Sutton v. 626 Emmut Properties, Ltd. et al

Filing 70

OPINION AND ORDER: For the foregoing reasons, Defendants' motions for summary judgment are DENIED. Sutton is directed to file a letter within thirty days of the date of this order, setting out his position on whether, or to what extent, his A DA claim has been rendered moot by the remedial measures Defendants have undertaken. To the extent that Sutton contends that the claim is not moot, he is free to attach updated evidence that demonstrates a continuing dispute of fact as to Defendan ts' complianceor lack of compliancewith the ADA. Defendants shall have fourteen days following the submission of Suttons letter to file any response. The Clerk of Court is directed to close the motions at Docket Numbers 48 and 63. SO ORDERED (Signed by Judge J. Paul Oetken on 8/2/2019) (jca)

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STASON SUTTON,
Plaintiff,
18-CV-90 (JPO)
-vOPINION AND ORDER
626 EMMUT PROPERTIES, LTD. and
10th AVENUE GROUP, INC.,
Defendants.

J. PAUL OETKEN, District Judge:
In this action, Plaintiff Stason Sutton claims that Defendants 626 Emmut Properties, Ltd.
(“626 Emmut”) and 10th Avenue Group, Inc. (“10th Ave.”) have, among other things, violated
the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. § 12101 et seq., by operating or
leasing property to a restaurant that is physically inaccessible to people who use wheelchairs.
The parties have completed discovery, and both Defendants have now separately moved for
summary judgment. (Dkt. Nos. 48, 63.) For the reasons that follow, the motions are denied.
I.

Background
According to the complaint in this action, Defendant 10th Ave. operates a restaurant

called “44 & X” out of a property in Midtown Manhattan that is owned by Defendant 626
Emmut. (Dkt. No. 1 (“Compl.”) ¶¶ 7, 9; see also Dkt. No. 60 (“Sutton Decl.”) ¶ 4.) Plaintiff
Stason Sutton, who lives near the restaurant and who uses a wheelchair for mobility purposes,
claims that he would like to dine at 44 & X. (Sutton Decl. ¶¶ 2–3, 5, 18.) But although Sutton
has been able to utilize the restaurant’s outdoor dining area, he maintains that an exterior step has
prevented him from accessing the restaurant’s interior. (Sutton Decl. ¶¶ 8–11.)
On January 5, 2018, Sutton filed a five-count civil complaint against Defendants, alleging
that 44 & X’s exterior step and a number of its interior features render the restaurant inaccessible

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to him and to other individuals who use wheelchairs. (Compl. ¶ 25.) According to Sutton, this
inaccessibility puts Defendants in violation of the ADA, New York common law, and various
state and local antidiscrimination laws. (Compl. ¶¶ 36–90.) In addition to seeking injunctive
relief, declaratory relief, and attorney’s fees and costs under both the ADA and state and local
law, Sutton seeks monetary damages under state and local law alone. (Compl. at 19–20.)
Discovery in this case ended on November 30, 2018 (Dkt. No. 35), and both Defendants
have now moved for summary judgment (Dkt. Nos. 48, 63). Defendants first train their fire on
Sutton’s ADA claim, arguing that this Court must dismiss it on the grounds that (1) Sutton lacks
standing to bring the claim (Dkt. No. 50 at 3–5; Dkt. No. 65 at 3–5), and (2) renovations at
44 & X have mooted the claim by adequately remediating the alleged access barriers (Dkt. No.
68 at 2–6; Dkt. No. 69 at 3–8). Once Sutton’s sole federal claim has been dismissed, Defendants
go on, the Court should end this case entirely by declining to retain supplemental jurisdiction
over his remaining state- and local-law claims. (Dkt. No. 50 at 6; Dkt. No. 65 at 6.)
Defendants’ summary judgment motions have been fully briefed (Dkt. Nos. 50, 58, 65,
68–69), and the Court now turns to their merits.
II.

Legal Standard
A party is entitled to summary judgment if it can “show[] that there is no genuine dispute

as to any material fact and [it] is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a).
A dispute of fact is “genuine” if “the evidence is such that a reasonable jury could return a
verdict for the nonmoving party,” and a fact is “material” if “it might affect the outcome of the
suit under the governing law.” Hurley v. Tozzer, Ltd., No. 15 Civ. 2785, 2018 WL 1087946, at
*1 (S.D.N.Y. Feb. 26, 2018) (quoting Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002)). The
party moving for summary judgment bears the burden of showing that no genuine dispute of
material fact exists, id., and in assessing whether the movant has carried this burden, a court
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“must view the evidence in the light most favorable to the party against whom summary
judgment is sought and must draw all reasonable inferences in his or her favor,” Access 4 All,
Inc. v. Trump Int’l Hotel & Tower Condominium, 458 F. Supp. 2d 160, 166 (S.D.N.Y. 2006).
III.

