Gannon v. 31 Essex Street LLC et al

Filing 35

OPINION AND ORDER: re: 29 MOTION to Dismiss Pursuant to FRCP 12 (b) (6) for failure to state a claim upon which relief may be granted filed by 31 Essex Street LLC. For the foregoing reasons, Essex Street's motion to dismiss is GRANTED. Gannon is granted leave to file an amended complaint, if at all, by February 17, 2023. Failure to do so will result in the dismissal of the claims against Essex Street. The Clerk of Court is respectfully directed to terminate the motion, Doc. 29. IT IS SO ORDERED., ( Amended Pleadings due by 2/17/2023.) (Signed by Judge Edgardo Ramos on 1/17/2023) (ama)

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
STEPHEN GANNON, individually and
on behalf of all others similarly situated
Plaintiff,
– against –
31 ESSEX STREET LLC, PARTY BUS
BAKESHOP LLC, JOHN DOE 1-X,
persons yet unknown, limited liability
companies, partnerships, and
CORPORATIONS 1-X, entities yet
unknown,

OPINION & ORDER
22-cv-1134 (ER)

Defendants.
RAMOS, D.J.:
Stephen Gannon, who uses a wheelchair for mobility, brings this suit alleging
denial of full and equal access to a property owned by 31 Essex Street LLC (“Essex
Street”) and leased by Party Bus Bakeshop LLC (“Party Bus”), in violation of federal and
state law. Doc. 1 ¶¶ 1–2, 7–8. 1 Before the Court is Essex Street’s motion to dismiss for
lack of subject matter jurisdiction and failure to state a claim upon which relief can be
granted. Doc. 31 at 5.
For the reasons set forth below, the motion is GRANTED.
I.

BACKGROUND
Gannon, a resident of New York County, was diagnosed with metatarsal

osteomyelitis of the right foot in 2017. Doc. 1 ¶¶ 4, 46. To stop this infection from
spreading, his right leg was amputated just below the knee in 2019. Id. ¶ 46. Since the
amputation, Gannon has used a manually-powered wheelchair. Id.
On February 9, 2022, Gannon, after being unable to gain access to a property
owned by Essex Street and leased by Party Bus (“the property”), filed the instant
Gannon also names John Doe 1-X and Corporations 1-X as defendants who remain unknown but may
share liability. Id. ¶ 12.
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complaint for violations of the Americans with Disabilities Act, 42 U.S.C. § 12188, et
seq. (“ADA”). Id. ¶¶ 1–2, 7–9. 2
�e property is a six-story building at 31 Essex Street. Id. ¶¶ 7, 48. Party Bus
operates a bakeshop out of the property’s first floor. Doc. 30 ¶ 8. Gannon alleges that the
property violates the ADA because the steps leading into the bakeshop make it
inaccessible to individuals who, like himself, use wheelchairs. Doc. 1 ¶¶ 1–2, 51. �e
entranceway contains a single eight-inch step to the door threshold, followed by a small
interior platform. Id. ¶¶ 49–50; Doc. 30-6 at 2–3. �ere are two more eight-inch steps
leading into the main floor of the bakeshop where the store counter and seating area is
located. Doc. 1 ¶¶ 49–50; Doc. 30-6 at 2–3. �ere is no permanent ramp that provides
access to the bakeshop. Doc. 1 ¶¶ 49, 53. However, at the time the complaint was filed,
there was a portable ramp at the property along with signage and a buzzer system to assist
handicapped individuals wishing to enter the bakeshop. Doc. 30 ¶ 9; Doc. 30-6 at 4–5.
In his complaint, Gannon claims that he “has experienced difficulty gaining
access” to the property and “continues to be discriminated against due to the architectural
barriers” created by the entranceway steps. Doc. 1 ¶¶ 54, 56. �e steps, according to
Gannon, “have effectively denied [him] the ability to visit the property.” Id. ¶ 57. He
asserts that this denial will continue to harm him and other mobility-impaired individuals
until the steps are removed. Id. ¶ 61. Accordingly, he claims that Essex Street and Party
Bus are unlawfully discriminating against him and others similarly situated in violation of
the ADA. Id. ¶¶ 1–2.
On June 17, 2022, Essex Street filed a motion to dismiss the complaint for failure
to state a claim upon which relief can be granted and for failure to establish standing
Gannon further alleges that the property violates the Americans with Disabilities Act’s Accessibility
Guidelines (“ADAAG”), 28 CFR Part 36, subpart D, the 2004 ADA Accessibility Guidelines at 36 CFR
Part 1191, appendices B and D, the 2010 ADA Standards for Accessible Design (“2010 Standards”), the
Building Code of the State of New York, the N.Y. Civil Rights Law § 40, et seq. (“NYSCRL”), the N.Y.
Exec. Law § 296, et seq. (“NYSHRL”), and the N.Y.C. Admin. Code § 8-107, et seq. (“NYCHRL”). Id.
¶ 2.
2

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under Rule 12(b)(6). 3 Doc. 31 at 5. As relevant to the analysis, Gannon and his attorney
have filed twenty-six cases, including this one, in the Southern District of New York since
January 14, 2022, each similarly alleging ADA violations by properties in this District.
Doc. 30-1.
II.

