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DISABLED IN ACTION OF METRO. N.Y. v. TRUMP INTERN'L HOTEL

United States District Court, Southern District of New York


April 1, 2003

DISABLED IN ACTION OF METROPOLITAN NEW YORK, ROBERT LEVINE, AND FRIEDA ZAMES, PLAINTIFFS, AGAINST TRUMP INTERNATIONAL HOTEL & TOWER, A TO K CORPORATIONS (FICTITIOUSLY NAMED CORPORATIONS) AND A TO K PARTNERSHIPS/ PROPRIETORSHIPS (FICTITIOUSLY NAMED BUSINESSES) JOINTLY AND SEVERALLY, DEFENDANTS

The opinion of the court was delivered by: Michael B. Mukasey, United States District Judge

OPINION AND ORDER

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.

I.

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.

II.

I first consider defendant's motion for summary judgment on plaintiffs' claim that the wheelchair lifts violate the ADA because they are not independently operable.

A. The ADA

Title III of the ADA provides: "No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182 (a) (2000). Under the Act, certain "private entities are considered public accommodations . . . if the operations of such entities affect commerce." 42 U.S.C. § 12181 (7). Included in this list of entities are "a restaurant, bar, or other establishment serving food or drink." Id. § 12181(7)(B). The Trump Building, and Jean Georges, are public accommodations. See 28 C.F.R. § 36.201 (b) (2000) ("Both the landlord who owns the building that houses a place of public accommodation and the tenant who owns or operates the place of public accommodation are public accommodations subject to the requirements of this part. As between the parties, allocation of responsibility for complying with the obligations of this part may be determined by lease or contract.")

The ADA applies to existing buildings, newly constructed buildings, and altered buildings, see 42 U.S.C. § 12182 (b)(2)(A) (iv) & 12183 (2000). The Trump Building, renovated between 1995 and 1997, is subject to the regulations for altered buildings. See 42 U.S.C. § 12181 (note) (section covering altered buildings effective 18 months after date of enactment, July 26. 1990).

With respect to altered facilities, discrimination constitutes "a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs." Id. § 12183(a)(2). The Act provides further:

Where the entity is undertaking an alteration that affects or could affect usability of or access to an area of the facility containing a primary function, the entity shall also make the alterations in such a manner that, to the maximum extent feasible, the path of travel to the altered area and the bathrooms, telephones, and drinking fountains serving the altered area, are readily accessible to and usable by individuals with disabilities where such alterations to the path of travel or the bathrooms, telephones, and drinking fountains serving the altered area are not disproportionate to the overall alterations in terms of cost and scope (as determined under criteria established by the Attorney General).
Id. Congress delegated to the Department of Justice, through the Attorney General, the responsibility for issuing regulations to enforce the Act. See 42 U.S.C. § 12186 (b)

Newly constructed and altered buildings are subject to regulations in 28 C.F.R. Part 36, Subpart D, and must comply with the "ADA Accessibility Guidelines" ("ADAAG"), which are published in Appendix A of Part 36. See 28 C.F.R. § 36.406. If alterations involve an area containing a "primary function," then work must be done to create an accessible path of travel from the building exterior to the altered area. See id. § 36.403; 28 C.F.R. Pt. 36, app. A, ADAAG 4.1.6(2). Under the ADAAG standards, in newly constructed buildings, wheelchair lifts may be used to provide access only under certain circumstances. See 28 C.F.R. Pt. 36, app. A, ADAAG 4.1.3, Exception 4. However, the regulations provide that in altered buildings, wheelchair lifts "complying with [ADAAG] 4.11 and applicable state or local codes may be used as part of an accessible route" and the "use of lifts is not limited" as it is in newly constructed buildings. Id. 4.1.6(3)(g). Wheelchair lifts must comply with ADAAG 4.11, which provides that lifts "shall comply with [ADAAG] 4.2.4, 4.5, 4.27, and ASME A17.1 Safety Code for Elevators and Escalators, Section XX, 1990." Id. 4.11.2. ASME A17.1 provides that with respect to vertical wheelchair lifts, "[o]peration of the car from the upper or lower landing and from the car shall be controlled by a key." ASME A17.1 Safety Code for Elevators and Escalators, Section XX, Rule 2000.loa (1990). Finally, under the regulations, lifts must "facilitate unassisted entry, operation, and exit from the lift." 28 C.F.R. Pt. 36, app. A, ADAAG 4.11.3.