Discussion
As noted above, Defendants argue that they are entitled to summary judgment on

Sutton’s ADA claim, and that this Court should decline to exercise supplemental jurisdiction
over Sutton’s remaining claims once that federal claim is out of the picture. Because Sutton
makes no argument that this Court should retain jurisdiction over his state- and local-law claims
in the absence of a viable federal claim, the Court limits its analysis to Sutton’s ADA claim.
Defendants raise two arguments as to why, in their view, they are entitled to summary
judgment on Sutton’s ADA claim. First, they argue that Sutton lacks standing to bring that
claim. (Dkt. No. 50 at 3–5; Dkt. No. 65 at 3–5.) Second, they argue that the claim is moot.
(Dkt. No. 68 at 2–6; Dkt. No. 69 at 3–8.) The Court addresses each argument in turn. 1
A.

Standing

A plaintiff who seeks to invoke the jurisdiction of the federal courts must be able to
establish the “irreducible constitutional minimum of standing.” Field Day, LLC v. Cty. of
Suffolk, 463 F.3d 167, 175 (2d Cir. 2006) (quoting Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992)). To make this showing, “a plaintiff must prove: (1) injury in fact, which must be
(a) concrete and particularized, and (b) actual or imminent; (2) a causal connection between the

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The Court also acknowledges Sutton’s argument that certain declarations submitted
with Defendants’ summary judgment motions should not be considered. (Dkt. No. 58 at 2–3.)
Because the Court concludes that consideration of the challenged declarations would not affect
its resolution of any issue presented by the motions, the Court need not address the matter.

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injury and the defendant’s conduct; and (3) that the injury is likely to be redressed by a favorable
decision.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013) (per curiam).
Defendants argue that Sutton has failed to demonstrate that he has standing to bring his
ADA claim because he has failed to show that he has been injured by the architectural barriers
that, he claims, violate the statute. (Dkt. No. 50 at 3–5; Dkt. No. 65 at 3–5.) Instead, Defendants
maintain, Sutton has merely “stat[ed] a list of alleged ADA violations at the restaurant” without
offering evidence that any of them impeded his own access. (Dkt. No. 50 at 4; Dkt. No. 65 at 4.)
Defendants’ standing argument is foreclosed by the Second Circuit’s decision in Kreisler
v. Second Avenue Diner Corp., 731 F.3d 184 (2d Cir. 2013). In that case, the Second Circuit
held that an ADA plaintiff had standing to bring suit against an allegedly inaccessible diner
where he testified that “(1) [a] seven to eight-inch step deterred him from attempting to enter,
(2) he frequent[ed] diners in his neighborhood often, (3) he live[d] within several blocks of the
[d]iner, and (4) he would like to frequent the [d]iner if he were able to access it.” Id. at 188.
Even though the Kreisler plaintiff, having been unable to enter the diner in the first place, had
not personally encountered any of the diner’s alleged interior architectural barriers, the Second
Circuit further held that “because [the plaintiff] ha[d] standing to pursue injunctive relief as to
the [d]iner’s entrance, he ha[d] standing to seek removal of all barriers inside the [d]iner related
to his disability that he would likely encounter were he able to access the [d]iner.” Id.
Kreisler controls here. 2 Just like the Kreisler plaintiff, Sutton has testified that he has
been unable to enter an establishment due to an exterior step, that he often dines at restaurants

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Insofar as Defendants intend to suggest that the Supreme Court’s post-Kreisler decision
in Spokeo, Inc. v. Robins, 136 S. Ct. 1540 (2016), should govern this Court’s analysis, “this
Court is required to follow Second Circuit precedent ‘unless and until it is overruled in a
precedential opinion by the Second Circuit itself or unless a subsequent decision of the Supreme
Court so undermines it that it will almost inevitably be overruled by the Second Circuit,’” Boone
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near the establishment, that the establishment is in his neighborhood, and that he would visit the
establishment if it were accessible. (Sutton Decl. ¶¶ 5–11, 18.) As the Second Circuit has made
clear, this testimony is sufficient at the summary judgment stage to establish Sutton’s standing to
seek injunctive relief under the ADA with respect to all architectural access barriers, exterior and
interior, at the establishment he wishes to frequent. 3
B.

