United States District Court, S.D. New York
ORDER & OPINION
LORNA G. SCHOFIELD, District Judge.
Plaintiff Zoltan Hirsch brings this suit against Defendants Campaniello Soho, Inc. and Thomas Campaniello d/b/a Campaniello Real Estate alleging violations of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq. and New York laws. Plaintiff seeks injunctive relief, $1000 in damages and attorneys' fees. Defendants now move to dismiss because Plaintiff lacks standing. Because doubt remains as to Plaintiff's standing, the parties are directed to appear for an evidentiary hearing to establish the same.
Plaintiff filed the original complaint in this action on July 8, 2014, against the presently named defendants and 225 East 57th Street Owners, Inc. All defendants sought, and were granted, extensions of time to answer until after Plaintiff responded to their Rule 11 letters. On October 21, 2014, Plaintiff filed the presently operative Amended Complaint (the "Complaint"), terminating 225 East 57th Street Owners, Inc. as a defendant. On November 12, 2014, the remaining defendants moved to dismiss.
The allegations in the Complaint are assumed to be true for purposes of this motion.
The Complaint alleges that Plaintiff, a resident of the State of New York, is a double amputee who uses a wheelchair for mobility. The Complaint does not identify where in the state Plaintiff resides.
The Complaint alleges that individual Defendant Thomas Campaniello owns Defendant Campaniello Soho, Inc. Defendant Campaniello Soho, Inc. leases property at 225 East 57th Street in New York, New York, where it "sells goods to the public." The Complaint does not allege what "goods" Defendant sells. However, in his opposition to Defendants' motion to dismiss, Plaintiff does not challenge, and apparently accepts, Defendants' description of their store as a "high-end Italian furniture showroom."
Without specifying a date or time, the Complaint alleges that "Plaintiff personally visited Defendants' Property, but was unable to enter due to a step at the entrance upon which Plaintiff was unable to safely traverse in his wheelchair, thereby denying him full and equal access to, and full and equal enjoyment of, the subject facility at Defendants' Property." The Complaint further alleges that "Plaintiff has been unable to, and continues to be unable to, enjoy full and equal safe access to, and the benefits of, all the goods and services offered at Defendants' Property, " and that "Plaintiff continues to desire to visit the... Property in the future."
At a conference in this matter on November 13, 2014, counsel for Plaintiff stated that he wished to amend the Amended Complaint to include details about when he visited Defendants' property. An order issued later that day directed that "to the extent Plaintiff seeks leave to amend the Amended Complaint to specify when Plaintiff allegedly visited Defendants' property, he shall include the proposed amendment as part of any response to the motion to dismiss." Plaintiff has failed to include any such proposed amendment, or information about the time of his visit that may be construed as a proposed amendment, in his opposition to Defendants' motion.
II. LEGAL STANDARD
A motion to dismiss for lack of Article III standing is properly analyzed under Federal Rule of Civil Procedure 12(b)(1) rather than Rule 12(b)(6) because it concerns "the authority of a federal court to exercise jurisdiction." Alliance for Envtl. Renewal, Inc. v. Pyramid Crossgates Co., 436 F.3d 82, 88 n.6 (2d Cir. 2006). "Dismissal for lack of subject matter jurisdiction [pursuant to Rule 12(b)(1)] is proper when the district court lacks the statutory or constitutional power to adjudicate a case." Sokolowski v. Metro. Transp. Auth., 723 F.3d 187, 190 (2d Cir. 2013) (citation and internal quotation marks omitted). In defending against a motion to dismiss for lack of subject matter jurisdiction, the plaintiff bears the burden of proving the court's jurisdiction by a preponderance of the evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). A court "may refer to evidence outside the pleadings" in resolving the motion. Id.
Defendants argue that Plaintiff has failed to demonstrate Article III standing to maintain a cause of action for an injunction under the ADA because the Complaint fails to allege when or why Plaintiff sought to enter Defendants' property and provides no reasonable basis to conclude that he would seek to return. Because doubt remains as to Plaintiff's intent to return to Defendants' ...