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Brown v. McKinley Mall, LLC

United States District Court, W.D. New York

May 30, 2017

McKINLEY MALL, LLC, Defendant.

          ALAN DONATELLI, ESQ. Attorney for Plaintiff

          KU & MUSSMAN, P.A. Attorneys for Plaintiff LOUIS I. MUSSMAN, of Counsel

          COLUCCI & GALLAHER, P.C. Attorneys for Defendant PAUL G. JOYCE, TORREY E. GRENDA, of Counsel

          DECISION and ORDER


          In this action alleging violations of the American with Disabilities Act's (“ADA”) requirements respecting handicapped access to public accommodations such as the large suburban shopping mall operated in this district by Defendant (“the McKinley Mall”), [1] Plaintiff, by papers filed February 3, 2017 (Dkt. 28), moves to compel Defendant's answers to Plaintiff's Interrogatories and related document production, and answers to Plaintiff's Requests for Admission (“Plaintiff' motion”). Defendant's opposition was filed February 24, 2017 (Dkt. 30) (“Defendant's Memorandum”); Plaintiff's reply was filed March 2, 2017 (Dkt. 32) (“Plaintiff's Reply”). Oral argument was deemed unnecessary.

         1. Plaintiff's Interrogatory and Document Production Requests.

         At issue on Plaintiff's motion is Plaintiff's Interrogatory No. 10 which requests Defendant to state Defendant's most recent fiscal year “cash and cash equivalent; investments, and earnings and cash flow for the prior fiscal year” (“Plaintiff's Interrogatories”). Plaintiff's related document requests seek Defendant's tax returns for the past three years (Request No. 5), documents reflecting Defendant's financial projections or estimations regarding Defendant's future growth (Request No. 6), Defendant's profitability for its last three years (Request No. 17), Defendant's financial resources for the past three years (Request No. 18), Defendant's annual operating budget for the past three years (Request No. 19), documents reflecting Defendant's “overall financial resources” for the past three years (Request No. 20), documents reflecting Defendant's gross receipts for the past three years (Request No. 24), gross receipts for the McKinley Mall for the past three years (Request No. 25), and all audited financial statements and similar documents for the McKinley Mall for the past three years (Request No. 31) (“Plaintiff's Document Requests”) (together “Plaintiff's Discovery Requests”).

         Plaintiff's Requests for Admission, to which Defendant objected and refused to answer, request Defendant admit or deny that Defendant's property includes designated [handicapped][2] accessible parking space(s) with slopes in excess of 1:48 (Request No. 11), curb ramp(s) with running slopes in excess of 1:12 (Request No. 12), curb ramp(s) with side flare slopes in excess of 1:10 (Request No. 13), curb ramp(s) which do not provide a level landing (Request No. 14), curb ramp(s) which do not provide smooth transitions (Request No. 15), sidewalk(s) with running slopes in excess of 1:20 but lacking handrails (Request No. 16), sidewalk(s) with cross slopes in excess of 1:48 (Request No. 17), and exterior tenant entrances which lack level landings, i.e., where the slope in front of the door is greater than 1:48 (Request No. 18) (“Plaintiff's Requests to Admit”).

         In response, Defendant objected to Plaintiff's Interrogatories asserting, as pertinent to Plaintiff's motion, that Plaintiff's Interrogatory is vague and ambiguous, overly broad, lacks relevancy, is unduly burdensome, and seeks confidential and proprietary information. Defendant also objects to Plaintiff's Document Production requests on similar grounds of overbreadth, undue burdensomeness, vagueness, proprietary information, and lack of relevancy. As to Plaintiff's Document Request Nos. 25 and 31, Defendant also objects on the ground that Plaintiff's definition of “Subject Property” to which the requests pertain includes ownership of real estate, which is included in the McKinley Mall, by entities other than Defendant. In response to Plaintiff's Requests to Admit, Defendant objects on grounds of vagueness, and that Plaintiff's reference of Defendant's Property includes real property neither owned nor operated by Defendant, fails to specifically define the areas or structures, e.g., curb ramps, to which Plaintiff's Requests to Admit apply, that Plaintiff's Requests to Admit seek admissions as to a pure question of law, such areas or structures were created prior to 1992, the effective date of the ADA, and because Defendant is neither an architectural nor legal expert, Defendant is unable to admit or deny Plaintiff's Discovery Requests.

         In response, Plaintiff contends Plaintiff's Discovery Requests seek relevant information as permitted by the ADA, specifically, 42 U.S.C. § 12181(b)(2)(A)(iv), which provides that with respect to properties like the McKinley Mall constructed prior to the enactment of the ADA in 1992, a plaintiff must establish that requested compliance with ADA handicapped access requirements such as at issue in the instant matter be “readily achievable, ” and that among the factors relevant to this issue, the court should consider “[t]he overall financial resources of the facility or facilities involved in the action.”

