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ANGELA BROWN, Plaintiff, -against- MERMAID PLAZA ASSOCIATES LLC, Defendant.
March 8, 2018, Filed
March 8, 2018, Decided
Jeanne C Miller, Mediator, Pro se, New York, NY USA.
For Angela Brown, Plaintiff: Adam Saul Hanski, Glen Parker, LEAD ATTORNEYS, Parker Hanski, LLC, New York, NY USA.
For Mermaid Plaza Associates Llc, Defendant: Jura C. Zibas, LEAD ATTORNEY, Wilson Elser, New York, NY USA; Stephen James Barrett, Willson Elser, New York, NY USA.
For Mermaid Plaza Associates Llc, Cross Claimant: Jura C. Zibas, LEAD ATTORNEY, Wilson Elser, New York, NY USA.
ANN M. DONNELLY, United States District Judge.
ANN M. DONNELLY
MEMORANDUM DECISION AND ORDER
ANN M. DONNELLY, District Judge.
On February 8, 2013, the plaintiff, Angela Brown filed this action against the defendant, Mermaid Plaza Associates, LLC,1 alleging that the defendant failed to provide a public accommodation in violation of 42 U.S.C. § 1985 , Title III of the Americans with Disabilities Act ("ADA") 42 U.S.C. §§ 12181 et seq., the New York State Human Rights Law (Executive Law § 296 ), the New York State Civil Rights Law § 40 . and the New York City Administrative Code § 8-107 . The plaintiff also asserted a cause of action for negligence.2 The defendant moved for summary judgment. For the reasons stated below, the defendant's motion is denied.
1. Facts and Procedural Background
The defendant, Mermaid Plaza Associates, LLC owns a small shopping plaza at 3015 Mermaid Avenue ("Mermaid Plaza") in Kings County, New York. (Compl., ECF No. 1, at ¶ 7.) The photograph below, taken from the plaintiff's opposition brief, presents an aerial view of the shopping plaza:
As the photograph demonstrates, the shopping plaza sits between two public sidewalks—West 31st Street and West 30th Street—and includes a small parking lot, a straight walkway connecting the two public sidewalks, and three retail stores: Rite Aid, Baskin Robbins/Dunkin' Donuts, and Rent-A-Center. ( Id. at ¶ 9; Pl.'s Mem. in Opp'n, ECF No. 97, at 3-4.) The walkway is the only means of accessing the retail stores in the plaza and has ramps sloped up on both sides of the walkway (the "West 30th Street ramp and the West 31st Street ramps"). (See ECF No. 97, at 3-4.)
The plaintiff, Angela Brown, has multiple sclerosis and uses a manual wheelchair. (Ex. F to Zibas Decl. ECF No. 93-3, at 13:7-8; 15:8-23.) She lives approximately two blocks from Mermaid Plaza, and frequents the Dunkin' Donuts and Rite Aid there. (Ex, F to Zibas Decl., ECF No. 93-3. 16:16-25; 19:7.) In order to get to Mermaid Plaza, the plaintiff uses Access-A-Ride paratransit, has someone drive her there in her truck, or uses her wheelchair. ( Id. at 14:17-15:9; 17:4.) The plaintiff alleges that because parts of the property are not accessible, she cannot visit the property as she would like. (ECF No. 1, at ¶¶ 25-31.)
a. Allegations in the Complaint
On February 28, 2013, the plaintiff filed this complaint, alleging that numerous architectural barriers on the defendant's property violated the 1991 and 2010 ADA Standards, the New York City Administrative Code, and/or the Building Code of the City of New York, including but not limited to the defendant's failure to provide " [*2] an accessible public entrance to the primary entrance from the sidewalk and/or street," "designated accessible parking spaces and access aisles with slopes no greater than 2% in any direction," and lack of "an accessible route from the access aisles to the sidewalk," (ECF No. 1, at ¶ 24.) The plaintiff sought injunctive relief and attorneys' fees and costs under the ADA, in addition to monetary damages under state and city law for emotional distress.
b. The Plaintiff's May 2, 2014 Deposition
The plaintiff identified several architectural barriers within Mennaid Plaza during her deposition. She testified that she had difficulty using her wheelchair on the West 30th Street and West 31st Street ramps of the shopping plaza.4 The slope of the ramps made it "awkward" and "difficult" for the plaintiff to "get up" on the ramps in her wheelchair. (Ex. F to Zibas Decl., ECF No. 93-3, at 18:3-23:19; 31:2-4; 38:6-39:12.) She also testified that the ramps were "cracked[,] awkward, and bumpy," that the ramps were not "a smooth ride up," that the ramps make the wheelchair "lean to the side," and that there was no mechanism to "make sure that [she] stay[ed] inside the ramp" in her wheelchair. ( Id.) She also complained that the bottoms of the ramps were not flush against the pavement, creating a rough transition from the ramps to the street. ( Id.) The plaintiff testified that before 2010, she used to walk up the ramp with a cane; because there were no handrails, she had to hold on to the walls of the building when she entered and exited the walkway. ( Id. at 30:22-25.)