Title III of the ADA grants a private right of action "to any person who is being subjected to discrimination on the basis of disability" in violation of Title III, or "who has reasonable grounds for believing that such person is about to be subjected to discrimination in violation of section 12183 of this title." 42 U.S.C. § 12188 (a)(1) (2000). The provision gives individuals the right to seek injunctive relief but not damages. See id. (providing that the remedies available to individuals shall be those set forth in 42 U.S.C. § 2000a-3 (a), which allows only injunctive relief for violations of Title II of the Civil Rights Act of 1964, Pub. L. 88-352, codified as amended at 42 U.S.C. § 2000a et seq.). Title III provides further:

In the case of violations of sections 12182(b)(2)(A) (iv) and section 12183(a) of this title, injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter. Where appropriate, injunctive relief shall also include requiring the provision of an auxiliary aid or service, modification of a policy, or provision of alternative methods, to the extent required by this subchapter.
Id. § 12188(a)(2).

Title III explicitly does not require "a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization does not intend to comply" with Title III of the ADA. Id. § 12188(a)(1) The "futile gesture" language of Title III is taken from Teamsters v. United States, 431 U.S. 324, 366 (1977) In Teamsters, the Supreme Court held that — plaintiffs who did not actually apply for promotions could challenge the employer's racially discriminatory seniority system under Title VII of the Civil Rights Act of 1964 if they could show that they would have applied for the job but for the employer's discriminatory practices. Teamsters, 431 U.S. at 367-68. The Court in Teamsters reasoned that "[w]hen a person's desire for a job is not translated into a formal application solely because of his unwillingness to engage in a futile gesture he is as much a victim of discrimination as is he who goes through the motions of submitting an application." Id. at 365-66. Congress intended that this "futile gesture" doctrine apply to ADA claims. See H.Rep. No. 101-485 (11), at 82-83 (1990) reprinted in 1990 U.S.C.C.A.N. 303, 365; see also Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1136 (9th Cir. 2002)

B. Standing

Defendant argues that plaintiffs lack standing to obtain injunctive relief regarding the lifts. Even if a plaintiff has suffered an injury within the meaning of Title III of the ADA, his injury must also satisfy the "case" or "controversy" requirement of Article III of the Constitution.

1. Standing of Levine and Zames

It is well established that the "irreducible constitutional minimum of standing contains three elements, " Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992)

First, the plaintiff must have suffered an "injury in fact" — an invasion of a legally protected interest which is (a) concrete and particularized, and (b) actual or imminent, not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct complained of. . . . Third, it must be likely, as opposed to merely speculative, that the injury will be redressed by a favorable decision.
Id. at 560-561 (citations and internal quotation marks omitted). The party invoking federal jurisdiction bears the burden of establishing the elements of standing and "each element must be supported in the same way as any other matter on which the plaintiff bears the burden of proof, i.e., with the manner and degree of evidence required at the successive stages of the litigation." Id. at 561.

A plaintiff must have standing at the time a lawsuit is filed. See Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. (TOC), Inc., 528 U.S. 167, 190-91 (2000); Defenders of Wildlife, 504 U.S. at 569 n. 4; see also Steger v. Franco, 228 F.3d 889, 892 (8th Cir. 2000); Robidoux v. Celani, 987 F.2d 931, 938 (2d Cir. 1993). Events occurring after the lawsuit has been filed may be relevant to whether the claim has become moot but are not relevant to whether a plaintiff has standing in the first instance. See Laidlaw, 528 U.S. at 189. Levine and Zames' visit to the Trump Building in the Summer of 2000, before their complaint was filed, is relevant to whether they had standing when they filed this lawsuit. Their experiences during their December 2001 visit, and the report of Peter Hanrahan, are relevant only to whether plaintiffs' claims have become moot.