         For public accommodation facilities such as the McKinley Mall, see 48 U.S.C. § 12181(7)(E), constructed prior to 1992 when the ADA was enacted, discrimination against a person with a disability, i.e., handicapped, occurs at a public accommodation when the owner of the facility fails to remove architectural or structural barriers preventing access by such persons to the facility “where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). These access requirements also apply to any later alterations to any facility constructed prior to 1992 if the resulting change affects the useability of a building or facility. See 28 C.F.R. § 36.402(a). Removal of the barriers to access is readily achievable if the removal is “easily accomplish[ed] and . . . [can] be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). “In determining whether a proposed remedial action is readily achievable, factors to be considered [as relevant] include . . . (B) the overall financial resources of the facility or facilities involved in the action . . . ., ” [and] (C) the overall financial resources of the covered entity . . .[ ].” Id. In deciding the merits of a claim brought pursuant to the ADA, it is the plaintiff's burden to suggest “‘a plausible proposal for barrier removal, the costs of which, facially, do not clearly exceed its benefits.'” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 189 (2d Cir. 2013) (quoting Roberts v. Royal Atlantic Corp., 542 F.3d 363, 378 (2d Cir. 2008)), upon which the burden of non-persuasion shifts to the defendant. See Roberts, 542 F.3d at 370. Here, in addition to Defendant's objections based on undue burdensomeness, vagueness and relevancy, Defendant asserts that Plaintiff lacks standing arising from the unlikelihood Plaintiff will ever return to attempt access to the McKinley Mall by virtue of the fact that Plaintiff resides in the New York City area, Dkt. 30 at 2-3, and that Plaintiff has failed to satisfy Plaintiff's initial burden to show that the costs of the barrier removal Plaintiff seeks is “readily achievable, ” viz., cost-effective. Dkt. 30 at 4-7.

         At the outset, Defendant's objection that Defendant need not respond to Plaintiff's Discovery Requests at issue because, as an instigator of ADA claims, Plaintiff lacks standing, and has failed to show, prima facie, Plaintiff's barrier removal demands are readily achievable, overlooks the fact that despite such contentions, which conceivably could be relevant to a motion to dismiss for failure to state a claim pursuant to Fed.R.Civ.P. 12(b)(6), or for judgment on the pleadings pursuant to Fed.R.Civ.P. 12(c), Defendant, according to the docket has, prior to Plaintiff's service of Plaintiff's Discovery Requests and Requests to Admit, made no such motions. As such, for the purposes of Plaintiff's motion, Plaintiff's ADA and Plaintiff's state claims remain in the case and cannot be avoided by Defendant's contentions. See Fed.R.Civ.P. 26(b)(1) (parties may obtain discovery on any matter relevant to any party's claim or defense). If Defendant wished to avoid discovery under Defendant's theories of Plaintiff's asserted lack of standing and failure to plead a prima facie ADA claim, it was incumbent on Defendant to timely file a motion to dismiss asserting such grounds and request discovery be stayed pending a ruling on Defendant's putative motions. However, Defendant did not do so. Defendant's objection to Plaintiff's Discovery Requests on these grounds is therefore without merit and OVERRULED.

         Defendant's objections based on overbreadth, undue burdensomeness and vagueness fare no better. Absent an affidavit from a person with personal knowledge of the factual nature of an alleged undue burden arising from a discovery request pursuant to the Federal Rules of Civil Procedure, such generalized assertions that a discovery request is unduly burdensome will be overruled. See Strom v. Nat'l Enterprise Systems, Inc., 2010 WL 1533383, at *4 (W.D.N.Y. Apr. 15, 2010) (citing caselaw). Here, Defendant has provided no such required affidavit in support of its burdensomeness objection and, accordingly, Defendant's objection based on burdensomeness is OVERRULED.

         Plaintiff's Interrogatories include requests for a variety of financial information directed to Defendant's ability to absorb the costs of the barrier removals stated by Plaintiff to be approximately $69, 000. Dkt. 32 at 6. Specifically, Plaintiff's Interrogatory No. 10 seeks the amount in dollars of Defendant's cash and cash equivalents, investments, earnings and cash flow. As these are commonly recognized accounting terms (and Defendant does not contend otherwise) applicable to for-profit businesses (which Defendant presumably is), it is difficult to understand how Defendant, the owner of a major suburban shopping mall, would reasonably find such terms vague or ambiguous. Defendant's objections on this ground are therefore OVERRULED. Further, as Plaintiff's Discovery Requests are limited to Defendant's most recent previous fiscal year, the requests can hardly be considered overly broad. The same may be said for Plaintiff's Document Requests seeking Defendant's tax returns, budget projections and other financial information. As to Defendant's objection that such information is proprietary, this issue should (and should have been prior to Plaintiff's motion) be resolved by execution of a reasonably acceptable confidentiality agreement.[3]Defendant's contention that the properties to which Plaintiff's Discovery Requests pertain include real estate which, although physically part of ...

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