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Francis v. Lo-Do Corp.

United States District Court, S.D. New York

December 5, 2014

ASHLEY FRANCIS, Plaintiff,
v.
LO-DO CORP. and OMNITY CONSULTING LLC d/b/a HARLEM SHAKE, Defendants

For Ashley Francis, Plaintiff: Adam Saul Hanski, Glen Howard Parker, Robert Gerald Hanski, LEAD ATTORNEYS, Parker Hanski LLC, New York, NY.

For Lo-Do Corp., Omnity Consulting LLC doing business as Harlem Shake, Defendants: Andrew Justin Urgenson, LEAD ATTORNEY, Oved & Oved, LLP, New York, NY.

MEMORANDUM DECISION & ORDER

KATHERINE B. FORREST, United States District Judge.

On July 18, 2014, plaintiff Ashley Francis filed a lawsuit against Lo-Do Corp. and Omnity Consulting LLC d/b/a Harlem Shake alleging that they operated a place of public accommodation in violation of Title III of the Americans with Disabilities Act (" ADA") 42 U.S.C. § § 12181 et seq. and its implementing regulations, the New York State Executive Law § 296, New York State Civil Rights Law § 40, the Administrative Code of the City of New York § 8-107, and common law negligence. (ECF No. 1.) At a status conference on October 14, 2014, the Court asked the parties to submit letters on whether a common law negligence claim is preempted by federal or state statute. On October 31, 2014, the Court noted that it would construe the defendants' letters as a motion to dismiss the common law negligence claim pursuant to Rule 12(c), and invited further submissions on the motion. (ECF No. 23.) The Court has reviewed the four letters on the matter. (ECF Nos. 20, 22, 24, 25.)

I. STANDARD OF REVIEW

" After the pleadings are closed--but early enough not to delay trial--a party may move for judgment on the pleadings." Fed.R.Civ.P. 12(c). The Court reviews Rule 12(c) motions for judgment on the pleadings under the same standard as Rule 12(b)(6) motions to dismiss. See Bank of N.Y. v. First Millennium, Inc., 607 F.3d 905, 922 (2d Cir. 2010). Therefore, " [t]o survive a Rule 12(c) motion, the complaint 'must contain sufficient factual matter, accepted as true, to state a claim to relief that is plausible on its face.'" Id. (quoting Hayden v. Paterson, 594 F.3d 150, 160 (2d Cir. 2010)).

II. DISCUSSION

Plaintiff argues that the language of Title III of the ADA makes clear that the statute does not preempt a claim for common law negligence. See 28 C.F.R. § 36.103(c) (" This part does not invalidate or limit the remedies, rights, and procedures of any other Federal laws, or State or local laws (including State common law)"); 42 U.S.C. § 12201(b) (" Nothing in this chapter shall be construed to invalidate or limit the remedies, rights, and procedures of any Federal law or law of any State . . . that provides greater or equal protection for the rights of individuals with disabilities"). Defendant concedes that " the ADA and New York statutes do not preempt any common law claims" . (ECF No. 21.)

Defendant instead asserts that the question is whether plaintiff can maintain a common law negligence claim based solely on allegations that establish a violation of the statutory schemes. They argue that plaintiff's common law negligence claim cannot survive where she fails " to allege any physical injury or other facts independent from those supporting the plaintiff's ADA claim." (ECF No. 21.) For her common law negligence claim, plaintiff only alleges that defendants " negligently designed, constructed, operated, repaired and maintained their place of public accommodation" in a manner " inaccessible to the disabled plaintiff." (Compl. ¶ 80, ECF No. 1.) The duty to design, however, is a statutory duty and not a common law duty. Plaintiff's mere allegation that she was " unable to enjoy full and equal access to defendants' place of public accommodation" is insufficient. (Compl. ¶ 83.) While that injury can be remedied by the ADA and state statutes, plaintiff alleges no separate injury caused by defendants' negligence that can maintain a common law claim.

Plaintiff relies heavily on Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268 (2d Cir. 2009), and asserts that the case " condoned the assertion of a common law negligence claim arising out of the emotional distress caused from a public accommodation disability discrimination claim." (ECF No. 24.) However, the Second Circuit's discussion of common law negligence is limited to a two sentence vacation of the trial court's decision not to exercise supplemental jurisdiction over the negligence claims:

Finally, the district court declined to exercise supplemental jurisdiction over Robert's and Josephine's common law negligence claims because all federal claims had been dismissed. See 28 U.S.C. § 1367(c)(3). Because we vacate the dismissal of Robert's and Josephine's federal claims, we also vacate that part of the order declining to exercise supplemental jurisdiction over Robert's and Josephine's common law negligence claims.

Id. at 279. The Second Circuit noted that the plaintiffs dropped the common law claims, and did not address whether they would have stated a valid claim. Id. at 279 n.7. Moreover, the plaintiffs in that case suffered a separate physical injury beyond denial of access; failure to provide the hearing-impaired plaintiffs with a sign language interpreter made it difficult to communicate to medical personnel that the plaintiff had suffered a stroke during recovery from heart surgery.[1] Id. at 271-73. Here, plaintiff does not assert any such physical or emotional injury.

Plaintiffs also cite a Ninth Circuit case in arguing that there can be an emotional distress negligence claim alongside a public accommodation disability discrimination claim. See Gilstrap v. United Air Lines, Inc., 709 F.3d 995, 1007 (9th Cir. 2013.) Here again, plaintiff has not alleged any emotional distress that would allow the common law negligence claim to survive.

Although the ADA does not preempt common law claims in general, plaintiff's common law negligence claim here fails. In the complaint, plaintiff merely repeats language sufficient for the statutory claim (negligence in designing a place of public accommodation) and fails to allege additional facts that defendants breached any common law duty that caused a physical or emotional distress injury to plaintiff.

III. CONCLUSION

For the foregoing reasons, defendants' motion to dismiss the common law negligence claim is GRANTED. That claim is dismissed without prejudice, with leave to amend.

SO ORDERED.


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