Nachshen v. 53-00055 West 21ST Owner LLC et al

Filing 56

ORDER granting 55 Letter Motion to Adjourn Conference. Counsel for Plaintiff shall advise the Court within 90 days as to the status of appointment of an executor for the estate. (Signed by Magistrate Judge Katharine H. Parker on 2/18/2021) (mro)

Case 1:19-cv-01903-RA-KHP Document 55 Filed 02/18/21 Page 1 of 2
56

02/18/2021

Jennifer E. Sherven, Esq.
[e-mail]
Taylor M. Ferris, Esq.
[e-mail]

VIA ECF
The Honorable Katharine H. Parker
United States District Court
Southern District of New York
40 Foley Square
New York, New York 10007
Re:

February 18, 2021
Counsel for Plaintiff shall advise the Court within
90 days as to the status of appointment of an
executor for the estate.

02/18/2021

Nachshen v. 53-55 West 21st Owner LLC., et al., 19-cv-01903(RA)(KHP)

Dear Judge Parker:
This letter is being jointly submitted to respectfully respond to the Court’s February 12,
2021 Order directing the Parties to notify the Court whether they would like to proceed with the
settlement conference scheduled for February 22, 2021, or whether they would like to adjourn the
conference sine die until a representative for Plaintiff’s estate is appointed. See Dkt. No. 54. Given
the unfortunate circumstances, the Parties jointly request that the settlement conference be
adjourned sine die.
Additionally, Defendants, 53-55 West 21st Owner LLC and New Lounge 4323, LLC
(“Defendants”), note that in the event Plaintiff’s counsel locates a representative for Plaintiff’s
estate and notifies the Court of their intention to continue litigation of these claims, Defendants
will evaluate at that time whether to move for Plaintiff’s complaint to be dismissed in its entirety.
The basis for Defendants’ potential application is set forth herein. In his Complaint, Plaintiff
alleges that the property at issue violates Title III of the Americans with Disabilities Act, 42 U.S.C.
§ 12181, et seq. (“Title III”), the New York State Human Rights Law, Executive Law § 296 et seq.
(“NYSHRL”), the New York City Human Rights Law, NYC Administrative Code § 8-107 et seq.
(“NYCHRL”), the New York Civil Rights Law (“NYCRL”), and New York common law
negligence. On February 1, 2021, Plaintiff’s counsel filed a suggestion of death notice requesting
a stay of this action and for Plaintiff’s counsel to submit a status letter to the Court by April 30,
2021 concerning the appointment of a representative of Plaintiff’s estate, which the Court granted.
See Dkt. Nos. 52 and 53. However, pursuant to Rule 25(a) of the Federal Rules of Civil Procedure,
Plaintiff’s Title III claims must be dismissed as moot, as there can be no adequate representative
to replace Plaintiff. Indeed, it is well settled that claims under Title III do not survive a plaintiff’s
death. To establish standing for injunctive relief under the Title III, plaintiffs must not only allege
a past injury, but also the risk of a future injury. See City of Los Angeles v. Lyons, 461 U.S. 95
(1983). Where a plaintiff cannot show future injury, there is no standing and thus Title III claims

Case 1:19-cv-01903-RA-KHP Document 55 Filed 02/18/21 Page 2 of 2
56
Hon. Katharine H. Parker
February 18, 2021
Page 2 of 2
seeking an injunction must be dismissed. Id. Applying the Lyons standard, courts have found that
Title III claims seeking injunctive relief do not survive plaintiff’s death. See Kahn v. NYU Medical
Center, 2007 WL 2000072 (S.D.N.Y. July 10, 2007) citing Plumley v. Landmark Chevrolet, Inc.,
122 F.3d 308, 312 (5th Cir. 1997). Furthermore, as Plaintiff’s claims under Title III are moot, and
no federal claims remain, Defendants will also evaluate an application seeking that the Court
decline to extend supplemental jurisdiction and dismiss Plaintiff’s claims alleging violations of the
NYSHRL, the NYCHRL, the NYCRL, and New York common law.
We thank the Court for its time and consideration of this joint request that the settlement
conference be adjourned sine die.
Respectfully submitted,

_________________________
Jennifer E. Sherven
Taylor M. Ferris
KAUFMAN DOLOWICH VOLUCK, LLP
Attorneys for Defendant New Lounge 4324,
LLC
135 Crossways Park Drive, Suite 201
Woodbury, New York 11797
____/s/_____________________
Glen Parker
PARKER HANSKI LLC
Attorneys for Plaintiff
40 Worth Street, 10th Floor
New York, New York 10013
CC:

All Counsel via ECF

4815-4090-6717, v. 1

____/s/_____________________

Michael Lowe
LIPSKY BRESKY & LOWE LLP
Attorneys for Defendant 53-55 West 21st
Street Owner LLC
585 Stewart Avenue, Suite 306
Garden City, New York 11530