Brown v. McKinley Mall, LLC et al
DECISION AND ORDER granting 28 Motion to Compel. Defendant's responses to Plaintiff's Discovery Requests and amended answers to Plaintiff's Requests to Admit shall be served within 20 days of this Decision and Order. Within 10 days of this Decision and Order the parties shall meet and confer and file, either jointly or individually, a proposed amended scheduling order to the extent necessary taking into account the delay necessitated by the court's determination of Plaint iff's motion and the time required for Defendants compliance with this Decision and Order. Also, Defendant shall show cause, by papers filed within 14 days of this Decision and Order, why Plaintiff's expenses incurred in connection with Pla intiff's motion should not be awarded pursuant to Rule 37(a)(5)(B). Plaintiff's response shall be due 10 days thereafter; Defendant's reply may be filed within five days thereafter. Oral argument shall be at the courts discretion. Signed by Hon. Leslie G. Foschio on 5/30/2017. (SDW)
UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF NEW YORK
CHRISTOPHER E. BROWN,
McKINLEY MALL, LLC,
ALAN DONATELLI, ESQ.
Attorney for Plaintiff
11 Summer Street, 3rd Floor
Buffalo, New York 14209
KU & MUSSMAN, P.A.
Attorneys for Plaintiff
LOUIS I. MUSSMAN, of Counsel
18501 Pines Boulevard, Suite 209-A
Pembroke Pines, Florida 33029
COLUCCI & GALLAHER, P.C.
Attorneys for Defendant
PAUL G. JOYCE,
TORREY E. GRENDA, of Counsel
2000 Liberty Building
424 Main Street
Buffalo, New York 14202-3695
In this action alleging violations of the American with Disabilities Act’s (“ADA”)
requirements respecting handicapped access to public accommodations such as the
large suburban shopping mall operated in this district by Defendant (“the McKinley
Mall”),1 Plaintiff, by papers filed February 3, 2017 (Dkt. 28), moves to compel
Defendant’s answers to Plaintiff’s Interrogatories and related document production, and
Plaintiff also alleges violations of the N.Y. Exec. Law § 296(a) and N.Y. Civil Rights Law § 40 et
seq., providing relief similar to the ADA with respect to handicapped access to public accommodations
(“Plaintiff’s state claims”).
answers to Plaintiff’s Requests for Admission (“Plaintiff’ motion”). Defendant’s
opposition was filed February 24, 2017 (Dkt. 30) (“Defendant’s Memorandum”);
Plaintiff’s reply was filed March 2, 2017 (Dkt. 32) (“Plaintiff’s Reply”). Oral argument
was deemed unnecessary.
Plaintiff’s Interrogatory and Document Production Requests.
At issue on Plaintiff’s motion is Plaintiff’s Interrogatory No. 10 which requests
Defendant to state Defendant’s most recent fiscal year “cash and cash equivalent;
investments, and earnings and cash flow for the prior fiscal year” (“Plaintiff’s
Interrogatories”). Plaintiff’s related document requests seek Defendant’s tax returns for
the past three years (Request No. 5), documents reflecting Defendant’s financial
projections or estimations regarding Defendant’s future growth (Request No. 6),
Defendant’s profitability for its last three years (Request No. 17), Defendant’s financial
resources for the past three years (Request No. 18), Defendant’s annual operating
budget for the past three years (Request No. 19), documents reflecting Defendant’s
“overall financial resources” for the past three years (Request No. 20), documents
reflecting Defendant’s gross receipts for the past three years (Request No. 24), gross
receipts for the McKinley Mall for the past three years (Request No. 25), and all audited
financial statements and similar documents for the McKinley Mall for the past three
years (Request No. 31) (“Plaintiff’s Document Requests”) (together “Plaintiff’s Discovery
Plaintiff’s Requests for Admission, to which Defendant objected and refused to
answer, request Defendant admit or deny that Defendant’s property includes designated
[handicapped]2 accessible parking space(s) with slopes in excess of 1:48 (Request No.
