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Feltzin v. Clocktower Plaza Properties, Ltd.

United States District Court, E.D. New York

February 28, 2018

CLOCKTOWER PLAZA PROPERTIES, LTD., [1] a New York Corporation, Defendant.

          BRAFF, HARRIS, SUKONECK, & MALOOF Attorney for Plaintiff By: Keith Harris, Esq.

          FULLER, FULLER & ASSOCIATES, P.A. Attorney for Plaintiff By: Lawrence A. Fuller, Esq.

          ALLISON M. KOURBAGE, P.C. Attorney for Defendant By: Allison M. Kourbage, Esq.




         Plaintiff Lawrence Feltzin (“Plaintiff”) brought the instant action against Defendant Clocktower Plaza Properties, Ltd. (“Defendant”) for alleged violations of the Americans with Disabilities Act (“ADA”), 42 U.S.C. § 12181 et seq. Plaintiff qualifies as an individual with disabilities as defined by the ADA, and uses a wheelchair. (Second Amended Complaint [DE 33] ¶ 5 (Apr. 12, 2017) (hereinafter “SAC”)); 42 U.S.C. § 12102. Plaintiff alleges in the SAC that Defendant violated the ADA by denying him access to, and full and equal enjoyment of, certain goods and facilities including the parking area, restroom, and certain restaurant premises, thereby discriminating against him and forcing him to suffer humiliation and embarrassment. (SAC ¶ 6.)

         Presently before the Court is Defendant's motion to dismiss pursuant to Fed.R.Civ.P. (“Rule”) 12(b)(1) for lack of subject matter jurisdiction, Rule 12(b)(6) for failure to state a claim upon which relief can be granted, and Rule 12(b)(7) for failure to join necessary parties under Rule 19. (Mem. in Supp. [DE 35-1] at 4-17 (hereinafter “Mem. in Supp.”).) For the reasons set forth below, the motion to dismiss is granted as to Rule 12(b)(1) and 12(b)(6), and denied as to Rule 12(b)(7).


         The following facts come from the Parties' submissions and the Complaint.

         Plaintiff alleges that at the time of commencement of this action he resided in Boynton Beach, Florida, but previously lived in Nassau County, New York and travels back to Nassau frequently to visit his friends. (SAC ¶ 6.) Plaintiff states that he visited the Defendant's property the Clocktower Plaza, a shopping center at 1 Schwab Road, Melville, NY 11747 (the “Property”), on May 11, 2016 to get a slice of pizza. (Feltzin Aff. [DE 36-1] ¶ 2 (June 2, 2017). Plaintiff alleges that he encountered architectural barriers that impaired his “ability to park safely at the premises, to access the premises safely, to use restrooms safely, and to access goods and services at the premises.” (SAC ¶ 6.) Plaintiff states that he intends to return to the Property once the barriers to access are corrected. (Id. ¶ 7.)

         Plaintiff alleged ADA violations in three overarching categories: (1) parking, (2) goods and services, and (3) restrooms. (SAC ¶ 11.) Regarding parking, Plaintiff specifically claims that the curb ramps are unsafe for wheelchair use; that the parking spaces fail to lead to ramps; that there is no safe accessible route to the bus stop, street, or sidewalk. (Id.) Regarding access to goods and services, Plaintiff claims that Mario's Pizzeria and other restaurants fail to provide accessible tables; that payment counters at numerous retailers including Ralph's Ice are mounted out of reach; and that there are abrupt changes of level or slopes. (Id.) Regarding the restrooms, Plaintiff claims that the facilities at Mario's Pizzeria and Nail Castle are unsafe due to small, inaccessible bathrooms; that they lack knee clearance; that they contain improper centerlines; and that all the restrooms include improper door hardware, a lack of maneuvering space, and dispensers that are out of reach. (Id.)

         On August 2, 2016, Plaintiff brought the instant action. Defendant answered on September 28, 2016, and Plaintiff filed his First Amended Complaint on October 13, 2016. Defendant then filed a letter application for a pre-motion conference for a motion to dismiss on January 2, 2017. Plaintiff then moved to file a SAC on January 5, 2017. The Court granted Plaintiff's motion and Plaintiff filed the SAC on April 12, 2017. Defendant filed the instant motion to dismiss on June 22, 2017.[2]


         I. ADA Generally

         Title III of the ADA provides in relevant 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. The Second Circuit has explained that the ADA's remedial goals include “eliminating widespread discrimination against the disabled and integrating the disabled into the mainstream of American life.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 189 (2d Cir. 2013).

         In order to state a claim under the ADA, Plaintiff must allege (1) that he is disabled within the meaning of the ADA; (2) that Defendant owns, leases, or operates a place of public accommodation; and (3) that Defendant discriminated against him by denying him a full and equal opportunity to enjoy the services at the Property. Camarillo v. Carrols Corp., 518 F.3d 153, 156 (2d Cir. 2008); see also Rosa v. 600 Broadway Partners, LLC, 175 F.Supp.3d 191, 198-99 (S.D.N.Y. 2016). And a party, like Plaintiff, seeking injunctive and declaratory relief “cannot rely on past injury to satisfy the injury requirement but must show a likelihood that he or she will be injured in the future.” Deshawn E. by Charlotte E. v. Safir, 156 F.3d 340, 344 (2d Cir. 1998) (citing City of Los Angeles v. Lyon, 461 U.S. 95, 105-06 (1983)).

         II. The Motion to Dismiss is Granted Without Prejudice

         A. Rule ...

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