The opinion of the court was delivered by: Kenneth M. Karas, District Judge
Plaintiffs Access 4 All, Inc. and Peter Spalluto bring this action under Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. §§ 12181-12189, for a declaratory judgment, an injunction requiring all readily achievable alterations mandated by the ADA, and attorneys' fees. Defendant Trump International Hotel and Tower Condominium moves to dismiss or, in the alternative, for summary judgment. For the reasons stated herein, this motion is DENIED in part and GRANTED in part.
For the purposes of this motion, the Court assumes the following of the Plaintiffs' allegations are true. Plaintiff Access 4 All, Inc., ("Access 4 All") is a non-profit Florida corporation that seeks to represent the interests of disabled persons and ensure that disabled persons are not discriminated against because of their disabilities. (Am. Compl. ¶ 11) Plaintiff Peter Spalluto ("Spalluto"), a Florida resident and member of Access 4 All, is a quadriplegic who uses a wheelchair for mobility. (Id. ¶ 12; Aff. of Peter Spalluto ¶ 1 ("First Spalluto Aff.")) Defendant Trump International Hotel and Tower Condominium ("Trump Tower") is an unincorporated association of owners of private, residential, hotel, and commercial units in a building located at 59th Street and Central Park West in New York City. (Def.'s Brief in Supp. of its Mot. to Dismiss and for Summ. J. 1 ("Def.'s Br."))
The Amended Complaint alleges that Defendant discriminated against Plaintiffs by denying them access to, and equal enjoyment of, the goods, services, facilities, and privileges available to non-disabled persons at Trump Tower. Specifically, Plaintiffs allege that on July 22, 2004, Spalluto went to Trump Tower, staying overnight at the facility's hotel. (Am. Compl. ¶ 12; First Spalluto Aff. ¶ 4) Spalluto alleges that he found the facility inaccessible, as it lacked sufficient space for wheelchair entry, accessible room controls, and a "roll-in shower," (First Spalluto Aff. ¶ 4), and that this lack of accommodation endangered his safety. (Am. Compl. ¶ 13) Spalluto states he has family in New York, travels to New York City often on business (over 15 trips in the last three years), and has a definite intention to return to Trump Tower. (First Spalluto Aff. ¶¶ 2-3, 5; Am. Compl. ¶ 17) Spalluto also states that, at the time of his affidavit, he had planned three additional business trips to New York and that he planned to visit the restaurants and shops at Trump Tower, specifically, Jean Georges. (First Spalluto Aff. ¶¶ 2, 5)
In addition to the alleged discriminatory facilities Spalluto encountered on his visit to Trump Tower, Plaintiffs also allege 34 violations of the ADA Accessibility Guidelines. (Am. Compl. ¶ 19) These violations were noted by an ADA compliance expert hired by Plaintiffs who inspected the facilities at Trump Tower and reported his findings to Plaintiffs' counsel by letter dated August 22, 2003. (Affirmation of Gregory R. Begg, Esq., in Supp. of Def.'s Mot. to Dismiss ("Begg Aff.") Ex. C)
1. Treating Defendant's Motion as a Motion for Summary Judgment
Defendant brings this Motion to Dismiss under Federal Rule of Civil Procedure 12(b)(6), but also argues that the Court should consider matters outside the pleadings and thereby convert its motion into a Motion for Summary Judgment under Rule 56. Plaintiffs, in their reply papers and at oral argument, treat the Motion primarily as one for Summary Judgment and also ask the Court to consider affidavits and exhibits that were not attached to or incorporated by the Amended Complaint, notably, the Spalluto Affidavit. (Pls.' Resp. to Def.'s Mot. to Dismiss and for Summ. J. 4-6 ("Pls.' Reply")) When evaluating the legal viability of a complaint on a motion to dismiss, courts must "confine [their] consideration 'to facts stated on the face of the complaint, in documents appended to the complaint or incorporated in the complaint by reference, and to matters of which judicial notice may be taken.'" Leonard F. v. Israel Disc. Bank of N.Y.,199 F.3d 99, 107 (2d Cir. 1999) (quoting Allen v. West Point-Pepperell, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). When a court ruling on a motion to dismiss considers matters outside the pleadings, it is required to convert the motion from a Rule 12(b)(6) motion to dismiss into a Rule 56 motion for summary judgment. See Global Network Commc'ns, Inc. v. City of New York, 458 F.3d 150, 155 (2d Cir. 2006).*fn1 This is because the purpose of a Rule 12(b)(6) motion is to test the "legal feasibility of the complaint," not the weight of the evidence that might be offered to support it. Id. When the parties ask the Court to weigh evidence outside of the pleadings and thereby test the merits of the evidence, not the complaint, such action is "more appropriately reserved for the summary judgment procedure, governed by Rule 56, where both parties 'may conduct appropriate discovery and submit the additional supporting material contemplated by' that rule." Id. (quoting Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002)).