11), curb ramp(s) with running slopes in excess of 1:12 (Request No. 12), curb ramp(s)
with side flare slopes in excess of 1:10 (Request No. 13), curb ramp(s) which do not
provide a level landing (Request No. 14), curb ramp(s) which do not provide smooth
transitions (Request No. 15), sidewalk(s) with running slopes in excess of 1:20 but
lacking handrails (Request No. 16), sidewalk(s) with cross slopes in excess of 1:48
(Request No. 17), and exterior tenant entrances which lack level landings, i.e., where
the slope in front of the door is greater than 1:48 (Request No. 18) (“Plaintiff’s Requests
In response, Defendant objected to Plaintiff’s Interrogatories asserting, as
pertinent to Plaintiff’s motion, that Plaintiff’s Interrogatory is vague and ambiguous,
overly broad, lacks relevancy, is unduly burdensome, and seeks confidential and
proprietary information. Defendant also objects to Plaintiff’s Document Production
requests on similar grounds of overbreadth, undue burdensomeness, vagueness,
proprietary information, and lack of relevancy. As to Plaintiff’s Document Request Nos.
25 and 31, Defendant also objects on the ground that Plaintiff’s definition of “Subject
Property” to which the requests pertain includes ownership of real estate, which is
included in the McKinley Mall, by entities other than Defendant. In response to
Plaintiff’s Requests to Admit, Defendant objects on grounds of vagueness, and that
Plaintiff’s reference of Defendant’s Property includes real property neither owned nor
operated by Defendant, fails to specifically define the areas or structures, e.g., curb
ramps, to which Plaintiff’s Requests to Admit apply, that Plaintiff’s Requests to Admit
seek admissions as to a pure question of law, such areas or structures were created
Unless indicated otherwise bracketed material added.
prior to 1992, the effective date of the ADA, and because Defendant is neither an
architectural nor legal expert, Defendant is unable to admit or deny Plaintiff’s Discovery
In response, Plaintiff contends Plaintiff’s Discovery Requests seek relevant
information as permitted by the ADA, specifically, 42 U.S.C. § 12181(b)(2)(A)(iv), which
provides that with respect to properties like the McKinley Mall constructed prior to the
enactment of the ADA in 1992, a plaintiff must establish that requested compliance with
ADA handicapped access requirements such as at issue in the instant matter be
“readily achievable,” and that among the factors relevant to this issue, the court should
consider “[t]he overall financial resources of the facility or facilities involved in the
For public accommodation facilities such as the McKinley Mall, see 48 U.S.C.
§ 12181(7)(E), constructed prior to 1992 when the ADA was enacted, discrimination
against a person with a disability, i.e., handicapped, occurs at a public accommodation
when the owner of the facility fails to remove architectural or structural barriers
preventing access by such persons to the facility “where such removal is readily
achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). These access requirements also apply to
any later alterations to any facility constructed prior to 1992 if the resulting change
affects the useability of a building or facility. See 28 C.F.R. § 36.402(a). Removal of
the barriers to access is readily achievable if the removal is “easily accomplish[ed] and
. . . [can] be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). “In
determining whether a proposed remedial action is readily achievable, factors to be
considered [as relevant] include . . . (B) the overall financial resources of the facility or
facilities involved in the action . . . .,” [and] (C) the overall financial resources of the
covered entity . . .[ ].” Id. In deciding the merits of a claim brought pursuant to the ADA,
it is the plaintiff’s burden to suggest “‘a plausible proposal for barrier removal, the costs
of which, facially, do not clearly exceed its benefits.’” Kreisler v. Second Ave. Diner
Corp., 731 F.3d 184, 189 (2d Cir. 2013) (quoting Roberts v. Royal Atlantic Corp., 542
F.3d 363, 378 (2d Cir. 2008)), upon which the burden of non-persuasion shifts to the
defendant. See Roberts, 542 F.3d at 370. Here, in addition to Defendant’s objections
based on undue burdensomeness, vagueness and relevancy, Defendant asserts that
Plaintiff lacks standing arising from the unlikelihood Plaintiff will ever return to attempt
access to the McKinley Mall by virtue of the fact that Plaintiff resides in the New York
City area, Dkt. 30 at 2-3, and that Plaintiff has failed to satisfy Plaintiff’s initial burden to
show that the costs of the barrier removal Plaintiff seeks is “readily achievable,” viz.,
cost-effective. Dkt. 30 at 4-7.