At issue is whether plaintiffs have satisfied the first requirement for standing, an "injury in fact." To satisfy the injury-in-fact requirement, plaintiffs must show "actual or imminent injury." Defenders of Wildlife, 504 U.S. at 560.

Courts considering ADA claims have found that disabled plaintiffs who had encountered barriers at restaurants, stores, hotels, or stadiums prior to filing their complaints have standing to bring claims for injunctive relief if they show a plausible intention or desire to return to the place but for the barriers to access. See Pickern v. Holiday Quality Foods Inc., 293 F.3d 1133, 1138 (9th Cir. 2002) (plaintiff had standing who had encountered barriers at a grocery store and who stated that he would shop there again if it were accessible); Steger v. Franco, 228 F.3d 889 (8th Cir. 2000) (to demonstrate standing plaintiffs must "at least prove knowledge of the barriers and that they would visit the building in the imminent future but for those barriers"); see also D'Lil v. Stardust Vacation Club, No. CIV-S-00-1496, 2001 WL 1825832, at *4 (E.D. Cal. Dec 21, 2001) (plaintiff had standing who alleged that she "would, could and will return to the [hotel] . . . when it is made accessible to persons with disabilities," she had a history of travel to the area, and she had particular reasons for seeking accommodation at the hotel); Access Now, Inc. v. South Florida Stadium Corp., 161 F. Supp.2d 1357, 1364 (S.D. Fla. 2001) (plaintiff who testified that he would return to stadium, particularly if the alleged barriers were removed, had standing); Access 123 v. Markey's Lobster Pool, Inc., No. CIV. 00-382-JD, 2001 WL 920051, at *3 (D.N.H. Aug. 8, 2001) (plaintiff had standing when he was aware of barriers in accessing restaurant from parking lot, barriers had not been removed when complaint was filed, and he stated "he would return to [the restaurant] if the barriers were removed"); Ass'n. for Disabled Americans v. Claypool Holdings, No. IPOO-0344-C-T/G, 2001 WL 1112109, at *20 (S.D. Ind. Aug. 6, 2001) (plaintiff had standing who "expressed a desire to stay overnight at the Embassy Suites on future visits to Indianapolis if the hotel were ADA compliant" and who presented evidence that he traveled to Indianapolis at least once a year); Dudley v. Hannaford Bros. Co., 146 F. Supp.2d 82, 86 (D. Me. 2001) (plaintiff had standing who alleged that Shop `n Save refused to sell him alcohol based on his disability and had not altered its policies, and who alleged that he often visited Shop `n Save stores and would like to purchase alcohol but had not attempted to do so based on his past experience); Parr v. L & L Drive-Inn Restaurant, 96 F. Supp.2d 1065, 1080 (D. Haw. 2000) (holding after bench trial that plaintiff had standing to bring claim against fast-food restaurant in part because the court was satisfied that Plaintiff's intent to return [was] sincere"); Colorado Cross Disability Coalition v. Hermanson Family Ltd. Partnership I, No. Civ.A. 96-WY-2490-AJ, et al., 1997 WL 33471623, at *6 (D. Cob. Aug. 5, 1997) (plaintiff has standing if he shows that "discrimination on the basis of disability has deprived him of the ability to gain access to the public accommodations and that a failure to redress the injury will continue to deprive him of access to those facilities in the future").*fn4

Defendant argues that Levine and Zames' statements that they intend to return to the Trump Building are the type of "some day intentions" that the Court held were insufficient to confer standing in Lujan v. Defenders of Wildlife, 405 U.S. 55 (1992). In Defenders of Wildlife, a plaintiff environmental group challenged a rule that limited § 7 of the Endangered Species Act of 1973 to actions within the United States or on the high seas, and sought an injunction, requiring the Secretary of the Interior to promulgate a new regulation. Id. at 557-59. To establish an injury in fact, the environmental group submitted affidavits of two of its members who both described past experiences of observing endangered species in Egypt and Sri Lanka, and stated their intent to return. Id. at 563-64. The Court held that "[s]uch `some day' intentions — without any description of concrete plans, or indeed even any specification of when the someday will be — do not support a finding of the `actual or imminent' injury that our cases require." Id. at 564.

