United States District Court, S.D. New York
MEMORANDUM DECISION AND ORDER
B. DANIELS, UNITED STATES DISTRICT JUDGE.
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.)
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.)
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.
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
Report and Recommendations
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).
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)).
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
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 AMERICANS WITH DISABILITIES ACT
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