At the outset, Defendant’s objection that Defendant need not respond to
Plaintiff’s Discovery Requests at issue because, as an instigator of ADA claims, Plaintiff
lacks standing, and has failed to show, prima facie, Plaintiff’s barrier removal demands
are readily achievable, overlooks the fact that despite such contentions, which
conceivably could be relevant to a motion to dismiss for failure to state a claim pursuant
to Fed.R.Civ.P. 12(b)(6), or for judgment on the pleadings pursuant to Fed.R.Civ.P.
12(c), Defendant, according to the docket has, prior to Plaintiff’s service of Plaintiff’s
Discovery Requests and Requests to Admit, made no such motions. As such, for the
purposes of Plaintiff’s motion, Plaintiff’s ADA and Plaintiff’s state claims remain in the
case and cannot be avoided by Defendant’s contentions. See Fed.R.Civ.P. 26(b)(1)
(parties may obtain discovery on any matter relevant to any party’s claim or defense). If
Defendant wished to avoid discovery under Defendant’s theories of Plaintiff’s asserted
lack of standing and failure to plead a prima facie ADA claim, it was incumbent on
Defendant to timely file a motion to dismiss asserting such grounds and request
discovery be stayed pending a ruling on Defendant’s putative motions. However,
Defendant did not do so. Defendant’s objection to Plaintiff’s Discovery Requests on
these grounds is therefore without merit and OVERRULED.
Defendant’s objections based on overbreadth, undue burdensomeness and
vagueness fare no better. Absent an affidavit from a person with personal knowledge of
the factual nature of an alleged undue burden arising from a discovery request pursuant
to the Federal Rules of Civil Procedure, such generalized assertions that a discovery
request is unduly burdensome will be overruled. See Strom v. Nat’l Enterprise
Systems, Inc., 2010 WL 1533383, at *4 (W.D.N.Y. Apr. 15, 2010) (citing caselaw).
Here, Defendant has provided no such required affidavit in support of its
burdensomeness objection and, accordingly, Defendant’s objection based on
burdensomeness is OVERRULED.
Plaintiff’s Interrogatories include requests for a variety of financial information
directed to Defendant’s ability to absorb the costs of the barrier removals stated by
Plaintiff to be approximately $69,000. Dkt. 32 at 6. Specifically, Plaintiff’s Interrogatory
No. 10 seeks the amount in dollars of Defendant’s cash and cash equivalents,
investments, earnings and cash flow. As these are commonly recognized accounting
terms (and Defendant does not contend otherwise) applicable to for-profit businesses
(which Defendant presumably is), it is difficult to understand how Defendant, the owner
of a major suburban shopping mall, would reasonably find such terms vague or
ambiguous. Defendant’s objections on this ground are therefore OVERRULED.
Further, as Plaintiff’s Discovery Requests are limited to Defendant’s most recent
previous fiscal year, the requests can hardly be considered overly broad. The same
may be said for Plaintiff’s Document Requests seeking Defendant’s tax returns, budget
projections and other financial information. As to Defendant’s objection that such
information is proprietary, this issue should (and should have been prior to Plaintiff’s
motion) be resolved by execution of a reasonably acceptable confidentiality agreement.3
Defendant’s contention that the properties to which Plaintiff’s Discovery Requests
pertain include real estate which, although physically part of the McKinley Mall, is not
actually owned by Defendant such that the requests are therefore overbroad is also
meritless, given that Plaintiff has agreed to limit Plaintiff’s Discovery Requests to
properties which are in fact owed by Defendant. See Dkt. 28-1 at 8. Accordingly,
Defendant’s objections to Plaintiff’s Discovery Requests on these grounds are also
Nor is there any merit in Defendant’s objection based on a lack of relevance.
