The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge
Plaintiffs Disabled In Action ("DIA"), Robert Levine, and Frieda Zames sue Trump International Hotel and Tower ("Trump Building," "Building," or "defendant") alleging that various features of the Building are not sufficiently accessible to the disabled, in violation of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. (2000), New York Executive Law § 296-(2), and New York City Human Rights Law § 8-107.*fn1 Plaintiffs seek injunctive relief, damages, attorneys fees and punitive damages. As to plaintiffs' claim that the wheelchair lifts at the Building are not independently operable, defendant moves for summary judgment under Fed.R.Civ.P. 56. Defendant moves to dismiss under Fed.R.Civ.P. 12(b)(6) and/or 12(c) plaintiffs' claim that on "information and belief" other ADA violations exist.
For the reasons stated below, defendant's motion for summary judgment is denied. plaintiffs' claim that other violations at the Trump Building exist is dismissed.
The following facts are undisputed unless described otherwise. From 1995 to 1997, the partnership One Central Park West Associates, P.T., L.P., ("Partnership") turned the Gulf & Western Building into the Trump International Hotel and Tower. The Building, built in 1969 as an office tower, is located at One Central Park West in Manhattan. (Def.'s 56.1 ¶ 1; Weiss Aff. ¶ 1) The building rests on a pedestal (or "plaza"), approximately four feet above the sidewalk on all four sides of the Building: the 61st Street, 60th Street, Central Park West, and Broadway sidewalks, respectively. (Def.'s 56.1 ¶ 2; Weiss Aff. ¶ 2) According to Andrew Weiss, the principal of the Partnership who was responsible for overseeing the redevelopment design and construction, the main lobby entrances of the building have been located on the elevated plaza level since 1969. (Weiss Aff. ¶ 2)*fn2
The alterations created three lobbies at the plaza level to provide access to the residential, hotel, and restaurant areas of the Building. (Def.'s 56.1 — 3; Weiss Aff. ¶ 3) According to Weiss, before the alteration, only stairs provided "immediate vertical access" from the sidewalks to the elevated lobby entrances. (Weiss Aff. ¶ 4; Def.'s 56.1 ¶ 4)*fn3 Weiss says that as part of the alteration two wheelchair lifts were installed to provide an "accessible path of travel" from the street level to the lobbies at the plaza level. One lift is located at the South-West corner of Central Park West and 61st Street; the other is further West on 61st Street. (Weiss Aff. ¶ 4; Def.'s 56.1 ¶ 4)
According to Thomas P. Downing, the assistant general manager of the Trump Building, each lift travels between the sidewalk level and the plaza level. At each level there is a call button next to a key switch adjacent to the lift door. To call the lift to a level if it is at another level, the call button must be unlocked before it is pressed. To operate the lift, the operator must also turn a key switch that locks the "up" and "down" buttons on a control panel inside the lift. (Downing Aff. ¶ 3; Def.'s 56.1 ¶ 6) According to Downing, prior to October 12, 2001, all doormen at the building wore lift keys around their necks to unlock the lift switches. The doormen assisted all lift users in operating the lifts. (Downing Aff. ¶ 4; Def.'s 56.1 ¶ 7) As of October 12, 2001, "fixed keys" are hung at each lock on a chain affixed near the lock. (Downing Aff. ¶ 5; Def.'s 56.1 ¶ 8) Downing says that doormen and security personnel periodically inspect the lifts, ensure that keys are kept in the locks, and immediately replace any missing keys. In addition, doormen continue to wear keys around their necks. (Downing Aff. ¶ 6; Def.'s 56.1 ¶ 9) Downing asserts that Trump Building intends to retain the current key procedure "for the foreseeable future." (Downing Aff. ¶ 7)
Plaintiffs' complaint, filed on June 18, 2001, states that Disabled in Action ("DIA") is a "civil rights group organized by individuals with disabilities to advocate for disabled persons' integration into society and equal access to all services, activities, programs, resources and facilities available to non-disabled persons." (Compl. ¶ 2) "Its members are predominately individuals with various physical disabilities impairing mobility, vision and hearing." (Id.) Plaintiff Robert Levine, a resident of New York, is a DIA member who uses a wheelchair "as a result of a mobility impairment." (Id. ¶ 3) "He enjoys dining out; patronizes restaurants in the neighborhood of the Defendants' properties; has attempted to dine at the Defendants' restaurants; and desires to dine at Defendants' restaurants in the future." (Id.) Plaintiff Freida Zames, also a DIA member, is a resident of New York City who uses a motorized scooter as a result of a mobility impairment. (Id. ¶ 4) The complaint alleges that she "enjoys dining out, patronizes restaurants in the neighborhood of the Defendants' properties; and desires to dine at Defendants' restaurants in the future." (Id.) The complaint alleges that "[m]embers of Plaintiff organization, and the individual Plaintiffs, are restaurant patrons who have or have attempted to dine at Defendants' premises in the past and desire and intend to do so in the future." (Id. ¶ 7)
The complaint alleges that the Trump Building is not accessible to the disabled. "Among the barriers to accessibility is a locked lift that bars all independent access to Defendants' property by wheelchair and scooter users." (Id. ¶ 8) In addition, the complaint states that "[o]n information and belief, Defendants maintain other policies, practices, and structural impediments to accessibility which discriminate against the disabled, and Defendants have made alterations to their facilities in a manner that does not comply with the accessibility requirements of the ADA." (Id. ¶ 9) The complaint states: "On December 18, 2000, and again on February 8, February 27, and June 5, 2001, Plaintiffs asked Defendants to voluntarily eliminate the locked lift and make their property independently accessible. Defendants refused." (Id. ¶ 12)
