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Thomas v. Ariel West Hudson Island, LLC

United States District Court, S.D. New York

March 15, 2017



          LAURA TAYLOR SWAIN United States District Judge.

         Plaintiff Terrell Thomas (“Plaintiff”) brought this case against defendants Ariel West, Hudson Island, LLC (“Hudson Island”), and Urban Outfitters, Inc. (“Urban, ” collectively, “Defendants”), alleging claims of disability discrimination under Title III of the Americans with Disabilities Act of 1990 (“ADA”), 42 U.S.C. §§ 12181 et seq., the New York State Executive Law § 296, the New York State Civil Rights Law § 40, and the Administrative Code of the City of New York § 8-107, as well as a claim of common-law negligence. The Court has jurisdiction of this action pursuant to 28 U.S.C. §§ 1331 and 1343, and supplemental jurisdiction of Thomas's related state- and city-law claims pursuant to 28 U.S.C. § 1367(a).

         Plaintiff seeks an injunction requiring the removal of alleged architectural barriers at a retail clothing store operated by Urban. After this suit was brought, Urban made voluntary alterations to the store that eliminated most of the architectural barriers that Plaintiff had alleged violated the ADA. Defendants assert that the remaining alleged barriers of which Plaintiff complains do not, in fact, constitute ADA violations.

         Defendants have moved pursuant to Federal Rule of Civil Procedure 12(b)(1), to dismiss Plaintiff's amended complaint as moot, or, in the alternative, for summary judgment pursuant to Rule 56 dismissing the amended complaint.

         The Court has reviewed thoroughly all of the parties' submissions and, for the reasons stated below, Defendants' motion is denied insofar as it is brought pursuant to Rule 12(b)(1) and is granted in part and denied in part insofar as it seeks summary judgment.


         The following facts are drawn from the parties' S.D.N.Y. Local Civil Rule 56.1 Statements of Undisputed Facts and are, unless otherwise noted, not in dispute.[1]

         Urban operates a retail clothing store (“Store #143”), located at 2633 Broadway, New York, NY. (Defs.' 56.1 ¶ 1, docket entry no. 111.) Store #143 is located within a thirty-story luxury condominium building with the address of 245 West 99th Street, New York, NY (the “Building”). (Pl.'s 56.1 ¶ 1, docket entry no. 119.) Ariel West is an unincorporated association of residential condominium unit owners in the Building. (Id. ¶ 2.) Hudson Island is the owner of the commercial retail unit in the Building, which Urban currently leases for purposes of operating Store #143. (Id. ¶¶ 6-7, 9, 10.)

         The Building was designed and constructed after January 26, 1993, but before March 15, 2012. (Id. ¶ 3.) The commercial unit housing Store #143 has two floors: “Story 1” (also referred to as the “Cellar Floor”), and “Story 2” (also referred to as the “Street Floor”). (Defs.' 56.1 ¶ 4.) Story 2 is about 6, 095 square feet in size and contains the general public entrance to Store #143, a check-out counter, retail space, and two fitting rooms that meet ADA accessibility standards. (Id. ¶¶ 9-10.) Story 1 is about 8, 708 square feet in size and contains a check-out counter, retail space, and restrooms for staff (Store #143 does not provide public restrooms). (Id. ¶¶ 5-7.) A passenger elevator permits customers to travel between Story 1 and Story 2. (Pl.'s 56.1 ¶ 13.)

         In or around 2010, after Urban entered into a lease with Hudson Island to rent the retail space for Store #143, it retained the firm David A. Levy & Associates to perform architectural services for the design and construction of the store. (Id. ¶¶ 10, 16.) As part of that construction, Urban created a new staircase connecting Story 1 and Story 2 within Store #143. (Id. ¶ 26.) Urban created and installed a 500-square feet landing level on that new staircase (the “Landing”). (Id. ¶ 27; Defs.' 56.1 ¶ 8.) At all times since Store #143 has been open for business, the Landing has contained merchandise for sale to Urban's customers. (Pl.'s 56.1 ¶¶ 28-29.) No elevator or lift connects the Landing to either Story 1 or Story 2, and Urban admits that the Landing is therefore not accessible to a wheelchair user. (Id. ¶¶ 32-33.)

