The opinion of the court was delivered by: Thomas J. McAVOY, Senior United States District Judge
This action, which was commenced in the United States District Court for the District of New Jersey and transferred to this Court, see July 6, 2006 Mem. & Ord., p. 6 [Dkt. #7 ], asserts racial discrimination claims pursuant to 42 U.S.C. § 1983 (violation of First Amendment right to association and the Fourteenth Amendment right to equal protection); 42 U.S.C. § 1981 (denial of right to make and enforce contracts and of the equal benefits of law); 42 U.S.C. § 1985(3) (conspiracy to deprive Plaintiffs of the right to make and enforce contracts and of the equal benefits of law); 42 U.S.C. § 1986 (failure to prevent such conspiracy); 42 U.S.C. 2000a, et seq. (denial of access to public accommodations); New York Civil Rights Law §§ 40 and 41 (denial of access to public accommodations); state common law (negligent failure to properly train and supervise restaurant staff to prevent discriminatory conduct); and the New Jersey State Constitution. See dkt. # 1. Plaintiffs seek injunctive relief and monetary damages. Id.
By prior orders, all claims against Defendants "Holiday Inn" and Timothy Brown were dismissed. See July 6, 2006 Mem. & Ord., p. 6;*fn1 Jan. 7, 2008 Order [dkt. # 29].*fn2 Defendants move for summary judgment seeking to dismiss the remaining claims in this action. [Dkt. # 31]. Plaintiffs have opposed the motion. [Dkt. # 37]. The Court has elected to resolve the motion based upon the submissions. For the reasons that follow, the motion is granted in part and denied in part.
The Court will apply the well settled standard for summary judgment as defined by statute, see FED. R. CIV. P. 56(c), case law, see Anderson v. Liberty Lobby, 477 U.S. 242, 248 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986), and this Court's Local Rules. See N.D.N.Y.L.R. 7.1.
Plaintiffs have failed to submit a responsive Local Rule 7.1(a)(3) statement that mirrors the allegations in the Defendants' Local Rule 7.1(a)(3) statement. Thus, the allegations in Defendants' statement are deemed admitted for purposes of this motion. See N.D.N.Y.L.R. 7.1(a)(3).*fn3 Viewing the admissible evidence in the light most favorable to Plaintiffs and drawing all reasonable inferences in their favor, see Abramson v. Pataki, 278 F.3d 93, 101 (2d Cir. 2002), results in the following account.
Plaintiffs, who are both African-American, participated in a ski group bus trip that traveled from Rahway, New Jersey to Binghamton, New York in February 2004. The group stayed at the Holiday Inn ("the Hotel") from February 13, 2004 through February 15, 2004. At the time, Arena Hotel Corporation ("Arena"), which did business as the Holiday Inn in Binghamton, New York, was a licensee to a franchise agreement with Holiday Hospitality Franchising Inc. ("HHFI") and Six Continents Hotels, Inc. ("Six Continents"). Dkt. # 3, Ex. A. HHFI and Six Continents had no control over the day-to-day operations of the Hotel and was a separate and distinct entity from Arena. Dkt. # 3, Ex. C. "It is unclear why plaintiffs named Intercontinental Hotels Group as a defendant, particularly when they were provided with an Affidavit showing that Six Continents Hotels, Inc. and Holiday Hospitality Franchising, Inc. are the proper franchisor parties, and [Plaintiffs] never sought to amend their Complaint." Def. Mem L. p. 13. Plaintiffs have provided no further information on this question. "Although not entirely clear, Vista [Property Management] appears to be an entity connected to the ownership of Arena." July 6, 2006 Mem. & Ord., p. 6 (citing dkt. # 3, Ex. A). From Defendants' submissions on this motion, it appears that Vista is the operational arm of Arena at the Hotel, at least with regard to the operation of the Hotel's restaurant.
The ski trip was run by Eastern Light Getaways. Eastern Light Getaways entered into a contract with the Hotel for a package of accommodations that included hotel rooms for Friday and Saturday night, a "welcome reception" on Friday evening, breakfast on Saturday and Sunday, dinner on Saturday, early dinner on Sunday, an open bar, disc jockey, and use of the Hotel's ballroom and lounge for specified activities during the weekend. See Def. Ex. H. Ski trip patrons paid for their trip in advance so the accommodations, such as the meals, did not have to be paid for at the Hotel. Ski trip patrons were given arm bands to identify them and allow them to receive the agreed-upon accommodations. The Hotel set up the group's meals in the ballroom. Ski trip patrons were allowed to access any other accommodations offered at the Hotel, such as the restaurant, but each patron was responsible for the individual cost of these extras.