LEGAL STANDARD
Although Essex Street only moved to dismiss under Rule 12(b)(6), the Court’s

consideration of a motion to dismiss for lack of standing is properly considered under
Rule 12(b)(1). Fed. R. Civ. Pro. 12(b)(1); see, e.g., Gonzalez v. Inn on the Hudson LLC,
No. 20 Civ. 9196 (ER), 2022 WL 974384 (S.D.N.Y. Mar. 30, 2022) (evaluating the
defendant’s motion to dismiss for lack of standing under Fed. R. Civ. Pro. 12(b)(1)).
When the issue before the Court involves a motion to dismiss pursuant to Rules
12(b)(1) and 12(b)(6), the Court must consider the Rule 12(b)(1) motion first because
“disposition of a Rule 12(b)(6) motion is a decision on the merits, and therefore, an
exercise of jurisdiction.” Chambers v. Wright, No. 5 Civ. 9915 (WHP), 2007 WL
4462181, at *2 (S.D.N.Y. Dec. 19, 2007) (internal quotation marks and citation omitted);
see also Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 820 F. Supp. 2d 490, 499
(S.D.N.Y. 2011), aff’d, 496 F. App’x 131 (2d Cir. 2012).
Pursuant to Rule 12(b)(1), the Court must dismiss a case for lack of subject matter
jurisdiction if the Court “lacks the statutory or constitutional power to adjudicate it.”
Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000) (citing Fed. R. Civ. P.
12(b)(1)). �e party asserting subject matter jurisdiction bears the burden of establishing
that jurisdiction exists by a preponderance of the evidence. Morrison v. Nat’l Australia
Bank Ltd., 547 F.3d 167, 170 (2d Cir. 2008) (quoting Makarova, 201 F.3d at 113). �e
Court accepts all material factual allegations in the complaint as true, id. (quoting Nat.
Res. Def. Council v. Johnson, 461 F.3d 164, 171 (2d Cir. 2006)), but it does not presume
As explained below, a motion to dismiss for failure to establish standing is properly considered under Rule
12(b)(1), not 12(b)(6).
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the truthfulness of the complaint’s jurisdictional allegations, Frisone v. Pepsico, Inc., 369
F. Supp. 2d 464, 469–70 (S.D.N.Y. 2005) (quoting Augienello v. Fed. Deposit Ins. Corp.,
310 F. Supp. 2d 582, 588 (S.D.N.Y. 2004)). When evaluating a Rule 12(b)(1) motion, the
Court may consider evidence outside of the pleadings to resolve the disputed
jurisdictional fact issues. Zappia Middle E. Constr. Co. Ltd. v. Emirate of Abu Dhabi,
215 F.3d 247, 253 (2d Cir. 2000); see also Morrison, 547 F.3d at 170 (citing Makarova,
201 F.3d at 113). However, the Court should refrain from drawing inferences in favor of
the party asserting subject matter jurisdiction on a Rule 12(b)(1) motion. People United
for Child., Inc., 108 F. Supp. 2d at 283 (citing Atl. Mut. Ins. Co., 968 F.2d at 198).
III.

ANALYSIS
A plaintiff has standing under the ADA where (1) he alleges past injury under the

