable” under
the NYSHRL, the Court must analyze
(1) the nature and cost of the needed action,
(2) the overall financial and other resources
and size of the facility, and (3) the type of
operation. Id. § 296(2)(d)(i).
7
The relevant portions of the NYSHRL
are interpreted to be similar to those of the
ADA. See Camarillo v. Carrols Corp., 518
F.3d 153, 158 (2d Cir. 2008); Stephens v.
Shuttle Assocs., LLC, 547 F. Supp. 2d 269,
The court in Stephens noted that the NYSHRL and
NYCHRL apply a broader definition of “disability”
than does the ADA. Stephens, 547 F. Supp. 2d at 278
n.3. However, the parties do not dispute that Plaintiff
is disabled within the meaning of the ADA, so this
distinction between the federal law and its state and
local analogs is of no moment here.
14
size and resources, and the type of
operations at the facility. Id.
provisions in the first instance.” Loeffler,
582 F.3d at 278-79.
Although the ADA and the NYCHRL
contain similar language about disability
discrimination, the Second Circuit recently
cautioned that the two are not coextensive.
Loeffler v. Staten Island Univ. Hosp., 582
F.3d 268, 278-79 (2d Cir. 2009). Pursuant
to the Local Civil Rights Restoration Act of
2005, the NYCHRL “shall be construed
liberally for the accomplishment of the
uniquely broad and remedial purposes
thereof, regardless of whether federal or
New York State civil and human rights laws,
including those laws with provisions
comparably-worded to provisions of this
title, have been so construed.” N.Y.C. Local
L. No. 85 § 7 (2005). Accordingly, courts
should view “similarly worded provisions of
federal and state civil rights laws as a floor
below which the City’s Human Rights law
cannot fall.” Id. § 1. As the Appellate
Division, First Department, noted:
The parties have provided no briefing as
to why the standard under the NYCHRL
should be different from that applied under
the ADA for purposes of this action, and the
Court is aware of no facts that would justify
any different result under the NYCHRL.
Accordingly, for the reasons set forth above,
the Court finds that Plaintiff has established
violations of the NYCHRL with respect to
the front step, signage, men’s room grab
bars, and restroom pipe insulation, but not
with respect to Plaintiff’s remaining claims.
3. Damages
Both the NYSHRL and the NYCHRL
provide for compensatory damages for
anyone aggrieved by discriminatory
conduct. The New York Court of Appeals
has held that, in determining damages under
the state human rights law, “[b]eyond the
fact of mental anguish caused by
discriminatory conduct, there must be some
evidence of the magnitude of the injury, to
assure that the Commissioner’s damage
award is neither punitive nor arbitrary.” In
re N.Y.C. Transit Auth. v. State Div. of
Human Rights, 577 N.E.2d 40, 45 (N.Y.
1991).
As a result of [the Restoration Act],
the City HRL now explicitly requires
an independent liberal construction
analysis in all circumstances, even
where state and federal civil rights
laws have comparable language.
The independent analysis must be
targeted to understanding and
fulfilling
what
the
statute
characterizes as the City HRL’s
“uniquely broad and remedial”
purposes, which go beyond those of
counterpart State or federal civil
rights laws.
The New York City Human Rights
Commission has deemed awards of $1,000
to be sufficient in cases where complainants
did not establish any particular damage
“other than what a decent and reasonable
individual would suffer when faced with
such ignorant behavior.” Okoumou v. Cnty.
Recovery Corp., 2009 WL 6910263, at *2
(N.Y.C.Com.Hum.Rts. June 1, 2009); see
also Gardner v. I.J.K. Serv. Inc., 2009 WL
6929883 (N.Y.C.Com.Hum.Rts. Feb. 19,
2009) (similar). Likewise, the Commission
has awarded damages of under $5,000
where the complainant was expressly told
Williams v. N.Y.C. Hous. Auth., 872
N.Y.S.2d 27, 31 (N.Y. App. Div. 2009).
Recognizing that many questions remain as
to how the NYCHRL should be construed,
the Second Circuit “[left] it to the district
court to interpret any specific, applicable
15
Coop.,
Inc.,
1999
WL
156021
(N.Y.C.Com.Hum.Rts. Jan. 12, 1999)
(awarding
$10,000
damages
where
cooperative housing refused for several
years to build ramp for occupant); Torres v.
Prince Mgmt. Corp., 1997 WL 1129224
(N.Y.C.Com.Hum.Rts. Aug. 14, 1997)
(similar).
that the business did not wish to serve
individuals with disabilities.
Peters v.
Cunningham’s Florist, 1993 WL 856502
(N.Y.C.Com.Hum.Rts. Aug. 31, 1993)
(awarding $5,000 where florist told
complainant that wheelchairs were not
allowed in the store); Zgardowski v.
Caprice,
1990
WL
712650
(N.Y.C.Com.Hum.Rts. Oct. 1, 1990)
(awarding $2,500 where store owner told
complainant, who used a wheelchair, to
“[g]et those things out of here”); Figueroa v.
