Figueroa v. Hasaki Restaurant, Inc., et al.

Filing 20

OPINION re: 16 FIRST LETTER MOTION for Conference addressed to Judge Robert W. Sweet from Stuart H. Finkelstein dated 11-1-17 filed by Jose Figueroa. Plaintiff has moved by letter and pursuant to Federal Rule of Civil Procedure 12(f ) to strike the affirmative defenses set forth in the Defendants' answer ("Answer") to the Plaintiff's complaint ("Complaint"). (As further set forth in this Order.) For the foregoing reasons, the Plaintiff's motion to strike the Defendants' affirmative defenses is granted. Defendants are granted leave to replead within twenty (20) days. (Signed by Judge Robert W. Sweet on 1/29/2018) (cf)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
----------------------------------x

JOSE FIGUEROA,
Plaintiff,

17 Civ. 6521

-againstHASAKI RESTAURANT,
SHU JI YAGI,

OPINION
INC., and

Defendants.
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APPEARANCES:
Attorneys for Plaintiff
FINKELSTEIN
338 Jericho
Syosset, NY
By:
Stuart

LAW GROUP, PLLC
Turnpike
11791
H. Finkelstein, Esq.

Attorneys for Defendants
PECHMAN LAW GROUP, PLLC
488 Madison Avenue
New York, NY 10022
By:
Louis Pechman, Esq.

1

,

Sweet, D.J.

Plaintiff Jose Figueroa ("Figueroa" or the
"Plaintiff") brings this action against defendants Hasaki
Restaurant, Inc.

( "Hasaki Rest.") and Shuj i Yagi

("Yagi")

(collectively, the "Defendants") for alleged violations of the
Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et
seq., the New York State Human Rights Law ("NYSHRL"), N.Y. Exec.

Law§§ 290, et seq., and the New York City Human Rights Law
("NYCHRL"), N.Y.C. Admin. Code§§ 8-101, et seq. Plaintiff has
moved by letter and pursuant to Federal Rule of Civil Procedure
12(f) to strike the affirmative defenses set forth in the
Defendants' answer ("Answer") to the Plaintiff's complaint
("Complaint"). Based on the facts and conclusions set forth
below, the Plaintiff's motion to strike is granted.

I.

Facts

&

Prior Proceedings

Plaintiff commenced this action on August 27, 2017,
alleging violations of the ADA,

42 U.S.C. § 12181, et seq., the

NYSHRL, N.Y. Exec. Law. §§ 290, et seq., and the NYCHRL, N.Y.C.
Admin. Code§§ 8-101, and seeking injunctive relief and
attorney's fees and costs, as set forth in the Complaint and

2

below. The instant motion was filed on November 1, 2017, and was
argued and marked fully submitted on November 29, 2017.

The Complaint sets forth the following facts, which
are assumed true for the purpose of this motion.
Christie's Int'l PLC,

See Koch v.

699 F.3d 141, 145 (2d Cir. 2012).

At the time of the events relevant to this action,
Plaintiff was a resident of the state of New York, and suffered
from spinal stenosis, a disability that causes a restriction of
the spinal canal and results in neurological deficits. Compl.

~

4. Spinal stenosis constitutes a "qualified disability" under
the ADA.

Id.

Defendants own and run the business of Hasaki
Restaurant, located at 210 East 9 th Street, New York, NY 10003
(the "Restaurant"), which, Plaintiff alleges is "a place of
public accommodation" pursuant to the ADA,

42 U.S.C. § 12181(7),

and 28 C.F.R. § 36.104 because it is a restaurant that provides
good and services to the public.

Id.

~~

6, 11. Plaintiff alleges

that the Restaurant has begun operations, and/or undergone
substantial remodeling, repairs and/or alterations since January
26, 1990, and/or has sufficient income to make readily
achievable accessibility modifications.
3

Id.

~

12.

Plaintiff alleges that he personally visited the
Restaurant with the intention of using the Defendants'
facilities, but was denied access due to his disability.

Id.

~

14. Plaintiff also alleges that he maintains the intention of
visiting the Restaurant in the future.

Id. The barriers to

access the Restaurant have effectively denied Plaintiff's
ability to visit the property, and have caused him embarrassment
and frustration.

Id.

Moreover, Plaintiff alleges, inter alia, the following
specific violations of the ADA and 28 C.F.R. § 36.302, et seq.
by the Restaurant:

(1)

failure to provide an accessible entrance

due to multiple steps, and failure to install ramps with
appropriate slope and signage, and/or otherwise provide an
accessible and properly designated entrance;

(2)

failure to

provide required minimum maneuvering clearance at the entrance
door, failure to provide accessible aisles of at least 36 inches
clearance between parallel edges of tables or between a wall and
the table edges to all accessible tables, and failure to provide
an accessible pathway of at least 36 inches of width in front of
the restroom area;

(3)

failure to provide accessible dining

tables with a minimum knee and toe clearance; and (4)

failure to

provide sufficient turning radius for accessible patrons in the
restroom, a clear path to the water closet, accessible restroom
4

door handle and lock,

a grab bar in restroom,

a hand-operated

flush control located on the open side of the accessible water
closet, at least 17 inches depth clearance under lavatories, and
accessible paper towel and soap dispensers,
in restroom.

as well as a mirror

Id. i 16 & Ex. 1.

