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Hurley v. Tozzer, Ltd.

United States District Court, S.D. New York

February 22, 2018

TOZZER, LTD. d/b/a/ NIAGARA, Defendant.



         Plaintiff Fredkiey Hurley filed this action on April 9, 2015, seeking a declaration that Defendant Tozzer, Ltd. violated Title III of the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12101 et seq., by denying him access to goods or services on Defendant's property, a bar located in Manhattan called the Niagara. (Compl., ECF No. 1.) On June 30, 2017, Defendant moved for summary judgment, pursuant to Federal Rule of Civil Procedure 56, arguing that Plaintiff lacks standing and has failed to prove that the removal of an architectural barrier preventing him from accessing the establishment is readily achievable. (Id. at 1; Def. Mot. for Summ. J., ECF No. 67.)

         This matter was referred to Magistrate Judge Henry Pitman. (ECF No. 9.) Before this Court is Magistrate Judge Pitman's February 2, 2018 Report and Recommendation ("Report, " ECF No. 73), recommending that this Court grant Defendant's motion for summary judgment both on standing grounds and on the merits. (Id. at 2.)[1]

         Magistrate Judge Pitman advised the parties that failure to file timely objections to the Report would constitute a waiver of those objections on appeal. (Id. at 16); see also 28 U.S.C. § 636(b)(1)(C); Fed.R.Civ.P. 72(b). Neither party has filed objections.

         Having reviewed the Report for clear error and finding none, this Court ADOPTS the Report and the recommendations contained therein in full, and GRANTS Defendant's motion for summary judgment.


         A. Report and Recommendations

         This Court may accept, reject or modify, in whole or in part, the findings and recommendations set forth within the Report. See 28 U.S.C. § 636(b)(1)(C). When no objections to a Report are made, this Court may adopt the Report if "there is no clear error on the face of the record." Adee Motor Cars, LLC v. Amato, 388 F.Supp.2d 250, 253 (S.D.N.Y. 2005) (internal quotation mark s and citation omitted). Clear error is present only when "upon review of the entire record, . . . [the court is] 'left with the definite and firm conviction that a mistake has been committed."' United States v. Snow, 462 F.3d 55, 72 (2d Cir. 2006) (citation omitted).

         B. Summary Judgment

         Summary judgment is appropriate where "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a). "An issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Gayle v. Gonyea, 313 F.3d 677, 682 (2d Cir. 2002). A fact is "material" when "it 'might affect the outcome of the suit under the governing law.'" Id. (quoting Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)).

         The party seeking summary judgment has the burden of demonstrating that no genuine issue of material fact exists. See Marvel Characters, Inc. v. Simon, 310 F.3d 280, 286 (2d Cir. 2002). In turn, to defeat a motion for summary judgment, the non-moving party must raise a genuine issue of material fact. To do so, the non-moving party "must do more than simply show that there is some metaphysical doubt as to the material facts, " Caldarola v. Calabrese, 298 F.3d 156, 160 (2d Cir. 2002) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87 (1986)), and it "may not rely on conclusory allegations or unsubstantiated speculation, " Fujitsu ltd. v. Fed. Express Corp., 247 F.3d 423, 428 (2d Cir. 2001) (quoting Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir. 1998)). Rather, the non-moving party must produce admissible evidence that supports its pleadings. See First Nat'l, Bank of Ariz. v. Cities Serv. Co., 391 U.S. 253, 289-90 (1968). In this regard, "[t]he 'mere existence of a scintilla of evidence' supporting the non-movant's case is also insufficient to defeat summary judgment." Niagara Mohawk Power Corp. v. Jones Chem., Inc., 315 F.3d 171, 175 (2d Cir. 2003) (quoting Anderson, 477 U.S. at 252).

         In determining whether a genuine issue of material fact exists, the court must construe the evidence in the light most favorable to the non-moving party and draw all inferences in that party's favor. See Morse v. Fusto, 804 F.3d 538, 546 (2d Cir. 2015); Niagara, 315 F.3d at 175. The court's task is "not... to weigh the evidence and determine the truth of the matter but to determine whether there is a genuine issue for trial." Anderson, Ml U.S. at 249. Summary judgment is therefore "improper if there is any evidence in the record that could reasonably support a jury's verdict for the non-moving party." Marvel, 310 F.3d at 286.


         Title III of the ADA provides, in pertinent part, that "[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). To state a claim under Title III, a plaintiff must allege "(1) that she is disabled within the meaning of the ADA; (2) that defendants own, lease, or operate a place of public accommodation; and (3) that defendants discriminated against ...

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