Levine and Zames' statements that they would return to Jean Georges but for the barriers to access are not the type of "some day" intentions rejected in Defenders of Wildlife. See Friends of the Earth, Inc. v. Laidlaw Environmental Services (TOC), Inc., 528 U.S. 167, 184 (2000) ("Nor can the affiants' conditional statements — that they would use the nearby North Tyger River for recreation if [the plant] were not discharging pollutants into it — be equated with the speculative `"some day" intentions' to visit endangered species halfway around the world that we held insufficient to show injury in fact in [Defenders of Wildlife]."). Levine and Zames' desire to return to Jean Georges is plausible given the fact that they live in New York and have been to the restaurant in the past.

The present case differs also from City of Los Angeles v. Lyons, 461 U.S. 95, 102 (1983), where the Court held that a plaintiff who had been subjected to a choke hold by the Los Angeles police lacked standing to seek an injunction against the enforcement of a police choke hold policy. The Court said that "Lyons' standing to seek the injunction requested depended on whether he was likely to suffer future injury from the use of the chokeholds by police officers," id. at 105, and the Court found that there was not a sufficient likelihood of future injury to support standing, id. The Court stated that "` [p]ast exposure to illegal conduct does not itself show a present case or controversy regarding injunctive relief . . . if unaccompanied by any continuing, present adverse effects.'" Id. at 102 (quoting O'Shea v. Littleton, 414 U.S. 488, 495-96 (1974)). However, in the present case, as in Laidlaw, the alleged violation had the ongoing adverse effect of deterring the plaintiffs from visiting a place they would otherwise like to go.

Defendant relies on several cases where courts have considered suits by deaf plaintiffs against hospitals for failure to provide sign language interpreters in emergency rooms and found that the plaintiffs lacked standing to bring claims under Title III of the ADA because there was not a sufficient likelihood that they would return to the hospital for emergency care and face the same problem again. See Constance v. State Univ. of N.Y. Health Sci. Ctr., 166 F. Supp.2d 663, 667 (N.D.N.Y. 2001); Freydel v. N.Y. Hosp., No. 97 Civ. 7926, 2000 WL 10264, at *3 (S.D.N.Y. Jan. 4, 2000); Naiman v. N.Y. Univ., No. 97 Civ. 6469, 1997 WL 249970, at *5 (S.D.N.Y. May 13, 1997); Proctor v. Prince George's Hosp. Ctr., 32 F. Supp.2d 830, 833 (D. Md. 1998); Schroedel v. N.Y. Univ. Med., 885 F. Supp. 594, 599 (S.D.N.Y. 1995). Those cases are more closely analogous to Lyons than the present case. A person generally does not desire or intend to receive emergency room treatment, just as Lyons did not desire or intend to be arrested. In the present case, if Levine's and Zames' statements are credited, the alleged ADA violation injures them by deterring them from going to a place they would like to visit. Deaf persons could be injured again by emergency room personnel only if they had to return to the hospital for emergency treatment — an uncertain event. Likewise, Lyons could be injured again by the police only if he was arrested again — also an uncertain event. In those cases, unlike in the present case, there is no plausible ongoing injury.

Levine and Zames encountered the alleged wheelchair lift violation before they filed their complaint, and they have said that they would return to the Trump Building but for the fact that the lifts do not provide unassisted access. They have stated sufficient facts supporting an "actual injury" to survive summary judgment on this issue. Whether Levine and Zames actually do wish to eat at Jean Georges and actually are deterred from going there because they have to ask for help with the lifts cannot be decided on a motion for summary judgment. See Access Now, Inc. v. South Florida Stadium Corp., 161 F. Supp.2d 1357, 1364 (S.D. Fla. 2001) (court would not make a credibility determination on a motion for summary judgment as to the sincerity of the plaintiff's statement that he wanted to return to stadium).