Mootness

The federal courts lack jurisdiction to adjudicate a case that has become moot. See Atl.
States Legal Foundation, Inc. v. Norton, 29 F. App’x 729, 731 (2d Cir. 2002) (summary order).
And a case has become moot if it “is no longer embedded in any actual controversy about the
plaintiffs’ particular legal rights,” Already, LLC v. Nike, Inc., 568 U.S. 85, 91 (2013) (quoting
Alvarez v. Smith, 558 U.S. 87, 93 (2009)), whether because “a court is powerless to ‘grant any
effectual relief whatever to the prevailing party’” or because “intervening circumstances during
the litigation [have] remove[d] a party’s interest in its outcome,” Bellino v. JPMorgan Chase
Bank, N.A., No. 14 Civ. 3139, 2015 WL 4006242, at *2 (S.D.N.Y. June 29, 2015) (quoting
Chafin v. Chafin, 568 U.S. 165, 172 (2013)). But “[a]s long as the parties have a concrete

v. United States, No. 13 Civ. 8603, 2017 WL 398386, at *1 (S.D.N.Y. Jan. 30, 2017) (quoting
United States v. Diaz, 122 F. Supp. 3d 165, 179 (S.D.N.Y. 2015)). Defendants’ unelaborated
citations to Spokeo (Dkt. No. 50 at 4; Dkt. No. 65 at 4) give the Court no reason to believe that
Spokeo has so undermined Kreisler that the latter no longer stands as binding precedent.
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To the extent Defendants suggest that remedial efforts they have made at the premises
of 44 & X after this suit was filed have stripped Sutton of standing by adequately redressing his
claimed injury (see Dkt. No. 68 at 5–6; Dkt. No. 69 at 7–8), the suggestion is misguided. A
plaintiff’s standing is “assessed as of the time the lawsuit is brought.” Baur v. Veneman, 352
F.3d 625, 637 n.11 (2d Cir. 2003) (quoting Comer v. Cisneros, 37 F.3d 775, 787 (2d Cir. 1994)).
Subsequent events that might eliminate the existence of a live controversy are assessed under the
rubric of mootness. See Altman v. Bedford Cent. Sch. Dist., 245 F.3d 49, 70 (2d Cir. 2001). The
Court therefore addresses the effects of Defendants’ remedial efforts in its discussion of
Defendants’ arguments that Sutton’s ADA claim is moot. See infra Section III.B.

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interest, however small, in the outcome of the litigation, the case is not moot.” Chafin, 568 U.S.
at 172 (quoting Knox v. Serv. Emps. Int’l Union, Local 1000, 567 U.S. 298, 307–08 (2012)).
Because an ADA plaintiff who, like Sutton, raises a claim based on an architectural
access barrier is limited to seeking equitable relief, rather than money damages, such a claim
“can become moot if a defendant remedies the access barrier [at issue] during the pendency of
the litigation.” Bacon v. Walgreen Co., 91 F. Supp. 3d 446, 451 (E.D.N.Y. 2015). But such
remediation moots an ADA claim “only if the defendant can demonstrate that (1) there is no
reasonable expectation that the alleged violation will recur and (2) interim relief or events have
completely and irrevocably eradicated the effects of the alleged violation.” Thomas v. West, No.
14 Civ. 4459, 2018 WL 3768525, at *3 (S.D.N.Y. Aug. 8, 2018) (quoting Clear Channel
Outdoor, Inc. v. City of New York, 594 F.3d 94, 110 (2d Cir. 2010)). In most cases, “physical
alterations” made to bring a building into ADA compliance are the sort of remedial efforts that
will moot a claim for injunctive relief under the ADA because “[o]nce a defendant embarks on
construction to bring its building into compliance, it would be illogical to assume a defendant
would expend further funds to reverse the remediation, remove itself from compliance with the
ADA, and expose itself to further litigation.” Id. at *4.
Here, Defendants contend that remedial efforts they have made at 44 & X have mooted
Sutton’s ADA claim. (Dkt. No. 65 at 7; Dkt. No. 68 at 2–6; Dkt. No. 69 at 3–8.) For one thing,
they maintain that they have installed a permanent ramp that will enable Sutton to enter the
restaurant’s interior and that this renovation alone moots Sutton’s ADA claim because it
remedies the only access barrier—i.e., 44 & X’s exterior step—that Sutton is alleged to have
personally encountered. (Dkt. No. 68 at 2–6.) But even beyond the ramp, Defendants go on,
they have undertaken “additional adjustments” to make “[t]he restaurant and its upstairs