ADA; (2) it is reasonable to infer that the discriminatory treatment would continue; and
(3) it is reasonable to infer, based on the past frequency of the plaintiff’s visits and the
proximity of the defendant’s public accommodation to the plaintiff’s home, that the
plaintiff intends to return to the subject location. Calcano v. Swarovski N. Am. Ltd., 36
F.4th 68, 74 (2d Cir. 2022) (quoting Kreisler v. Second Ave. Diner Corp., 731 F.3d 184,
187–88 (2d Cir. 2013).
Gannon sufficiently establishes the first two requirements. He satisfies the first
requirement—a past injury under the ADA—by asserting that he was denied full and
equal access to the property when he was unable to enter the bakeshop as a result of
structural barriers. Doc. 1 ¶¶ 54, 60; Doc. 32 at 9 (showing a picture of Gannon, in his
wheelchair, in front of the eight-inch step of the entranceway into Party Bus). Gannon
satisfies the second requirement—a reasonable inference that the discrimination will
continue—by plausibly alleging that the property’s steps constitute an ADA violation.
Doc. 1 ¶¶ 48–54. �e alleged discrimination will likely continue because Essex Street
has indicated that, because of the unusual configuration of the stairs, the installation of a
permanent ramp is impractical. Decl. Supp. Def.’s Mot., ECF Doc. 30 ¶ 9. However, for
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the reasons set forth below, Gannon fails to establish the third requirement for ADA
standing—a plausible intent to return to the property. Accordingly, Essex Street’s motion
to dismiss for lack of subject matter jurisdiction is granted.
�e third requirement for ADA standing requires a reasonable inference that
Gannon intends to return to the property. Kreisler, 731 F.3d at 187–88. �is is a factspecific inquiry, Laufer v. Laxmi & Sons, LLC, No. 119 Civ. 1501 (BKS), 2020 WL
2200207, at *2 (N.D.N.Y. May 6, 2020), in which Gannon must plausibly allege “a real
and immediate threat” of future discrimination against him by Essex Street. Calcano, 36
F.4th at 75 (quoting Kennedy v. Floridian Hotel, Inc., 998 F.3d 1221, 1233 (11th Cir.
2021)); see also Shaywitz v. Am. Bd. of Psychiatry & Neurology, 675 F. Supp. 2d 376,
382 (S.D.N.Y. 2009). �e threat of future injury must not be “merely conjectural or
hypothetical.” Id. at 382. While the Second Circuit has established that “deterrence
constitutes an injury under the ADA,” Kreisler, 731 F.3d at 188, Gannon still must
establish a “material risk of future harm” that is “sufficiently imminent and substantial.”
Calcano, 36 F.4th at 72 (quoting TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2210
(2021)). Conclusory allegations that Gannon lives near and intends to return to the
property are not sufficient to satisfy the third requirement of ADA standing. Id.
�e Second Circuit’s opinions in Kreisler and Calcano are helpful in
distinguishing between plausible and implausible assertions of an intent to return to a
particular location to establish standing under the ADA. In Kreisler, the Court held that
the plaintiff, who was in a wheelchair and could not access the defendant’s diner due to a
step at the front entrance, had sufficiently pled facts that established a plausible intention
to return to the diner. Kreisler, 731 F.3d at 188. �e plaintiff had asserted that he was a
frequent customer of other diners in the neighborhood, passed by the diner three to four
times per week, lived within several blocks of the diner, and intended to frequent the
diner if it became accessible. Id. at 186, 188. Similarly, the plaintiffs in Calcano, who
were visually-impaired and suing numerous retail stores for failing to sell gift cards
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containing Braille, asserted that they lived in close proximity to the defendants’ retail
stores, had been customers in the past, and would be customers again if the stores were
made accessible. Calcano, 36 F.4th at 76. However, the Court found their assertions to
be conclusory and insufficiently plausible. Id.
Unlike the Kreisler plaintiff who asserted specific and individualized facts, the
Calcano plaintiffs made assertions that lacked “any detail” about their past and future
visits to the defendants’ stores and instead “parrot[ed] the court’s language in Kreisler.”
Id. �e Calcano plaintiffs did not state with specificity how close they actually lived to
the defendants’ stores, only stating that they resided “in close proximity.” Id. By
contrast, the Kreisler plaintiff specifically identified that he lived within several blocks of
the defendant’s diner and passed by it three to four times per week. Kreisler, 731 F.3d at
186, 188. Vaguely asserting that one lives in close proximity to a defendant’s business
and intends to be a customer in the future is not enough; the plaintiff’s assertions must be
accompanied by specific and individualized details. See Calcano, 36 F.4th at 76–77. 4
Gannon’s assertions in the instant case are even less detailed and more conclusory
than those in the Calcano case. Gannon suggests that he has been deterred from visiting
the property, stating that he “will continue to suffer discrimination” and faces “a realistic,
credible, existing and continuing threat of discrimination.” Doc. 1 ¶¶ 61, 70. But unlike
the Kreisler plaintiff, Gannon does not refer to any specific facts to support his assertion.
He does not assert that he frequents other bakeshops in the neighborhood, for example.
Nor does he explain why he wanted to access the property in the first place or why he
would want to access it in the future. Even the plaintiffs in Calcano—who the Court
determined did not have standing—asserted an intent to purchase items from the