To establish the injury-in-fact requirement for standing, in addition to showing "actual or imminent" injury, plaintiffs must show that their injury is "concrete and particularized." "By particularized, we mean that the injury must affect the plaintiff in a personal and individual way." Defenders of Wildlife, 504 U.S. at 560 n. 1; see also Pickern, 293 F.3d at 1137-38. Courts have held that plaintiffs bringing ADA claims to remove barriers to access have standing to challenge only those violations affecting their particular disabilities. See, e.g., Steger, 228 F.3d at 893; Ass'n for Disabled Americans, 2001 WL 1112109, at *21; Access 123, 2000 WL 920051, at *3. Levine's disability requires him to use a wheelchair; Zames' requires her to use a motorized scooter. Inability to use the lifts independently affects their particular disabilities. Thus, they have met the "concrete and particularized" requirement for standing. Because Levine and Zames also have showed that their injury is "fairly traceable to the defendant's allegedly unlawful conduct and likely to be redressed by the requested relief, " Allen v. Wright, 468 U.S. 737, 751 (1984), they have met, at least at this stage of the litigation, the Constitution's requirements for standing.

However, defendant argues that even if plaintiffs have met the Constitution's standing requirements, this court should find standing lacking as a prudential matter. Defendant argues that finding plaintiffs have standing would mean that "any disabled individual or organization, on a mere wish, would be authorized to sue any public accommodation for barrier removal resulting in a deluge of piecemeal federal ADA litigation. (Def.'s Reply Mem. at 2-3) According to defendant, "[t]his court need not create a private attorney general for ADA enforcement since the ADA already empowers the Attorney General to sue for broad relief." (Id. at 3)

"Standing doctrine embraces several judicially self-imposed limits on the exercise of federal jurisdiction, such as the general prohibition on a litigant's raising another person's legal rights, the rule barring adjudication of generalized grievances more appropriately addressed in the representative branches, and the requirement that a plaintiff's complaint fall within the zone of interests protected by the law invoked." Allen v. Wright, 468 U.S. 737, 751 (1984); see also Bennett v. Spear, 520 U.S. 154, 162 (1997); United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 557 (1996). None of these prudential principles apply to bar the claims of Levine and Zames. As disabled persons, Levine and Zames are asserting their own rights. Their complaints are particular to them and not "generalized grievances." Finally, they are plainly within the "zone of interests" protected by the ADA: Congress, by creating a private right of action for disabled people subject to barriers to access intended these people to be able to sue.

2. Standing of DIA

Defendant argues that DIA lacks standing to sue on behalf of its members. An association has standing to sue on behalf of its members when at least one of its members has standing to sue in his own right, the interests at stake are germane to the organization's purpose, and neither the claim asserted nor the relief requested requires the participation of individual members in the lawsuit. See United Food and Commercial Workers Union Local 751 v. Brown Group, Inc., 517 U.S. 544, 552-53 (1996); Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 (1977). The Supreme Court has held that the third prong of this test is a prudential, not a constitutional, requirement. United Food, 517 U.S. at 557.

In this case, DIA's claim merely repeats the claims of Levine and Zames, who are already plaintiffs in this case, and who seek the same injunctive relief as DIA. The participation of Levine and Zames will be necessary at trial to determine whether they have standing under the higher burden of proof. Levine and Zames are the better plaintiffs here, and there is no reason for an organization to assert their rights for them. See Access 123, Inc. v. Markey's Lobster Pool, Inc., 2001 WL 920051, at *4 (D.N.H. Aug. 14, 2001) ("In this case, Access 123 is merely repeating the claims brought by Muehe, himself. Muche appears to be the better party to assert his own claims. Therefore, Access 123 lacks standing to assert claims on Muehe's behalf, and lacks standing to assert claims on behalf of its other members."); see also Ass'n for Disabled Americans v. Claypool Holdings, No. IPOO-0344-C-T/G, 2001 WL 1112109, at *20 (S.D. Ind. Aug. 6, 2001). DIA is dismissed as a plaintiff as to this claim.