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bathroom . . . fully accessible to all with physical handicaps and disabilities.” (Dkt. No. 65 at 7.)
And in the view of Defendants’ expert, those adjustments—along with a few additional measures
that Defendants “will be accomplishing . . . immediately” (Dkt. No. 69 at 3)—fully
“accomplish[] the goal of responding to the issues raised in this lawsuit” (Dkt. No. 69-2 ¶ 10).
As for Defendants’ first argument—that the installation of the ramp is alone sufficient to
moot Sutton’s ADA claim—it fails. Under the Kreisler decision, an ADA plaintiff who
otherwise has standing may “seek removal of all barriers inside [an establishment] related to his
disability that he would likely encounter were he able to access the [establishment],” even if he
has not personally encountered those barriers. Kreisler, 731 F.3d at 188. Even assuming, then,
that Defendants have fully remediated the exterior step that allegedly barred Sutton’s access to
44 & X, Sutton has “a concrete interest . . . in the outcome of the litigation” as long as alleged
interior barriers remain. Chafin, 568 U.S. at 172 (quoting Knox, 567 U.S. at 307–08).
The Court therefore turns next to Defendants’ claim that 44 & X is indeed now “fully
accessible,” inside and out, “to all with physical handicaps and disabilities.” (Dkt. No. 65 at 7.)
The problem with this claim is that Defendants have failed to offer evidence sufficient to
establish that no genuine factual dispute exists as to whether the ADA violations Sutton has
catalogued in his expert report have been fully remediated. (See Dkt. No. 57-1.) Along with
their summary judgment motions, Defendants initially submitted only two relevant pieces of
evidence. First, they filed an affidavit from a principal of 10th Ave., which explained in general
terms that Defendants have, for example, “made changes to the bathroom and its entrance on the
main floor so that there is easier access” (Dkt. No. 64-4 ¶ 5) and “adjusted the hallway leading to
the bathroom to widen it” (Dkt. No. 64-4 ¶ 7). Second, Defendants filed a series of photographs
of the asserted renovations. (Dkt. No. 64-5.) But notwithstanding the fact that Defendants may

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have made “laudable efforts to remedy the deficiencies on [their] property . . . , at considerable
expense,” vague statements about increased accessibility, taken together with photographs that
lack context or precise measurements, are insufficient to resolve all “genuine issues of material
fact about each barrier’s compliance with the ADA.” Brown v. Mermaid Plaza Assocs. LLC, No.
13 Civ. 760, 2018 WL 2722454, at *8 (E.D.N.Y. Mar. 8, 2018).
To be sure, Defendants have now submitted a detailed expert report and declaration with
their reply briefs. (Dkt. Nos. 69-1, 69-2.) But “[c]ourts in this District have frequently declined
to consider evidence first submitted on reply.” Port Auth. Police Benevolent Ass’n, Inc. v. Port
Auth. of N.Y. & N.J., No. 15 Civ. 3526, 2016 WL 6083956, at *4 n.3 (S.D.N.Y. Oct. 17, 2016).
And this Court is inclined to follow that practice here, for obvious reasons: By waiting until the
last minute to play their full hand, Defendants have effectively deprived Sutton of the chance to
respond to their best evidence of mootness. The Court declines to dismiss Sutton’s ADA claim
on the basis of evidence that Sutton has not yet been afforded the opportunity to answer.
That said, because Defendants’ expert report and declaration raise serious questions about
this Court’s jurisdiction to adjudicate Sutton’s ADA claim, that evidence cannot be disregarded.
While the Court cannot conclude on the present record that Defendants are entitled to summary
judgment, the Court will direct Sutton to indicate, in light of the evidence Defendants have
submitted with their reply briefs, what aspects of his ADA claim—if any—remain contested.
IV.

Conclusion
For the foregoing reasons, Defendants’ motions for summary judgment are DENIED.

Sutton is directed to file a letter within thirty days of the date of this order, setting out his
position on whether, or to what extent, his ADA claim has been rendered moot by the remedial
measures Defendants have undertaken. To the extent that Sutton contends that the claim is not

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moot, he is free to attach updated evidence that demonstrates a continuing dispute of fact as to
Defendants’ compliance—or lack of compliance—with the ADA.
Defendants shall have fourteen days following the submission of Sutton’s letter to file
any response.
The Clerk of Court is directed to close the motions at Docket Numbers 48 and 63.
SO ORDERED.
Dated: August 2, 2019
New York, New York
____________________________________
J. PAUL OETKEN
United States District Judge

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