The opinion of the court was delivered by: Lindsay, Magistrate Judge
Before the court are cross-motions for motion for summary judgment pursuant to Fed. R. Civ. P. 56 on plaintiff Lisa Panzica's claims against the defendants under the Americans with Disabilities Act ("ADA") and related states statutes. The parties have consented to the undersigned exercising plenary jurisdiction over this action pursuant to 28 U.S.C. § 636 (c). For the reasons set forth below, the plaintiff's motion is denied and the defendants' motion is granted.
Plaintiff, Lisa Panzica, commenced this putative class action on May 27, 2005 pursuant to Title III of the Americans with Disabilities Act, 42 U.S.C. § 12182, the New York Human Rights Law, N.Y. Exec. Law § 296(2), and the New York Civil Rights Law, §§ 40-c and 40-d, which prohibit disability discrimination in places of public accommodation. Plaintiff, who suffers from Spinal Atrophy requiring her to use a wheelchair, alleges that the defendants Mas-Maz, Inc., d/b/a Cornerstone Pub & Restaurant ("Cornerstone" or "the restaurant") and Jane Massaro ("Massaro") (together, "the defendants") violated these laws in failing to make the restaurant accessible to wheelchair-bound patrons. (Compl. at ¶ 12).
The property at issue, 288 Jericho Turnpike, Mineola, New York, 11501, was owned by defendant Massaro from November 1997 until January 2006. (Defs' Rule 56.1 Statement at ¶ 1, Massaro Aff. at ¶ 2). Defendant Mas-Maz, Inc., d/b/a Cornerstone Pub & Restaurant, has operated the Cornerstone at that location since 1989. (Massaro Aff. at ¶ 4).
In September 2004, the plaintiff drove to the Cornerstone together with her companion, Randy Brodsky, and parked alongside the curb on Jericho Turnpike directly in front of the restaurant's front entrance. (Panzica Dep. at 16). From her vehicle, the plaintiff observed an approximately seven to ten inch high step at the entrance to the restaurant and that the handle on the door was at an "inappropriate" height. (Id. at 16-17, 20, 63-64; Panzica Aff. at ¶5). Plaintiff also claims to have observed from her vehicle and through a window that the tables and bar stool-type chairs inside the restaurant appeared elevated and would therefore be inaccessible to her. (Panzica Aff. at ¶6). Believing that she would be unable to enter the establishment, the plaintiff drove off without exiting her vehicle or attempting to determine if there was an alternate entrance. (Panzica Dep. at 17-18). Had she or her companion done so, the plaintiff would have realized that there was a ramped side door to the restaurant providing handicapped access. Defs' 56.1 Statement at ¶ 18; Pl's Response and Objections to Defs' 56.1 Statement at ¶ 19-21). In addition, there was a doorbell located at the side door for use in the event an individual required assistance entering the restaurant. (Pl's Response and Objections to Defs' 56.1 Statement at ¶ 19-21; Mazzella Aff. at ¶ 7). Nevertheless, the plaintiff filed her complaint in May, 2005 alleging that architectural barriers within and around the restaurant denied her access to the restaurant and deterred her from entering.
Plaintiff did not return to the Cornerstone until March 20, 2006 which she did in her capacity as a litigant pursuant to a Notice of Inspection. (Panzica Aff. at ¶ 4). Based on this inspection, the plaintiff concluded that the front and side entrances and the men's and women's bathrooms have architectural barriers and are noncompliant with the Americans with Disabilities Act Accessibility Guidelines ("ADAAG"). The plaintiff's expert, Carlos Rivera, inspected the restaurant on June 13, 2006 and found in addition to the areas identified by the plaintiff, a 3/4 inch elevation between the floors in the main bar area and an adjacent recreation room which he claimed does not comply with the ADAAG.
II. Panzica's Claim of Disability Discrimination
Panzica claims that she was discriminated against on the basis of her disability in violation of the Americans with Disabilities Act ("the ADA"), 42 U.S.C. §§ 12181 et seq.; the New York State Human Rights Law (the "NYSHRL"), N.Y. Executive Law § 296 (McKinney's 2005); and the New York Civil Rights Law, §§ 40-c and 40-d.*fn1 The ADA provides a private right of action only for injunctive relief. 42 U.S.C. § 12188 (a). While damages are not available, a successful plaintiff may be entitled to an award of reasonable attorney's fees and costs. Id.
To begin with, the court addresses the defendants' challenge to the plaintiff's standing to maintain this action. According to the defendants, the plaintiff lacks standing because she had suffered no injury-in-fact at the time she filed her complaint. (Defs. Mem. at 8). The court agrees.
"Federal courts have an obligation to ensure that standing exists and should resolve questions of Article III jurisdiction before reaching the merits of a plaintiff's claim." Roe v. Johnson, 334 F. Supp.2d 415, 420 (S.D.N.Y. 2004), citing N.Y. Pub. Interest Research Group v. Whitman, 321 F.3d 316, 324-25 (2d Cir. 2003); LaFleur v. Whitman, 300 F.3d 256, 268 (2d Cir. 2002). Under Article III, § 2 of the Constitution, the federal courts have jurisdiction over a dispute only if there is an actual "case" or "controversy." Raines v. Byrd, 521 U.S. 811, 117 S.Ct. 2312 (1997). "One element of the case-or-controversy requirement is that [the plaintiff], based on [her] complaint, must establish that [she] has standing to sue." Id. at 818, 117 S.Ct. 2317, citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 561, 112 S.Ct. 2130, 2136-37 (1992) (plaintiff bears the burden of establishing standing). Article III standing requires, inter alia, that 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." Lujan, 504 U.S. at 560-561. The injury-in-fact element is determined by the facts in existence at the time the plaintiff filed the lawsuit. Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 U.S. 167, 170, 120 S.Ct. 693 (2000); Small v. General Nutrition Companies, Inc., 388 F. Supp.2d 83, 86 (E.D.N.Y. 2005). To meet the "concrete and particularized" prong of the injury-in-fact element, "the injury must affect the plaintiff in a personal and individual way." Lujan, 504 U.S. at 560 n. 1, 112 S.Ct. 2130; Roe, 334 F. Supp.2d at 420.
In the ADA context, a plaintiff suffers an injury-in-fact if she personally encounters the barrier to access complained of, or she has actual knowledge of the barrier complained of and has been deterred from visiting the public accommodation because of that barrier. Disabled in Action of Metropolitan New York v. Trump International Hotel & Tower, No. Civ. 01-5518 (MBM), 2003 WL 1751785, at *7 (S.D.N.Y. April 2, 2003).
In this case, it is undisputed that there was a ramped handicapped accessible side entry which plaintiff simply failed to notice when she visited in September 2004. It is also undisputed that the Cornerstone is located on a corner and the front and side entrances each face a public street suggesting that had the plaintiff simply turned the corner, she would have seen this side entrance. Thus, at the point plaintiff filed her discrimination complaint it was based on her mistaken subjective belief that she was denied entry because there was no handicapped accessible entryway.*fn2 As such, plaintiff's claimed injury was not factually correct making it impossible for the court to conclude that she suffered an injury-in-fact. Los Angeles v. Lyons, 461 U.S. 95, ...