Defendants assert twenty-three affirmative defenses in
their Answer to the Complaint. Plaintiff contests Defendants'
first and eighth affirmative defenses, which in their entirety
provide, respectively, that the "Complaint fails to state a
claim upon which relief can be granted," Answer i

36, and

"Plaintiff's claims are barred because the barrier removal(s)
Plaintiff seeks pursuant to the ADA in a restaurant built before
January 26, 1993, are not

'readily achievable'

or easily

accomplishable within the meaning of 42 U.S.C. § 12181(9) ," id.

i 43.

II.

The Applicable Standard

Pursuant to Rule 12(f), "[t]he court may strike from a
pleading an insufficient defense or any redundant,
impertinent, or scandalous matter." Fed. R. Civ.

immaterial,

P. 12(f).

"'Immaterial' matter is that which has no essential or important
relationship to the claim for relief, and 'impertinent' material
5

consists of statements that do not pertain to, and are not
necessary to resolve, the disputed issues." Brady v. Basic
Research, L.L.C., 101 F. Supp. 3d 217, 225 (E.D.N.Y. 2015)
(internal citation and quotation omitted). "Motions to strike
are generally disfavored and will not be granted 'unless it
appears to a certainty that plaintiffs would succeed despite any
state of the facts which could be proved in support of the
defense.'" Coach, Inc. v. Kmart Corps., 756 F. Supp. 2d 421, 425
(S.D.N.Y. 2010)

(quoting Salver v. Envicon Equities Corp.,

744

F.2d 935, 939 (2d Cir. 1984), vacated and remanded on other
grounds, 478 U.S. 1015 (1986))

(internal quotations and

citations omitted).

To succeed on a motion to strike, "the movant must
demonstrate all of the following

(1) that no evidence in

support of the allegation would be admissible;

(2) that the

allegations have no bearing on the issues in the case; and (3)
that to permit the allegations to stand would result in
prejudice to the movant." Koch v. Dwyer, No. 98 Civ. 5519 (RPP),
2000 WL 1458803, at *l (S.D.N.Y. Sept. 29, 2000). "In
considering the sufficiency of a defense under the first two
prongs of the analysis, courts apply the same standard
applicable to a motion to dismiss pursuant to Rule 12(b) (6) of
the Federal Rules of Civil Procedure." Coach, Inc. v. Kmart
6

Corps., 756 F. Supp. 2d 421, 425

(S.D.N.Y. 2010). As such, as to

these two prongs, "the Court ordinarily accepts as true all
well-pleaded factual allegations and draws all reasonable
inferences in the plaintiff's favor." Id.

(citing Levy v.

Southbrook Int'l Invs., Ltd., 263 F.3d 10, 14

(2d Cir. 2001))

(internal citation omitted). Moreover, "[t]he sufficiency of a
defense is to be determined solely upon the face of the
pleading," Houston v. Manheim-New York, No. 09 Civ. 4544
(SCR) (GAY), 2010 WL 744119, at *3 (S.D.N.Y. Mar. 3, 2010), and
the court must construe "the pleadings liberally to give the
defendant a full opportunity to support its claims at trial,
after full discovery has been made." S.E.C. v. Mccaskey,

56 F.

Supp. 2d 323, 326 (S.D.N.Y. 1999).

"[C]onclusory assertions, absent any supporting
factual allegations are insufficient as a matter of law and fail
to provide a plaintiff with any notice as to how the defense
applies to the plaintiff's claims." Coach, Inc. v. Kmart Corps.,
756 F. Supp. 2d at 425. If a defense is found by a court to be
legally insufficient, "the court must next determine whether
inclusion of the defense would prejudice the plaintiff." Id.
(noting that "[i]ncreased time and expense of trial may
constitute sufficient prejudice to warrant striking an
affirmative defense.").
7

III. The Plaintiff's Motion is Granted

Defendants' first affirmative defense alleges that
"[t]he Complaint fails to state a claim upon which relief can be
granted." Compl. 1 36. Absent more, this defense is nothing more
than a conclusory assertion, and therefore is stricken from the
Answer.

The eighth affirmative defense alleges, without
further support, that "Plaintiff's claims are barred because the
barrier removal(s) Plaintiff seeks

. are not 'readily

achievable' or easily accomplishable." Id. 1 43. Defendants have
not alleged any facts upon which this conclusion may be reached,
so this defense is similarly stricken.

8

.

IV.

Conclusion

For the foregoing reasons, the Plaintiff's motion to
strike the Defendants' affirmative defenses is granted.
Defendants are granted leave to replead within twenty (20) days.

It is so ordered.

~t

New York, NY
January
2018

7
ROBERT W. SWEET
U.S.D.J.

9