C. Notice Requirement

Defendant argues that under Title III, plaintiffs must notify the appropriate state or local agency 30 days before filing suit and exhaust their administrative remedies prior to filing suit in federal court. Defendants assert that plaintiffs have not given the appropriate notice and have not pursued or exhausted their administrative remedies. (Def.'s Mem. at 22) Plaintiffs deny that Title III requires notice to state or local agencies or exhaustion of administrative remedies.

In Hunt v. Meharry Medical College, No. 98 Civ. 7193, 2000 WL 739551, at *5 (S.D.N.Y. June 8, 2000), this court held that a plaintiff was not required to notify state or local authorities before filing his Title III claim in federal court. Under 42 U.S.C. § 12188 (a)(1), Title III's "remedies and procedures" are "the remedies and procedures set forth in [42 U.S.C.] section 2000a-3(a)," and although § 2000a-3(c) requires prior notice, § 2000a-3(a) does not. Compare 42 U.S.C. § 2000a-3 (c) (describing notice requirement) with 42 U.S.C. § 2000a-3 (a) (not mentioning a notice requirement). Although several district courts have stated that notice is required, see Daigle v. Friendly Ice Cream Corp., 957 F. Supp. 8, 9 (D.N.H. 1997); Howard v. Cherry Hill Cutters, Inc., 935 F. Supp. 1148, 1050 (D. Colo. 1996), the only Circuit that has considered the issue reached the opposite conclusion, see Botosan v. Paul McNally Realty, 216 F.3d 827, 832 (9th Cir. 2000) ("The plain language of § 12188(a)(1) is clear and unambiguous, and it can be understood without reference to any other statutory provision. Section 12188(a)(1) is devoid of any reference to § 2000a-3(c) Yet, Congress explicitly incorporated subsection (a) of § 2000a-3 into § 12188(a)(1). The incorporation of one statutory provision to the exclusion of another must be presumed intentional under the statutory canon of expressio unius."). Other district courts in this Circuit have concluded that no notice is required before bringing a Title III ADA claim. See Stan v. Wal-Mart Stores, Inc., 111 F. Supp.2d 119, 123 (N.D.N.Y. 2000); Mirando v. Villa Roma Resorts, Inc., No. 99 Civ. 0162, 1999 WL 1051118, at *1 (S.D.N.Y. Nov. 19, 1999). Plaintiffs were not required to notify state or local authorities prior to filing this suit.

Defendant appears to argue that in addition to giving notice to state or local authorities, plaintiffs must "exhaust their administrative remedy prior to filing suit." (Def.'s Mem. at 22) Some courts have used the term "exhaustion" to refer to giving notice to state and local authorities. See, e.g., Stan, 111 F. Supp.2d at 123; Howard, 935 F. Supp. at 1050. To the extent that defendant is arguing that there is some additional exhaustion requirement, defendant cites no authority supporting such a requirement.

D. Mootness and Merits of Claim

Defendant recognizes that under the ADA regulations, wheelchair lifts must be key operated and that the lifts must facilitate unassisted entry, operation, and exit. (Def.'s Mem. at 18)*fn5 According to defendant, before October 12, 2001, it satisfied its obligations by "stationing lift-key bearing doormen at or near each lift to unlock lifts for utilization by wheelchair users." (Id.) Defendant argues that as of October 12, 2001, it has further facilitated unassisted access by installing permanently fixed keys at each lift lock. (Id. at 19) Defendant says that any claim that plaintiffs had that the previous key system violated the ADA is moot because now "permanently fixed keys exist at each lock to allow self-operation by users." (Id. at 21)

The Supreme Court in Laidlaw stated: "[T]he standard we have announced for determining whether a case has been mooted by the defendant's voluntary conduct is stringent: `A case might become moot if subsequent events made it absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Laidlaw, 528 U.S. at 189 (quoting United States v. Concentrated Phosphate Export Ass'n, 393 U.S. 199, 203 (1968)). "[A] defendant claiming that its voluntary compliance moots a case bears the formidable burden of showing that it is absolutely clear that the allegedly wrongful behavior could not reasonably be expected to recur." Laidlaw, 528 U.S. at 190.