The ADA itself makes the financial circumstances of a property owner accused of
discrimination based on a refusal to remove barriers to access to a public
accommodation under the ADA, such as the McKinley Mall, a relevant factor to be
considered on the question of whether a proposed barrier removal is readily achievable.
See 42 U.S.C. § 12181(9). Thus, there can be little doubt that the information regarding
Defendant’s finances and capacity to implement Plaintiff’s recommended removal of the
alleged access barriers existing at the McKinley Mall are relevant to Plaintiff’s ADA and
Any further delay in accomplishing this routine task will require that the court direct its own order.
state law claims and Defendant’s objection on this ground must be similarly
OVERRULED. As Defendant’s relevancy objections to Plaintiff’s document requests
related to Defendant’s financial condition raise the same issues addressed, supra, with
respect to Plaintiff’s Interrogatory No. 10, Defendant’s objections to Plaintiff’s Document
Requests 5, 6, 17-20, 24-25 and 31 are OVERRULED for the same reasons.
Plaintiff’s Requests to Admit.
As noted, Plaintiff served Defendant with seven Requests For Admission
pursuant to Fed.R.Civ.P. 36(a) (“Rule 36(a)”). Specifically, Plaintiff requests Defendant
admit that various architectural or structural features of Defendant’s property,
particularly parking areas, curb ramps, sidewalks and exterior tenant entrances to the
McKinley Mall, display certain physical characteristics such as slopes that exceed ratios
as provided in regulations promulgated under the ADA. See, e.g., Plaintiff’s Request
No. 11 which requests Defendant to admit or deny that Defendant’s property includes
designated accessible parking space(s) with slopes in excess of 1:48 as mandated by
the ADA Accessibility Guidelines, 36 C.F.R. Pt. 1191 Appx. D § 502 (“the Guidelines”);
Plaintiff’s Request No. 18 which requests Defendant admit or deny that Defendant’s
property includes tenant entrances which lack level landings, i.e., where the slope in
front of the door to the entrance from outside is greater than 1:48 as mandated under 36
C.F.R. Pt. 1191 Appx. D § 405.4 Defendant objects to Plaintiff’s Discovery Requests
asserting they are improper and overbroad. Dkt. 30 at 9. Defendant also contends that
admitting to Plaintiff’s Discovery Requests is tantamount to requiring Defendant admit
Neither party’s papers include specific citations to the ADA’s Accessibility Guidelines pertinent to each
of Plaintiff’s requests; however Defendant does not dispute that the architectural or structural features to
which each Request to Admit relates represents a requirement imposed by regulations as the two
examples given by the court indicate. The court therefore presumes Defendant concedes the existence
and applicability of the ADA Guidelines to each of Plaintiff’s Requests to Admit; nothing in Defendant’s
Memorandum suggests otherwise.
liability for Plaintiff’s ADA and state law claims and a violation of law, i.e., the ADA,
which is beyond the scope of a Rule 36(a) request. Dkt. 30 at 10. Defendant also
argues that Plaintiff’s use of the terms “slope,” “running slope,” and “side flare slope,”
are undefined by Plaintiff’s Requests to Admit and are therefore impermissibly vague
thus providing Defendant with grounds to refuse to respond to Plaintiff’s Requests to
Admit. Dkt. 30 at 10. Defendant also maintains that Plaintiff’s use of the term “tenant
entrances” includes entrances not open to the public and for that reason Plaintiff’s
Requests to Admit as to this issue, Request No. 18, are overly broad. Finally,
Defendant asserts that in order to respond to Plaintiff’s Requests to Admit, Defendant
would be required to hire an expert with the capability of accurately measuring the areas
of the McKinley Mall to which Plaintiff’s Requests pertain without an adequate definition
by Plaintiff of such areas and that because the McKinley Mall encompasses
approximately 50 acres of parking space, taking such measurements would impose an
undue burden on Defendant not required by Rule 36(a). Dkt. 30 at 10. See generally
Defendant’s Response To Requests For Admission, Dkt. 30-4.