New Yu Lung Corp., 1980 WL 140988
(N.Y.C.Com.Hum.Rts. Dec. 5, 1980)
(awarding $1,200 where restaurant manager
refused to serve complainant because he
used a wheelchair and said disabilities made
patrons uncomfortable). Although Plaintiff
has undoubtedly been harmed by
Defendants’ failure to provide a reasonably
accessible facility, his harm falls far short of
the type of humiliating conduct alleged in
those cases.
Plaintiff has requested $1,000 in
damages. (Compl. ¶ 24.) Although Plaintiff
has not established any particular damages
other than that he feels discriminated against
because he is unable to access the Diner, the
Court finds that such harm warrants
compensation. Still, Defendants’ conduct
here, which might be best characterized as
merely negligent rather than malicious, falls
far short of the typical case for which state
authorities have awarded substantial
damages. Accordingly, the Court awards
$1,000 in damages to Plaintiff, for which
Defendants shall be jointly and severally
liable.
More substantial damages have typically
only
been
warranted
in
extreme
circumstances or where the defendant
refused to remove architectural barriers from
the complainant’s home. See, e.g., Romo v.
ISS Action Sec., 2011 WL 7809919
(N.Y.C.Com.Hum.Rts. June 26, 2011)
(awarding $360 in compensatory damages
and $20,000 for mental anguish where
security guard demanded that complainant
describe his disability and then insulted and
refused to help him because he was HIVpositive); De La Rosa v. Manhattan &
Bronx Surface Transit Operating Auth.,
2005 WL 5632050 (N.Y.C.Com.Hum.Rts.
Mar. 2005) (awarding damages of $10,000
to one plaintiff and $12,000 to another
where bus driver demeaned disabled couple
and refused to assist them in getting off of
the bus, resulting in the couple being trapped
on the bus for three hours and dropped off
miles from their intended location); Comm’n
on Human Rights ex rel. Raymond v. 325
IV. ATTORNEYS’ FEES
Both the ADA and the NYCHRL allow
a prevailing party in an action to recover
reasonable attorneys’ fees, including
litigation expenses and costs. 42 U.S.C.
§ 12205; N.Y.C. Admin. Code § 8-502(f).
Accordingly,
Plaintiff
shall
submit
documentation of attorneys’ fees and costs
incurred, and Defendants shall be jointly and
severally liable for paying those costs and
fees. However, because Plaintiff failed to
carry his burden on a number of claims, the
Court is likely to reduce any award of
attorneys’ fees in light of this mixed verdict.
V. CONCLUSION
For the reasons stated above, the Court
finds that Plaintiff has met his burden with
respect to the step outside of the Diner, the
lack of proper signage, the absence of a rear
16
grab bar in the men's restroom, and the lack
of insulation over the restroom pipes.
Judgment is thus entered in favor of Plaintiff
against Defendants, who shall be jointly and
severally liable, as follows:
SO ORDERED.
RI&5~
United States District Judge
IT IS HEREBY ORDERED THAT
Defendants shall initiate the process for
obtaining a permit to build a permanent
ramp along Second Avenue no later than
October 10, 2012, and shall build a
permanent ramp that complies with ADA
standards within 90 days of the date it
receives the appropriate permits. 8
Dated: September 10, 2012
New York, New York
***
IT IS FURTHER ORDERED THAT
Defendants shall install a rear grab bar in the
men's restroom of the Diner no later than
October 10,2012.
Plaintiff Todd Kreisler is represented by
Adam T. Shore, Esq., Law Offices of Adam
Shore, 100 Park Avenue, Suite 1600, New
York, NY 10017, and Ben-Zion Bradley
Weitz, The Weitz Law Firm, P.A., 18305
Biscayne Boulevard, Aventura, FL 33160.
IT IS FURTHER ORDERED THAT
Defendants shall install insulation over the
pipes under the sinks in both restrooms no
later than October 10, 2012.
Defendants Second Avenue Diner Corp.
and J.J.N.K. Corp. are represented by Paul
Stamatelatos, Esq., 36-19 Broadway, 2nd
Floor, Astoria, NY 11106.
IT IS FURTHER ORDERED TIIAT
Defendants shall post an updated permanent
sign outside of the Diner no later than
October 10, 2012.
USDSSDNY
DOCUMENT
ELECTRONICALLY FILED
DOC#; ____~__- -___
IT IS FURTHER ORDERED THAT
Defendants shall pay Plaintiff $1,000 m
damages no later than October 10,2012.
DATE FILED: q 1I!7DI'7
IT IS FURTHER ORDERED THAT
Plaintiff shall make a submission detailing
the costs and attorney's fees incurred in
connection with this case no later than
October 10, 2012. Defendants' opposition,
if any, is due by November 10, 2012.
Should City authorities refuse to grant the necessary
permits and waivers to build a ramp, Defendants are
free to move to amend or obtain relief from the final
judgment in this case pursuant to Rules 59 or 60 of
the Federal Rules of Civil Procedure.
8
17
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