Even assuming that it is absolutely clear that the fixed key system will remain and defendant will not return to relying solely on the doormen to provide keys, plaintiffs' claim regarding the lifts still has not become moot.

Levine and Zames allege that when they went to the Trump Building on December 21, 2001, they were unable to independently operate either lift. They claim that they tried all combinations of buttons and key-turns but were unable to move the lifts without asking for assistance. (Levine Aff. ¶¶ 10-12; Zames Aff. ¶¶ 8-10) Hanrahan, the architect retained by the plaintiffs, visited the Trump Building on January 9, 2002, and also was unable to access the lift from the sidewalk level. (Hanrahan Aff. ¶¶ 9-12) The statements of Levine, Zames, and Hanrahan, if credited, show that people in wheelchairs have not been able to use the lifts unassisted, despite the fixed key system. Taking these statements as true, defendant has failed to show that the fixed key system has mooted plaintiffs' claim regarding the lifts.

Defendant is not entitled to summary judgment on the merits of this claim. The regulations provide that wheelchair lifts may be used as part of an accessible route into a building if they comply with ADAN 4.11. See 28 C.F.R. Pt. 36, app. A, ADAAG 4.1.6(3)(h). ADAAG 4.11.3 provides that lifts "shall facilitate unassisted entry, operation, and exit from the lift." Id. 4.11.3. Defendant correctly points out that the regulations do not prohibit any assistance in operating lifts, but rather require only that the lifts "facilitate" unassisted access and operation. (Def.'s Mem. at 19) However, plaintiffs have stated sufficient facts to preclude summary judgment on the issue of whether the lifts are facilitating such independent access.

Only one other district court has addressed the requirement under the ADA regulations that wheelchair lifts facilitate unassisted access. See Delil v. El Torito Restaurants, Inc., No. C 94-3900-CAL, 1996 WL 807395 (N.D. Cal. Dec. 2, 1996). In that case, the plaintiff brought a claim against the El Torito restaurant arguing that El Torito's policy regarding access to its wheelchair lift violated the ADA. The lift provided access from the entrance level of the restaurant to the lower level dining area. El Torito claimed that it kept the lift's operating controls locked to prevent children from tampering with the lift and to avoid children being caught under the lift. Id. at *1. The plaintiff said that after she was unable to operate the lift herself she asked a hostess for assistance. The hostess found the manager who had a key to the lift. The plaintiff claimed that the manager refused to give her the key and told her that he was the only one allowed to operate the lift. El Torito disputed the plaintiff's claim that she was not allowed to take the key and operate the lift by herself. Id.

The Court denied summary judgment to El Torito, finding that there was a disputed issue of material fact as to whether El Torito prohibited the plaintiff from using the lift without assistance. Id. at *6. The Court noted that under ADAAG 4.11 the lift had to comply with the ASME Safety Code. Under this code all lifts must be key-operated, and the Court concluded that the purpose of this requirement was to prevent injury from unauthorized use of the lifts. The Court said that the ADA did not require the restaurant to leave a key in the lock of the lift. However, the Court said that the regulations did require El Torito to facilitate unassisted entry, operation, and exist from the lift, and "El Torito could make it easy for disabled patrons to operate the lift by themselves without noticeably increasing the risk of injury from unauthorized use, for example by using child-proof locks or by giving all wheelchair-bound patrons a key to the lift when they first enter the restaurant." Id. The Court said that it expressed "no opinion whether requiring a disabled patron to ask for a key in order to operate the lift violates the ADA." Id. at *6 n. 4.

The circumstances in this case differ somewhat from the Delil case. In the present case, plaintiffs' current problem is that the lifts could not be operated independently, even with a key. Even with the fixed key system in place, Levine and Zames were both unable to take either lift from the sidewalk level to the plaza level without asking a doorman for assistance. Hanrahan was able to take a lift from the plaza to the sidewalk level without assistance, but was unable to take either lift from the sidewalk to the plaza. Based on these statements, and without any evidence of unassisted use of the lifts by restaurant patrons in the record, I cannot conclude that the fixed key system is actually facilitating unassisted access as required by the ADA. Therefore, defendant is not entitled to summary judgment on this issue. I express no view at this time as to whether using a fixed key system complies with the 1990 ASME Safety Code.