The group arrived at the Hotel on Friday evening, February 13, 2004. Plaintiffs checked in, went to their room, and then went to the Hotel's restaurant at approximately 9 P.M. See A. Feacher Dep., p. 19. They were informed by unidentified employees at the restaurant that it was closed. At the time, Plaintiffs saw two Caucasian couples enter and be seated in the restaurant. Id. pp. 19-20, 28-29. Plaintiffs did not see the couples eating or drinking. Def. L.R. 7.1(a)(3) Stat. ¶ 9. Anthony Feacher asked why they could not enter and was told: "We're closed for you." Id. ¶ 6; but see id. ¶ 7.*fn4 Anthony Feacher thought that the exchange was "strange" but did not speak to any hotel employees or management about the situation. Id. ¶ 10. Plaintiffs then went to their room, ordered food from a local establishment that delivered to the Hotel, and, after eating, participated in activities in the Hotel's lounge that included dancing and mingling with other participants of the ski group. Id. ¶ 11; but see id. ¶ 8.*fn5
The next day, Plaintiffs went to the Hotel's restaurant for breakfast. The host or hostess asked: "What do you people want here?" Anthony Feacher replied: "We would like to be seated to be served." The host or hostess then seated Plaintiffs in the back of the restaurant. Id. ¶ 12; but see id. ¶ 13.*fn6 Anthony Feacher contends that there were empty tables in the middle of the restaurant and felt that being seated in the back of the restaurant was humiliating. See A. Feacher dep. trans., p. 35; but see B. Feacher dep. trans. pp. 18-19 (testifying that there were no other open tables at the time). Plaintiffs did not complain of their seating arrangement, were served the food they ordered, and paid for their meals without incident. Def. L.R. 7.1(a)(3) Stat. ¶ 19.
On Sunday, February 15, 2004, Plaintiffs went downstairs to eat brunch in the restaurant because they wanted to have an omelette prepared by the "world famous omelette chef" who was advertised to be in the Hotel restaurant that day. When they arrived, a "circle of employees" inside the restaurant asked Plaintiffs: "What the F do you want," and "What the F are you doing here." Id. ¶ 24. Feacher responded: "We're here to have breakfast," to which a Hotel employee stated: "You people belong in the back." Id. ¶ 25. Feacher then asked if they could be seated, and heard Timothy Brown, the restaurant manager, say to another employee: "Sit those f------ n-----ers right there so we can watch them." Id. ¶ 26; but see ¶¶ 27-28;*fn7 B. Feacher dep. trans. p. 37.*fn8 Plaintiffs were seated in the front of the restaurant in close proximity to where the omelettes were being prepared. Plaintiffs felt the location was "uncomfortable" because smoke from the omelets was blowing on them and because patrons ordering omelettes were standing close to Plaintiffs' seats. See B. Feacher dep. trans. p. 34.
Plaintiffs . . . then went to the omelet station, where they ordered omelets and were served. As the plaintiffs attempted to sit down, an unidentified employee allegedly took the plates out of the plaintiffs' hands, and threw the food in the garbage. The unidentified employee, after taking the plates from the plaintiffs, allegedly stated, "You people don't belong here. You belong in the back." In response, Mr. Feacher asked to speak with the manager, who came from the kitchen area. Timothy Brown identified himself as the manager/owner, and allegedly stated, "You people don't belong here. Get out of my F'ing restaurant, you f------ n-----."
In response to the alleged racial slurs, Mr. Feacher claims that he "tried to keep [his] cool and did keep [his] cool." Notwithstanding plaintiffs' allegation that their plates were taken from them, Mr. Feacher was handed a check after the alleged incident, and Mr. Feacher "paid for his breakfast and gave a 20 percent gratuity." Def. L.R. 7.1(a)(3) Stat. ¶¶ 29-33 (citing and quoting Anthony Feacher's dep. trans, pp. 54, 57, 59, 60, & 66); see also B. Feacher dep. trans. pp. 39-40 (testifying that Brown stated: "N-------ers don't belong here" and "Your n-------er money don't mean nothing to me.").
After the incident, Anthony Feacher contends that he went to the front desk, told an employee everything that had happened that day, and was told: "We will take care of it." A. Feacher dep. trans., p. 63; but see B. Feacher dep. trans. p. 41 (testifying that, after the incident, they went to the front desk where Anthony Feacher asked for the name and number of "someone he [could] call in reference to the incident" and was given a business card but did not describe the incident). Plaintiffs then went to their rooms where they waited until they got on the bus and returned to New Jersey. A. Feacher dep. trans., p. 100.