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Keefe v. Subway of Cazenovia

June 22, 2010

JEANNE KEEFE, PLAINTIFF,
v.
SUBWAY OF CAZENOVIA, LLC, DEFENDANT,
SUBWAY OF CAZENOVIA, LLC, THIRD-PARTY PLAINTIFF,
v.
ALLIANCE NY, LLC, THIRD-PARTY DEFENDANT.



The opinion of the court was delivered by: Hon. Glenn T. Suddaby, United States District Judge

MEMORANDUM DECISION and ORDER

Currently pending before the Court in this disability discrimination action filed by Jeanne Keefe ("Plaintiff") against Subway of Cazenovia, LLC ("Defendant/Third-Party Plaintiff") is Third-Party Plaintiff's motion for default judgment against Alliance NY, LLC ("Third-Party Defendant"). (Dkt. No. 29.) For the reasons stated below, Third-Party Plaintiff's motion is granted.

I. RELEVANT BACKGROUND

A. Plaintiff's Complaint

Liberally construed, Plaintiff's Complaint asserts the following two claims against Defendant/Third-Party Plaintiff: (1) violation of the American with Disabilities Act, 42 U.S.C. § 12181; and (2) violation of New York State Human Rights Law, N.Y. Executive Law § 296. (Dkt. No. 1.) Generally, in support of those claims, Plaintiff's Complaint alleges that Defendant/Third-Party Plaintiff's store, located at 63 Albany Street in Cazenovia, New York, is inaccessible to Plaintiff (who is wheelchair bound) because (1) the building's front steps do not have a ramp for wheelchair users to use in order to access the building, and (2) the building's front doors are not wide enough for a wheelchair to fit through. (Id.)

B. Third-Party Plaintiff's Complaint

Liberally construed, Third-Party Plaintiff's Complaint asserts the following two claims against Third-Party Defendant, as the owner and landlord of 63 Albany Street, in Cazenovia, New York: (1) liability for contribution and/or indemnification pursuant to 42 U.S.C. § 12182, 28 C.F.R. § 36.201, and the parties' lease agreement; and (2) breach of contract. (Dkt. No. 22.) Generally, in support of those claims, Third-Party Plaintiff's Complaint alleges as follows: (1) the lease agreement states that (a) Third-Party Defendant will keep the building in compliance with all applicable federal, state, county and municipal building codes, laws and regulations including 42 U.S.C. § 12181, and (b) Third-Party Defendant will indemnify Third-Party Plaintiff and make any necessary alterations to the building resulting from any claims or lawsuits brought by any person for violation of any code, law or regulation; and (2) all or part of Plaintiff's damages, if any, were caused by the conduct of Third-Party Defendant. (Id.)

C. Third-Party Plaintiff's Service of its Third-Party Complaint and Third-Party Defendant's Failure to Answer

On November 23, 2009, Third-Party Plaintiff served its Complaint on Third-Party Defendant. (Dkt. No. 24.) As of the date of this Decision and Order, Third-Party Defendant has filed no Answer to that Complaint. (See generally Docket Sheet.)

D. Clerk's Office's Entry of Default and Third-Party Defendant's Non-Appearance

On February 4, 2010, Third-Party Plaintiff filed for entry of default. (Dkt. No. 25.) On February 5, 2010, the Clerk of the Court entered default against Third-Party Defendant, pursuant to Fed. R. Civ. P. 55(a). (Dkt. No. 27.) As of the date of this Decision and Order, Third-Party Defendant has not appeared and attempted to cure that entry of default. (See generally Docket Sheet.)

E. Third-Party Plaintiff's Motion for Default Judgment and Third-Party Defendant's Non-Response

On April 7, 2010, Third-Party Plaintiff filed a motion for default judgment pursuant to Fed. R. Civ. P. 55(b). (Dkt. No. 29.) As of the date of this Decision and Order, Third-Party Defendant has filed no response to that motion. (See generally Docket Sheet.)

Generally, in support of its motion for default judgment, Third-Party Plaintiff argues that it has satisfied the two-step default judgment process required by Fed. R. Civ. P. 55 (Dkt. No. 29.) Familiarity with the particular grounds of Third-Party Plaintiff's motion for default judgment is assumed in ...


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