Although Calcano concerns an alleged ADA violation due to inaccessible products, district courts have
applied Calcano’s reasoning to ADA claims that—like Gannon’s claims—involve alleged structural
inaccessibility. See, e.g., Keung v. Allen Convenience Corporation et al., No. 22 Civ. 7129 (VEC), ECF
Doc. 9 (S.D.N.Y. November 2, 2022); Hennessy by and through Hennessy v. Poetica Coffee Inc., No. 21
Civ. 5063 (KAM) (RML), 2022 WL 4095557 (E.D.N.Y. Sept. 7, 2022).
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defendants’ retail stores once the alleged ADA violations were remedied. Calcano, 36
F.4th at 76. Gannon does imply that he may want to patronize Party Bus at some point in
the future, but that he “does not know when.” Doc. 32 at 9. Such “some day intentions”
are insufficient to establish an injury absent a description of concrete plans. See Harty v.
W. Point Realty, Inc., 28 F.4th 435, 443 (2d Cir. 2022) (quoting Lujan v. Defs. of Wildlife,
504 U.S. 555, 564 (1992)) (internal quotation marks omitted).
Gannon likewise does not provide sufficient evidence that he resides in close
proximity to the property, merely asserting that he lives in the same county, i.e., the island
of Manhattan. Doc 1 ¶ 4; see Hennessey by and through Hennessy v. Poetica Coffee Inc.,
No. 21 Civ. 5063 (KAM), 2022 WL 4095557, at *3 (E.D.N.Y. Sept. 7, 2022) (explaining
that residing in the same county as the defendant’s property is insufficient to establish a
plausible intent to return). Simply put, Gannon’s complaint fails to supply any details to
support an inference that he intended to return to the property. Gannon can therefore not
establish standing. See Calcano, 36 F.4th at 76–77.
Furthermore, cookie-cutter complaints provide evidence of an insufficiently pled
complaint, and Gannon’s complaint seems to be a “cut-and-paste and fill-in-the-blank
pleading[]” similar to that admonished in Calcano. Id. at 77. Gannon has filed twentysix cases, including this one, in this District since January 14, 2022, each filed by the
same attorney. Doc. 30-1. �e complaint in the instant case contains general and
conclusory assertions that are almost identical to the language in the other twenty-five
cases filed by Gannon and his attorney. Compare Doc. 1 ¶¶ 54–76, with Gannon v. 115
Les Realty LLC et al., No. 22 Civ. 700 (PGG) (RWL), ECF Doc. 1 ¶¶ 56–78, Gannon v.
37 Essex Street Corp. et al., No. 22 Civ. 771 (LJL), ECF Doc. 1 ¶¶ 50–72, and Gannon v.
162 E. Broadway LLC et al., No. 22 Civ. 699 (LGS) (RWL), ECF Doc. 7 ¶¶ 52–74.
Article III does not grant a “freewheeling power to hold defendants accountable
for legal infractions.” Harty, 28 F.4th at 443 (quoting TransUnion, 141 S. Ct. at 2205).
Rather, it only “grants federal courts the power to redress harms that defendants cause
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plaintiffs.” Id. (quoting TransUnion, 141 S. Ct. at 2205). It is not enough that Gannon
might have sufficiently alleged that the property’s entranceway violates the ADA. Id. at
444 (quoting TransUnion, 141 S. Ct. at 2205). Gannon fails to show how he was
concretely and particularly injured by the alleged violation. Accordingly, Gannon has not
established standing, and Essex Street’s motion to dismiss for lack of subject matter
jurisdiction is granted.
�e Court will, however, grant Gannon leave to amend his complaint. Courts are
instructed to “freely give leave [to amend a pleading] when justice so requires.” Fed. R.
Civ. P. 15(a)(2). �e Second Circuit has instructed courts not to dismiss a complaint
“without granting leave to amend at least once when a liberal reading of the complaint
gives any indication that a valid claim might be stated.” Shabazz v. Bezio, 511 F. App’x
28, 31 (2d Cir. 2013) (quoting Shomo v. City of New York, 579 F.3d 176, 183 (2d Cir.
2009)) (internal quotation marks omitted). In Lorely Financing, the Second Circuit
reaffirmed the “liberal spirit” of Rule 15 and counseled strongly against the dismissal of
claims with prejudice prior to “the benefit of a ruling” that highlights “the precise
defects” of those claims. Lorely Fin. (Jersey) No. 3 Ltd. v. Wells Fargo Sec., LLC, 797
F.3d 160, 190–91 (2d Cir. 2015) (quoting Williams v. Citigroup Inc., 659 F.3d 208, 214
(2d Cir. 2011) (per curium)).
Here, because this is the Court’s first opportunity to highlight the precise defects
of Gannon’s pleading and it is not yet apparent that another opportunity to amend would
be futile, the Court will permit him to replead the dismissed claims.
IV.

CONCLUSION
For the foregoing reasons, Essex Street’s motion to dismiss is GRANTED.

Gannon is granted leave to file an amended complaint, if at all, by February 17, 2023.

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Failure to do so will result in the dismissal of the claims against Essex Street. �e Clerk
of Court is respectfully directed to terminate the motion, Doc. 29.
It is SO ORDERED.
Dated:

January 17, 2023
New York, New York
EDGARDO RAMOS, U.S.D.J.

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