Because the federal ADA claim has not been dismissed, this court retains jurisdiction over the plaintiffs' claims under state and local law.*fn6

III.

Defendant moves to dismiss, pursuant to Fed.R.Civ.P. 12(b)(6) and/or 12(c), plaintiffs' claim that other ADA violations exist at the Trump Building. The only specific violation plaintiffs describe in their complaint is that the lifts at the Building bar independent access for wheelchair and scooter users. (Compl. ¶ 8) 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." (Compl. ¶ 9 (citing 28 C.F.R. pt. 36 App. A; 42 U.S.C. § 12183 (a)(2); 28 C.F.R. § 36.402, 36.404))

Plaintiffs describe in their memorandum in opposition to defendant's motion violations that they claim exist or may exist. In particular, they argue that large, lever-like keys are required in the lifts, signage must be placed on the lifts to identify them, and signage must be placed also at the entrances to the Building to direct wheelchair users to the lifts. (Pls.' Mem. at 7) Plaintiffs argue that unless defendant show it is "technically infeasible" to do so, defendant must place a lift on the east side entrance to the Trump Building and also integrate a lift into the main entrance on the west side of the building. Finally, plaintiffs argue that if any of the entrances to the Building before it was renovated were accessible by ramp or elevator, then the alterations would violate the ADA because they would have decreased the accessibility of the building. Plaintiffs argue that they need to conduct discovery in order to see whether the use of the lifts is permissible under the ADA.

"A claim for relief "may not be amended by the briefs in opposition to a motion to dismiss.'" Telectronics Proprietary, Ltd. v. Medtronic, Inc., 687 F. Supp. 832, 836 (S.D.N.Y. 1988) (quoting Car Carriers. Inc. v. Ford Motor Co., 745 F.2d 1101, 1107 (7th Cir. 1984)). Plaintiffs have not moved to amend their complaint to add these factual allegations regarding particular violations, and they cannot do so through their memorandum. In considering this motion to dismiss, I am limited to consideration of the factual allegations in the complaint. See Paulemon v. Tobin, 30 F.3d 307, 308-09 (2d Cir. 1994)

Plaintiffs have attached several affidavits to their opposition memorandum, which provide evidence supporting claims of additional ADA violations at the Trump Building. However, considering matters extrinsic to the pleadings converts a motion to dismiss to a motion for summary judgment. Plaintiffs have not obtained discovery from defendant related to their claims and thus their claims are not ripe for summary adjudication. See Hellstrom v. U.S. Dept. of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000). If the parties have adequate notice, a motion to dismiss may be converted to a motion for summary judgment if the issues to be resolved on summary judgment are "discrete and dispositive." AdiPar Ltd. v. PLD Intern. Corp., No. 01 Civ. 0765, 2002 WL 31740622, at *4 (S.D.N.Y. Dec. 6, 2002); 2 James Wm. Moore et al., Moore's Federal Practice ¶ 12.34 [3] [a] (3d ed. 1999). This is not such an instance.

Defendant argues that although the pleading standard is a liberal one, bald assertions and conclusions of law do not suffice to defeat a motion to dismiss. (Def.'s Mem. at 5)

A plaintiff's statement under Federal Rule of Civil Procedure 8(a)(2) "must simply "give the defendant fair notice of what the plaintiff's claim is and the grounds upon which it rests.'" Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (quoting Conley v. Gibson, 355 U.S. 41, 47 (1957)). Plaintiffs' complaint contains no factual assertions whatsoever regarding what features of the Trump Building, other than the wheelchair lifts, violate the ADA. Plaintiffs' statement did not put defendant on notice as to these "other" violations and therefore the claim is dismissed.

For the reasons stated above, defendant's motion for summary judgment as to the wheelchair lift claim is denied, and plaintiffs' claim regarding other violations at the Trump Building is dismissed.


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