Fredkiey Hurley v. Tozzer, Ltd. d/b/a “Niagara”, 15-cv-02785 (S.D.N.Y. ___ 2018)

Steven DiSiervi, Esq. was recently successful in obtaining a rarely granted summary judgment on behalf of a defendant in a Title III ADA accessibility claim.

The plaintiff, Fredkiey Hurley, who is wheelchair bound and involved in over 30 ADA claims, visited Niagara bar in New York City. Niagara is the successor to the A7 club, which started the punk music movement in New York City. The bar and its facilities had not changed since 1980. The plaintiff testified that he was unable to gain access without the assistance of a bystander due to exterior steps. While inside he claimed to have encountered various non-compliant architectural barriers that discriminated on the basis of disability as he and other disabled patrons could not enjoy the facilities.

Plaintiff’s expert visited the location and claimed additional violations that were not encountered by plaintiff, which allegedly discriminated against disabled patrons. Upon completion of discovery, Niagara Bar moved for summary judgment on the grounds that plaintiff, a serial litigant, lacked constitutional standing to maintain the action and was unable to make a prima facie case.

The Court, in analyzing the standing argument, noted that a plaintiff must demonstrate (1) past injury, (2) that the discriminatory treatment will continue and (3) the plaintiff intends to return to the subject location. The Court found that the plaintiff failed to offer any evidence of an intent to return to the bar. More particularly, when asked at his deposition whether he intends to return to Niagara, the plaintiff stated “maybe.” Plaintiff argued that his intent to return could be inferred from the proximity of the bar to his residence. However, the Court adopted Mr. DiSiervi’s argument that the plaintiff has resided near the bar for 18 years and only entered once, which supported a finding that the plaintiff had no real intention of returning.

Most importantly, the Court found that, even if plaintiff did have standing, summary judgment was warranted because he failed to meet his burden of offering evidence to show that the removal of the non-compliant architectural barriers was readily achievable. Plaintiff and his expert alleged that the exterior steps required a compliant temporary exterior wheel chair ramp and the bar required a drop down section. However, Mr. DiSiervi successfully argued that mere proposals are insufficient. Rather, a plaintiff must show some analysis as to the ease and costs of such proposals.

The court rejected the plaintiff’s policy argument that “ending discrimination will always outweigh the cost of a modification.” Given that the plaintiff and his expert failed to offer any ease of modification or cost analysis, defendant was entitled to summary judgment as plaintiff could not make a prima facie case.