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Garnet v. Ramos Brothers Inc.

United States District Court, E.D. New York

January 17, 2017

EDWARD GARNET, Plaintiff,
v.
RAMOS BROTHERS INC., Defendant.

          REPORT & RECOMMENDATION

          BLOOM, United States Magistrate Judge

         Plaintiff, Edward Garnet, brings this action against defendant, Ramos Brothers, Inc. ("Ramos"), for violations of Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12181, et seq.; New York State Human Rights Law ("NYSHRL"), N.Y. Exec Law § 296(2)(a); and the New York City Human Rights Law ("NYCHRL"), N.Y. City Admin. Code § 8-107.4(a). Despite proper service of the summons and complaint, Ramos has failed to plead or otherwise defend this action. Plaintiff now moves for a default judgment pursuant to Rule 55(b) of the Federal Rules of Civil Procedure. The Honorable Raymond J. Dearie referred plaintiffs motion for a default judgment to me for a Report and Recommendation in accordance with 28 U.S.C. § 636(b). For the reasons set forth below, it is respectfully recommended that plaintiffs motion for a default judgment should be denied without prejudice.

         BACKGROUND

         Plaintiff is a resident of the State of New York, suffers from cerebral palsy, a congenital disorder that impairs his motor and sensory functions. (ECF No. 1, "Compl.", ¶ 4.) As a result, plaintiff uses a wheelchair for mobility. (Id.) Plaintiff alleges that defendant is the "owner, lessee and/or operator" of property located at 190-05 Union Turnpike in Queens, New York 11366 ("Property").[1] (Id. at ¶ 5.) In or about March 2016, plaintiff visited the Property but was denied full and equal access due to several "architectural barriers". (Id. at ¶¶ 4, 14.) Plaintiff alleges that defendant's Property violates the ADA due to, inter alia, inaccessible parking, ramps, and curbs. (Id. at ¶ 16.)

         Plaintiff commenced this action on June 1, 2016 seeking injunctive and declaratory relief, compensatory damages, as well as attorneys' fees and costs. (ECF No. 1.) Despite proper service, defendant has failed to appear or otherwise defend this action. On June 28, 2016, plaintiff requested a certificate of default against defendant and the Clerk of Court noted Entry of Default on July 11, 2016. (ECF Nos. 5, 7.) On July 19, 2016, plaintiff filed a motion for a default judgment. (ECF No. 8.) On August 25, 2016, the motion for a default judgment was referred to me. On August 30, 2016, I directed plaintiff "to file a memorandum of law setting forth the cases and other authorities relied upon in support of his motion" and directed counsel "to provide the Court with appropriate documentation to support his claim for attorneys' fees." (ECF No. 9.) The very next day, August 31, 2016, plaintiff filed a two paragraph "Memorandum of Law in Support of Plaintiffs Motion for Default Judgment" ("Memorandum of Law") along with a spreadsheet of counsel's billing records. (ECF Nos. 11, 11-1.)

         DISCUSSION

         I. Standing

         Standing is an "irreducible constitutional minimum." Luian v. Defenders of Wildlife. 504 U.S. 555, 560 (1992). Thus, even though defendant has not appeared in this action and has not challenged plaintiffs standing to sue, the Court evaluates whether plaintiff has standing. See Access 4 All. Inc. v. Thirty E. 30th St.. LLC. No. 04 Civ. 3683 (KMW)(DF), 2006 U.S. Dist. LEXIS 96742, at *35-36 (S.D.N.Y. Dec. 11, 2006) ("Ensuring that standing requirements are met by each plaintiff in each lawsuit brought under the ADA enables courts to ensure that the ADA is not being abused ...."). In the ADA context, where plaintiff seeks injunctive relief based upon lack of access to a public accommodation, [2] a plaintiff establishes standing if:

(1) the plaintiff allege[s] past injury under the ADA; (2) it [is] reasonable to infer that the discriminatory treatment [will] continue; and (3) it [is] reasonable to infer, based on the past frequency of plaintiffs visits and the proximity of [the public accommodation] to plaintiffs home, that plaintiff intend[s] to return to the subject location.

Kreisler v. Second Ave. Diner Corp.. No. 12 CV 4093, 2013 U.S. App. LEXIS 19642, at *6 (2d Cir. Sept. 25, 2013) (citing Camarillo v. Carrols Corp.. 518 F.3d 153, 158 (2d Cir. 2008) (per curiam)); accord Harty v. Simon Prop. Group. L.P.. 428 F.App'x 69, 71 (2d Cir. 2011). Plaintiffs complaint establishes the first two elements, [3] but fails to sufficiently establish that plaintiff intends to return to the Property.

         "[N]o standard has been established for the necessary degree of 'likelihood' that an ADA plaintiff will return, nor a specific number of times per year that plaintiff will visit the facility, nor even how far forward in time should be considered in determining whether the injury might be imminent[.]" Access 4 All. Inc. v. G&T Consulting Co.. LLC. No. 06 CV 13736 (DF), 2008 WL 851918, at * 8 (S.D.N.Y. Mar. 28, 2008) (citations omitted). However, "courts have considered the following factors to be relevant: (1) the proximity of the place of public accommodation to plaintiffs residence, (2) plaintiffs past patronage of defendant's business, (3) the defintiveness of plaintiffs plans to return, and (4) the plaintiffs frequency of travel near defendant." Id. (internal quotations and citations omitted); see also Disabled in Action of Metro N.Y. v. Trump Int'l Hotel & Tower. No. 01 CV 5518 (MBM), 2003 WL 1751785, at *7 (S.D.N.Y. Apr. 2, 2003) ("Courts considering ADA claims have found that disabled plaintiffs who had encountered barriers at ... stores ... prior to filing their complaints have standing to bring claims for injunctive relief if they show a plausible intention or desire to return to the place but for the barriers to access.") (citations omitted).

         Here, the complaint states that plaintiff "continues to desire to visit the Subject Property in the future, but continues to be injured in that he is unable to and continues to be discriminated against due to the architectural barriers[.]" (Compl., at ¶ 14.) This allegation, even on a motion for default, is insufficient. Plaintiff must allege, "either in his complaint or in a sworn affidavit[, ] that he intends to return to defendant's [Property]." Shariff v. Radamar Meat Corp., No. 11 CV 6369 (NGG)(RML), ECF No. 15 at p. 4, (E.D.N.Y. Aug. 12, 2013) (denying plaintiffs motion for a default judgment, with leave to supplement, where the complaint failed to sufficiently allege that plaintiff intended to return to defendant's establishment). Here, plaintiff has failed to provide the court any "details concerning his proximity to defendant's [Property], and has not stated how often he has attempted to visit the [Property] or travels in the vicinity of the [Property]." Id. (collecting cases where standing was established after plaintiff properly alleged an intent to return to the store through a showing of residential proximity, travel plans, and a clear intention to return). Plaintiffs complaint lacks the basic information necessary for the Court to find that plaintiff has standing to maintain this ADA lawsuit seeking declaratory and injunctive relief.[4]

         Accordingly, as the Court finds that plaintiffs complaint fails to demonstrate that plaintiff has standing, the Court recommends that plaintiffs motion for a default judgment ...


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