United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
TAYLOR SWAIN United States District Judge.
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).
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.
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.
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.
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.
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.)
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 ¶
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.)
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.
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.
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
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.
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)).
“[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)).
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).
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.
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 ...