In contrast, Plaintiff contends that insofar as Plaintiff’s Requests to Admit request
Defendant to admit various exterior physical features of its property, such as a parking
area that possesses a particular physical characteristic such as an incline or slope
defined by a particular maximum ratio such as 1 to 48 as the Guidelines provide, the
requests are only for Defendant to admit to a fact and not, as Defendant asserts, a
proposition of law which is a form of admission outside the scope of Rule 36(a)(1)(A) (“A
party may serve a written request to admit . . . facts, the application of law to fact, or
opinion about either.”). Even if admitting such a fact also effectively admits non-
compliance by Defendant with the Guidelines applicable to any of the architectural or
structural features to which Plaintiff’s Requests to Admit are directed, such requested
admission would request an admission as to the application by law (the requirements
imposed by the Guidelines) to a fact (the ascertained and admitted slope ratio of a
particular area such as a parking space or entrance to a tenant store from outside, a
form of admission permitted by Rule 36(a)(1)(A) (i.e., the application of law to facts).
Thus, there is no merit to Defendant’s refusal to respond to any of Plaintiff’s Requests to
Admit on this ground, and Defendant’s objection is therefore OVERRULED. Nor is
there any merit to Defendant’s related objection that Plaintiff’s requests fail to
adequately define certain terms in the requests, such as “slope,” which Defendant
contends is necessary to enable Defendant to accurately respond. The terms to which
Defendant objects are defined by the Guidelines. See, e.g., 36 C.F.R. Pt. 1191 Appx.
CF 106.5 (providing definitions for curb ramps, running slopes, and cross slopes); see
also www.ada.gov (for additional ADA definitional information) relative to these features.
As a major regional public accommodation subject to the ADA, Defendant, and
competent counsel, may be reasonably expected to be familiar or, when confronted with
a claim under the ADA, to become familiar with these definitional sources. Thus,
Defendant can readily ascertain the legal meaning of the terms used by Plaintiff’s
Requests to Admit in formulating Defendant’s answers, and Defendant’s objection that
Plaintiff’s Requests to Admit request Defendant ‘guess’ at its peril as to the meaning of
the various terms used in Plaintiff’s Requests to Admit is also without merit and is
OVERRULED as such.5
The court recognizes that Defendant’s responses to Plaintiff’s Requests to Admit would have been
facilitated if Plaintiff had provided the definition of the architectural or structural features at issue along
Defendant also contends that because Plaintiff fails to identify the specific curb
ramps, sidewalks and tenant entrances located within the McKinley Mall to which
Plaintiff’s Requests to Admit pertain, and given that the McKinley Mall includes over 50
acres of parking, Defendant is unable to answer. Plaintiff does not directly respond to
this objection. Rule 36(a)(4) permits an answering party to decline to admit or deny a
request if the answering party “state[s] in detail why the answering party cannot
truthfully admit or deny it, provided the party also states that it has made reasonable
efforts to enable it to answer.” See Fed.R.Civ.P. 36(a)(4). The burdensomeness of a
Rule 36(a) request is recognized as a sufficient ground to decline an answer. See
Advisory Committee Notes (1970 Amendment) Federal Civil Judicial Procedures and
Rules (2017 Ed. Thomson Reuters) at 175. However, Rule 36(a)(4) also, as indicated,
requires that where an answering party refuses to answer based on a “lack of
knowledge or information,” the party must state it has made reasonable inquiry and that
the information it knows or can readily obtain is insufficient to enable it to admit or deny.