         In addition to creating the new staircase and the Landing, Urban created and installed a “Mezzanine” level above Story 2, which is connected to Story 2 by another staircase. (Id. ¶¶ 19-20.) The Mezzanine is approximately 1, 000 square feet in size. (Defs.' 56.1 ¶ 12.) The Mezzanine contains fifteen fitting rooms and is staffed by an Urban employee to assist customers with using the fitting rooms. (Pl.'s 56.1 ¶ 24.) No elevator or lift connects the Mezzanine to either Story 1 or Story 2; Urban admits that a wheelchair user cannot independently access the Mezzanine level. (Id. ¶¶ 22-23.)

         Plaintiff is a wheelchair user who, according to the amended complaint, attempted to access Store #143. (Am. Compl. ¶¶ 39, 46, docket entry no. 15.) On June 20, 2014, Plaintiff filed the instant lawsuit, alleging that he had experienced various barriers to access at Store #143. He filed an amended complaint on September 11, 2014.

         On March 12, 2015, Plaintiff's expert inspected Store #143 and prepared a report listing thirteen areas of alleged ADA noncompliance. (Defs.' 56.1 ¶¶ 24-25.) It is undisputed that all but three of these alleged ADA violations have been cured. (Id. ¶¶ 27-28.) The three remaining alleged violations are: (1) that there is no accessible route to the Mezzanine level; (2) that there is no accessible route to the Landing level; and (3) that throughout Store #143, some merchandise display racks project horizontally into the circulation path (as to this third issue, it appears to be undisputed that Urban has taken steps to ensure that all display structures leave clear at least the 36 inches of space required for wheelchair travel). (Id. ¶ 28.) Defendants assert that they have not cured the first two alleged violations because the conditions do not, as a matter of law, violate the ADA or other law.



         Defendants argue that they have voluntarily modified Store #143 so as to remove all of the alleged barriers to access of which Plaintiff makes valid complaints, making this case moot. Therefore, Defendants conclude, this Court lacks subject-matter jurisdiction of Plaintiff's lawsuit.

         The mootness doctrine is derived from Article III of the Constitution, which gives the federal judiciary authority to adjudicate “Cases” and “Controversies.” U.S. Const. art. III, § 2. “A case becomes moot-and therefore no longer a ‘Case' or ‘Controversy' for purposes of Article III-when the issues presented are no longer ‘live' or the parties lack a legally cognizable interest in the outcome.” Already, LLC v. Nike, Inc., 133 S.Ct. 721, 726 (2013) (internal quotation marks omitted) (quoting Murphy v. Hunt, 455 U.S. 478, 481 (1982) (per curiam)).

         However, “[a] case becomes moot only when it is impossible for a court to grant any effectual relief whatever to the prevailing party.” Knox v. Serv. Employees Int'l Union, Local 1000, 132 S.Ct. 2277, 2287 (2012) (emphasis added) (internal quotation marks omitted) (quoting Erie v. Pap's A.M., 529 U.S. 277, 287 (2000)). “[A]s long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot.” Ellis v. Bhd. of Ry., Airline & S.S. Clerks, Freight Handlers, Exp. & Station Emps., 466 U.S. 435, 442 (1984) (citing Powell v. McCormack, 395 U.S. 486, 496-98 (1969)).

         Here, there is no question that at least some portions of Plaintiff's claims are not moot. The parties vigorously dispute whether the failure to provide an accessible route to either the Landing or the Mezzanine constitutes an ongoing violation of the ADA or other laws. Defendants have not voluntarily corrected this lack of access because they assert that they are not legally obligated to do so. Resolution of this question requires a determination on the merits- the application of the law to this case's specific facts-which necessarily constitutes a “live” issue. Given that at least some of Plaintiff's claims are not moot, the Court retains subject-matter jurisdiction of this case. Gropper v. Fine Arts Hous., Inc., 12 F.Supp.3d 664, 670 (S.D.N.Y. 2014).[2]

         Therefore, the Court denies Defendants' motion insofar as it is brought pursuant to Federal Rule of Civil Procedure 12(b)(1) and addresses the motion as one for summary judgment pursuant to Federal Rule of Civil Procedure 56, which Defendants have invoked as an alternative basis for relief.

         Summary Judgment Standard

         Summary judgment is appropriate where there are no genuine issues of material fact and the movant is entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). The moving party has the initial burden of demonstrating the absence of a disputed issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). A dispute concerning material fact is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Aldrich v. Randolph Cent. Sch. Dist., 963 F.2d 520, 523 (2d Cir. 1992) (quoting Anderson, 477 U.S. at 248). A genuine issue for trial exists if, based on the record as a whole, a reasonable jury could find in favor ...

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