Normally, summary judgment is inappropriate before the parties have had an opportunity for discovery. See Hellstrom v. U.S. Dep't of Veterans Affairs, 201 F.3d 94, 97 (2d Cir. 2000); Disabled in Action of Metro. N. Y. v. Trump Int'l Hotel & Tower, No. 01 Civ. 5518, 2003 WL 1751785, at *14 (S.D.N.Y. Apr. 1, 2003) ("Plaintiffs have not obtained discovery from defendant related to their claims and thus their claims are not ripe for summary adjudication."). When only one party seeks to convert a motion to dismiss into a motion for summary judgment prior to discovery by offering additional exhibits and affidavits outside the pleadings, a court may simply disregard any such submissions and decide the motion to dismiss on the merits of the pleadings alone. See Disabled in Action, 2003 WL 1751785, at *14 (disregarding factual allegations submitted in affidavits but not included within the original amended complaint). However, a court may convert a motion to dismiss into a motion for summary judgment, and thus consider the external exhibits and affidavits, when it is "satisfied that the parties are not taken by surprise or deprived of a reasonable opportunity to contest facts averred outside the pleadings" and the issues involved are "discrete and dispositive." Adipar Ltd. v. PLD Int'l Corp., No. 01 Civ. 0765, 2002 WL 31740622, at *4 (S.D.N.Y. Dec. 4, 2002).
When a non-moving party is put on notice by the moving papers of its
opponent and submits its own exhibits and affidavits in its response
papers, it cannot claim to be caught by surprise. See Kennedy v.
Empire Blue Cross and Blue Shield, 989 F.2d 588, 592 (2d Cir. 1993);
Adipar, 2002 WL 31740622, at *4. Here, both parties treat the motion
primarily as one for summary judgment, and both parties seek to have
the Court consider statements, documents, and affidavits that were not
included in, attached to, or incorporated by the Amended Complaint.
(See Def.'s Br. 4-5; Pls.' Reply 3) Plaintiffs, the non-moving party,
rely heavily on the Spalluto Affidavits in their response to
Defendant's motion. The First Spalluto Affidavit was attached to the
Plaintiffs' Reply Brief, not the Amended Complaint, while the Second
Spalluto Affidavit accompanied Plaintiffs' Sur-Reply.*fn2
Thus, there is no risk that Plaintiffs will be unfairly
surprised by the conversion of this motion into a motion for summary
judgment, particularly here, where the Court denies in part
Defendant's motion. See Kennedy, 989 F.2d at 592.
Additionally, the issues raised by Defendant are "discrete and dispositive" and therefore ripe for summary judgment. Defendant primarily challenges the standing of both Plaintiffs to sue under both the ADA and Article III. Standing is certainly a dispositive issue, as a failure to adequately plead standing will result in a dismissal for lack of jurisdiction. See, e.g., St. Pierre v. Dyer, 208 F.3d 394, 400 (2d Cir. 2000). In this instance, it is also discrete. Courts have refused to convert a motion to dismiss into a motion for summary judgment where the issues were "broad," "at the heart of the litigation," and where "there is substantial overlap between the evidence that is relevant to them and the evidence that would likely be submitted as to other aspects of the case." S.E.C. v. Simonsen, No. 96 Civ. 9695, 2000 WL 781084, at * 1 (S.D.N.Y. June 19, 2000). In Simonsen, the court was ruling on both a motion to dismiss and a cross-motion for summary judgment. Id. Here, Plaintiffs have not cross-moved for summary judgment. Thus, in this case the Court need not decide whether Plaintiffs have standing; the issue is simply whether or not the allegations in the Amended Complaint and the supporting affidavits allege sufficient facts to support a jury verdict in Plaintiffs' favor on the question of standing. See R. C. Bigelow, Inc. v. Unilever, N.V., 867 F.2d 102, 107 (2d Cir. 1989) ("Simply stated, in this case we therefore must determine whether plaintiff has raised a genuine issue of material fact sufficient to show a threat of [injury]." (citing Brunswick Corp. v. Pueblo Bowl-OMat, Inc., 429 U.S. 477, 489 (1977))); accord Cent. Delta Water Agency v. United States, 306 F.3d 938, 947 (9th Cir. 2002)("[A]t the summary judgment stage the plaintiffs need not establish that they in fact have standing, but only that there is a genuine question of material fact as to the standing elements."); cf. Steel Co. v. Citizens for a Better Env't, 523 U.S. 83, 104 (1998) (stating similar proposition in the context of a Federal Rule of Civil Procedure 12(b) motion to dismiss). This issue is sufficiently discrete for the Court to convert Defendant's Motion into a Motion for Summary Judgment. See Adipar Ltd., 2002 WL 31740622, at *4 (holding legal viability of claim and effect of vacatur of order of attachment are discrete and dispositive).
2. Motion for Summary Judgment
Summary judgment may be granted where it is shown that there is "no genuine issue of material fact and that the moving party is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(c); accord Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). The court must view the evidence in the light most favorable to the party against whom summary judgment is sought and must draw all reasonable inferences in his or her favor. See United Air Lines, Inc. v. Ins. Co. of the State of Pa., 439 F.3d 128, 130 (2d Cir. 2006). A party seeking summary judgment bears the burden of establishing that no genuine issue of material fact exists. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). "Once the moving party has made a properly supported showing sufficient to suggest the absence of any genuine issue as to a material fact, the nonmoving party, in order to defeat summary judgment, must come forward with evidence that would be sufficient to support a jury verdict in ...