Plaintiffs assert that the Trump Building is a place of public accommodation within the scope of Title III of the ADA, 42 U.S.C. § 12181, New York Executive Law § 296(2), and New York City Human Rights Law § 8-107 (Compl. ¶ 6) and they assert that defendants' premises, practices, and policies discriminate against the disabled in violation of these laws (Id. ¶¶ 14-16)
Defendant moves for summary judgment as to plaintiffs' claim that there is no independent access to the wheelchair lifts. Defendant argues that plaintiffs lack standing to seek injunctive relief as to this claim, have failed to exhaust their administrative remedies, — and have no claim as a matter of law, and that any claim they may have had is now moot. (Trump's Mem. at 1)
Plaintiffs have submitted affidavits in opposition to defendant's motion for summary judgment. Plaintiff Levine asserts that he has had polio since childhood and began using a wheelchair after he had a stroke in 1989. (Levine Aff. ¶ 1) Levine, who has lived in Manhattan for 13 years, states that he noticed the Trump Building in the Summer of 2000 while on a bus, and, as a city planner, was interested in the building. (Id. ¶¶ 2-3) He made plans to have lunch at the restaurant on the plaza (Jean Georges) with his friend Frieda Zames. (Id. ¶ 3) When he went to the Building for lunch, Levine noticed "[t]here was no signage anywhere around the site" and he claims he "was surprised to have such difficulty finding any access point." (Id. ¶ 4) He states that he and Zames found two wheelchair lifts but "neither of them worked." According to Levine, eventually they used the lift with the assistance of a doorman or employee of the building. (Id. ¶ 5) He says he was "made to feel like a second class citizen." (Id.) Plaintiff Frieda Zames, who has lived in Manhattan for 40 years, asserts in her affidavit that she has been disabled since childhood as a result of polio and uses a motorized scooter for mobility. (Zames Aff. ¶ 1) Zames says that she and Levine had to ask an employee to help them to operate the lifts when-they went to the Trump Building in the Summer of 2000. (Id. ¶ 3-5) She claims she was "made to feel like a grade school child asking permission to go to the bathroom." (Id. ¶ 6)
Plaintiffs filed their complaint on June 18, 2001. (Compl.) Levine and Zames state that on December 21, 2001, they returned to Trump Building to dine at Jean Georges after they heard that the lifts had been made independently operable. (Levine Aff. ¶ 6; Zames Aff. ¶ 7) Levine asserts that he tried to use both lifts when he arrived at the Building but was not able to operate them. A doorman helped him up to the plaza level in the lift and back down to the sidewalk when he left the restaurant. (Levine Aff. ¶ 9-12) Zames asserts that there were keys in the locks at the lifts but she was unable to operate the lifts. She claims that she turned the keys and pushed the buttons in all possible combinations but the lifts did not work. There were no instructions about how to operate the lifts. (Zames Aff. ¶¶ 8-10) Zames said she asked one employee for help but he was unable to operate the lift. A second employee climbed over the door into the lift at the plaza level and brought it down to the sidewalk." (Id. ¶ 10)
Levine states that he and his wife "would like to have dinner at Jean George restaurant." "We enjoy eating out frequently and will return to this restaurant when I am independently able [to] get into the restaurant. Until then, despite our desire to dine there, I cannot again subject myself to the humihation of trying to enter [the Trump Building] through its second class route of access." (Levine Aff. ¶ 13)
Zames says that "if the lifts were independently operable, I would return to the restaurant and sit on the plaza." (Zames Aff. ¶ 13) Zames asserts: "I often go with a friend to the area and enjoy eating outdoors in warm weather. As soon as I am able to independently get to the restaurant and plaza at [Trump Building] I will dine there and sit in the sun on the plaza." (Id. ¶ 14)
Peter Hanrahan, an architect retained by the plaintiffs, visited the Trump Building on January 9, 2002. He went first to the lift further to the west on West 61st Street. According to Hanrahan, the lift was positioned between the sidewalk and plaza levels. He says: "Neither the lift door at the sidewalk or the plaza level would open. However, while the keys next to the lift door handles turned, none of the buttons on either door would cause the platform to move. I tried every combination of key turns and button pushes at each door but was unable to move the lift platform or open a door to it." (Hanrahan Aff. ¶ 9) Hanrahan says he approached the other lift from the sidewalk. The platform was at the plaza level and from the sidewalk he was unable to move the platform down. He asked for assistance from a doorman who "approached the lift on the plaza level and brought it down to the sidewalk." (Id. ¶ 10) Hanrahan says he was with Edward Kopelson, who was in a wheelchair. Mr. Kopelson entered the lift with the doorman. Hanrahan asserts that after lunch he and Kopelson opened the door to the lift at the plaza level without turning a key or pushing a button, and they used the lift to exit the property. (Id. ¶ 12) Hanrahan concludes that neither lift was independently operable from the sidewalk level. (Id. ¶ 16)
In addition to its motion for summary judgment on the wheelchair lift claim, defendant moves to dismiss plaintiffs' claim that "[o]n information and belief" there are other barriers to access for the disabled at the Trump Building and that the alterations made to the Building do not comply with the ADA's accessibility requirements. In response to defendant's motion to dismiss, plaintiffs describe several specific features of the Building, other than the lifts, that they claim violate the ADA. The affidavit of Hanrahan describes these alleged violations. (Hanrahan Aff.)
For the reasons stated below, defendant's motion for summary judgment is denied. Plaintiffs' claim that other violations at the Trump Building exist is dismissed.
I first consider defendant's motion for summary judgment on plaintiffs' claim that the wheelchair lifts violate the ADA because ...