Here, although Defendant asserts that it lacks the capability to obtain measurements of
all of the parking areas designated for handicapped parking within Plaintiff’s Requests
to Admit, and that Plaintiff has failed to identify which curb ramps and sidewalks may
have slopes which exceed the maximums permitted by the ADA Guidelines, nowhere in
Defendant’s opposition does Defendant indicate what, if any, efforts, including reviewing
construction documents, blueprints and site plans for the McKinley Mall, it has made to
ascertain whether, based on such documents or Defendant’s own inspection, any of its
handicapped parking areas, curb ramps or sidewalks as denominated by Plaintiff’s
Requests to Admit, in fact have slopes and other characteristics exceeding the ratios as
with specific references to the relevant ADA regulations and Guidelines.
stated in Plaintiff’s Requests to Admit at issue. Nor has Defendant indicated it has
made any effort to undertake such reasonable inquiries based on its review of the
published regulatory definitions of the terms curb landings, ramps, ramps with side
flares, slopes and the other alleged barriers as described in Plaintiff’s Requests to Admit
to assist Defendant in performing such reasonable inquiry as required by Rule 36(a)(4)
to enable it to answer all of Plaintiff’s Requests to Admit without necessitating Plaintiff’s
motion. In short, Defendant has failed to demonstrate that the information needed to
enable Defendant to fully answer Plaintiff’s Discovery Requests is not “readily
obtain[able]” as Rule 36(a)(4) requires to justify Defendant’s refusal to answer.
Accordingly, Defendant’s objections to Plaintiff’s Requests to Admit based on
vagueness and burdensomeness are OVERRULED. Although where an answering
party fails to respond to a Rule 36(a)(1) request the court may deem such failure to be
an admission, Rule 36(a)(6), the court may instead direct the party to serve an
amended answer. Id. Here, the court finds Defendant should be given an opportunity
to file amended answers to Plaintiff’s Requests to Admit which fully comply with the
requirements of Rule 36(a)(4) as discussed, supra.
Where a responding party’s refusal to provide discovery requires a motion to
compel, the responding party’s refusal is found to be not substantially justified, and an
award of expenses would not in the circumstances be unjust, an award of the moving
party’s expenses including reasonable attorneys fees is required. See Fed.R.Civ.P.
37(a)(5) (“Rule 37(a)(5)”). Similarly, an answering party which served inadequate
answers to a request to admit pursuant to Rule 36(a)(1) requiring a motion to compel is
also subject to an award of expenses in accordance with Rule 37(a)(5). See
Fed.R.Civ.P. 36(a)(1); McCarthy v. Ameritech Pub. Inc., 763 F.3d 488, 493-94 (6th Cir.
2014). As Defendant’s failure to provide proper answers to Plaintiff’s Interrogatories,
production in response to Plaintiff’s related Document Requests addressed to
Defendant’s finances, and Plaintiff’s Requests to Admit at issue on Plaintiff’s motion
does not appear to have been substantially justified, Defendant shall show cause, by
papers filed within 14 days of this Decision and Order, why Plaintiff’s expenses incurred
in connection with Plaintiff’s motion should not be awarded pursuant to Rule 37(a)(5)(B).
Plaintiff’s response shall be due 10 days thereafter; Defendant’s reply may be filed
within five days thereafter. Oral argument shall be at the court’s discretion.
Based on the foregoing, Plaintiff’s motion (Dkt. 28) is GRANTED. Defendant’s
responses to Plaintiff’s Discovery Requests and amended answers to Plaintiff’s
Requests to Admit shall be served within 20 days of this Decision and Order. Within 10
days of this Decision and Order the parties shall meet and confer and file, either jointly
or individually, a proposed amended scheduling order to the extent necessary taking
into account the delay necessitated by the court’s determination of Plaintiff’s motion and
the time required for Defendant’s compliance with this Decision and Order.
/s/ Leslie G. Foschio
LESLIE G. FOSCHIO
UNITED STATES MAGISTRATE JUDGE
Dated: May 30, 2017
Buffalo, New York
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