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Gropper v. Fine Arts Hous., Inc.

United States District Court, S.D. New York

April 3, 2014

DAN GROPPER, Plaintiff,

Order Filed: May 14, 2014

For the Plaintiffs: Glen H. Parker and Adam S. Hanski, Parker Hanski LLC, New York, NY.

For the Defendants: Loren L. Forrest, Jr., Howard Sokol, Holland & Knight LLP, New York, NY.


Page 665


DENISE COTE, United States District Judge.

Dan Gropper (" Gropper" ), a disabled individual, brought this action alleging that Fine Arts Housing, Inc. (" FAH" ) and Nobu Associates, L.P. d/b/a Nobu (" Nobu" ) have discriminated against him because of his disability and have conspired to deprive him of his civil rights. He brings six claims under 42 U.S.C. § 1985; Title III of the Americans with Disabilities Act (" ADA" ), 42 U.S.C. § 12181, and its implementing regulations; N.Y.S. Executive Law § 296; N.Y.S. Civil Rights Law § 40; the N.Y.C. Administrative Code § 8-107; and New York tort law. He seeks compensatory, declaratory, and injunctive relief, as well as attorney's fees.

Page 666

The defendants have filed a motion to dismiss. For the following reasons, the motion is granted in part.


The complaint includes the following allegations. Gropper suffers from medical conditions that inhibit his ability to walk and his body's range of movement. He uses a wheelchair for mobility and has restricted use of his hands and arms.

Nobu's Alleged Disability Violations

Gropper brings this disability discrimination action against the world-famous " Nobu New York" restaurant (" Nobu Restaurant" ), located at 105 Hudson Street in the Tribeca neighborhood of Manhattan, New York. Defendant FAH owns the property at 105 Hudson Street; defendant Nobu leases the property to operate the restaurant. This location is, according to the New York City Landmarks Preservation Commission (" LPC" ), within the historic " Tribeca West" district, and thus owners are required to obtain an LPC permit before doing any work to a landmark property.

The complaint lists forty-five architectural barriers at Nobu Restaurant that prevent and/or restrict access to disabled individuals, including Gropper. These can be grouped as follows: (1) Nobu Restaurant's entrances are neither accessible for disabled individuals nor properly signed, and its alternate entrance does not coincide with general public circulation; (2) Nobu Restaurant fails to provide a sufficient number of public entrances that are accessible for disabled individuals; (3) Nobu Restaurant's interior layout does not generally provide sufficient space for disabled individuals, including specifically a lack of maneuvering clearance for wheelchair-bound individuals; (4) Nobu Restaurant's host counter is not accessible for disabled individuals; (5) the route to Nobu Restaurant's dining and seating is not accessible for wheelchair-bound individuals, and its designated accessible seating is not properly signed; and (6) Nobu Restaurant's bathrooms do not comply with various requirements for disability access.

VCA Between Nobu and Justice Department

Defendants' motion to dismiss relies principally on a Voluntary Compliance Agreement (" VCA" ) entered into between Nobu and the Department of Justice in the Fall of 2013. Because the VCA appears to be a public record and plaintiff had not disputed consideration of the VCA at this stage, it shall be discussed.[1]

The whereas clauses of the VCA describe the circumstances giving rise to the VCA. At some point in time before the Fall of 2013, the Department of Justice commenced a limited review of certain restaurants in New York City to determine whether they were operating in compliance with Title III of the ADA. As part of this compliance review, the Justice Department requested information on Nobu Restaurant and conducted a limited site inspection. The Justice Department decided, in light

Page 667

of the actions that Nobu has already taken and the actions that it promised to the take in the VCA, to take no further enforcement action with respect to Nobu Restaurant as a result of its compliance review.

As relevant here, Nobu agreed to make four categories of changes in the VCA. These categories relate to Nobu Restaurant's public entrance, dining area, host station, and restrooms.

With regard to the public entrance, the VCA states -- after listing the various ADA violations in the current designated alternate entrance on Franklin Street -- that Nobu promises to ensure that this entrance is " accessible to, and usable by, persons with disabilities, including persons using wheelchairs for mobility." Specifically, Nobu will modify this entrance by " installing a permanent ramp, replacement door with automatic door opener, and signage." Additionally, Nobu will provide proper directional signage indicating the location of the alternate entrance from the main public entrance on Hudson Street. Nobu promises to use its " best efforts" to obtain approvals for this installation from the New York City Department of Buildings; the New York City Landmarks Preservation Commission; and its landlord, defendant FAH. Further, Nobu promises to commence modifying the alternate entrance within three months of the date that the approvals are granted and promises to complete its modification within nine months of the same date.

With regard to the dining area, Nobu promises to make five percent of the seating locations at fixed dining surfaces accessible to disabled individuals, which translates to three seating locations that are accessible to wheelchair-bound individuals. These locations would be distributed throughout the restaurant. Nobu promises to complete these changes within six months of the effective date of the VCA.

Additionally, Nobu promises to provide an accessible route to these designated seating locations. At the time of its inspection, the Justice Department found that the access aisle was not sufficiently wide. Nobu has since reported that it removed one of its interior decorative trees to clear sufficient aisle space, which the Justice Department has accepted as constituting compliance. Further, Nobu promises to either make all dining areas, including a raised semi-private dining area, accessible to disabled individuals, or alternatively to provide accessible semi-private dining upon request.

With regard to the host station, Nobu promises that the routes to and from the host station would be handicapped accessible. Finally, with regard to bathrooms, Nobu promises to build a unisex handicapped accessible bathroom on an accessible route within eight months of the effective date of the VCA.

The term of the VCA is set at three years from the effective date. Nobu promises to submit annual reports during that time. The Justice Department has the right to ensure compliance through site inspection or communications with the restaurant staff. And Nobu promises to cooperate with the Justice Department's monitoring in good faith. Further, if the Justice Department believes Nobu to have violated the terms of VCA, it may bring a civil suit to enforce the VCA in the Southern District of New York.

The final section of the VCA is titled " General Provisions." It states (or rather re-states) that the consideration for Nobu's performance of its obligations under the VCA is the Justice Department's discontinuance of its compliance review. It makes explicit, ...

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