In addition to the ramps, the plaintiff also had difficulty going through the entrance of Dunkin' Donuts; because the doors did not open in the same direction, she had to wait for someone to open both doors simultaneously before she could go through the entrance with her wheelchair. ( Id. at 18:7-18.) Finally, the plaintiff testified that the shopping plaza did not have handicap access signposts in the parking lot, that there were cracks in the pavement and the curbs, and that there were potholes in the parking lot. ( Id. at 19:17-20:20; 31:10-16; 34:7-10.)
The plaintiff claims that prior to her lawsuit, she complained about the condition of the parking lot and walkway to the employees at Dunkin' Donuts and Rite Aid. (PL's Counter-Rule 56.1 Statement ("Pl.'s Counter-Rule 56.1"), ¶ 2; Ex. F to Zibas Decl., ECF No. 93-3, 22:7-23:3.) The plaintiff told the cashiers at Dunkin' Donuts and Rite Aid, respectively, about the inaccessibility of the Dunkin' Donuts entrance and the conditions of the side ramps. (Ex. F to Zibas Decl., ECF No. 93-3, at 22:7-12; 23:13-19.) She also testified that she "probably" complained about the slope of the ramps and the cracks in the pavement. ( Id. at 34:15-23.) The plaintiff did not speak directly to the managers or the defendant about her concerns, nor did she write any letters of complaint. ( Id. at 24:6-12.)
The plaintiff testified that she last visited Dunkin' Donuts in April of 2014. (Def.'s Rule 56.1 Statement ("Def.'s Rule 56.1"), ¶ 11.) However, she contends that she does not visit the property as often as she would like because the property "was hard to get around there." (Ex. F to Zibas Decl., ECF No. 93-3, 19:6-12; Pl.'s Counter- [*3] Rule 56.1, ¶ 11.)
c. Expert Discovery
It is undisputed that at the time of construction, Mermaid Plaza was subject to the 1991 ADA Standards for Accessible Design ("1991 Standards"). (Ex. E to Zibas Decl., ECF No. 933, 19:12-20:2.)5 The parties also agree that any new construction, alterations, program accessibility, and barrier removal made to the property after March 15, 2012 are subject to the 2010 ADA Standards for Accessible Design ("2010 ADA Standards"). ( Id) The parties, however, dispute whether Mermaid Plaza was fully compliant with the 1991 ADA Standards and all applicable building codes when it was initially constructed. (Def.'s Rule 56.1, ¶ 1.)
The parties' dispute over the accessibility requirements of the ADA and the property's code compliance has spawned a number of expert opinions in this litigation. The plaintiff served her first expert report, prepared by Steven Winter Associates, Inc., on November 14, 2013, which identified, among other things, inadequate signage for the accessible parking spaces, excessive surface slopes of the accessible parking spaces, excessive slopes of various walkways and the West 30th and West 31st ramps, and lack of handrails on the ramps. (Defs.' Rule 56.1, ¶ 10; Ex. I to Zibas Decl. ECF No. 93-3.)
Subsequently, in April of 2014, the defendant made alterations to Mermaid Plaza. Specifically, it "added additional handicap signage for all handicap parking spaces, verified that all handicap parking was provided with an 8-feel access aisle, ensured that the drop curbs were code complaint, and patched settled asphalt in the parking area at the handicap drop curbs." (Def.'s Rule 56.1 ¶ 13; Ex. J to the Zibas Decl., ECF No. 93-3.) The defendant spent over $12,000 on these modifications. (Def.'s Rule 56.1 ¶ 13; Ex. J to the Zibas Decl., ECF No. 93-3.)
The plaintiff retained a second expert, Partners for Access LLC, to inspect the property after the defendant's modifications. (Defs.' Rule 56.1, ¶ 13-14. Pl.'s Counter-Rule 56.1 ¶ 1314.) The plaintiff served her second expert report on May 28, 2014, the upshot of which was that Mermaid Plaza was not ADA-compliant due to, among other things, the height of the newly installed accessible parking lot signs, the slope of the curb ramp in front of Dunkin' Donuts, the slopes and lack of handrails on the ramps, and the doorway entrance of Dunkin' Donuts. (Ex. K to the Zibas Decl. ECF No. 93-3; Pl.'s Counter-Rule 56.1 ¶¶ 13-15.)
Mennaid Plaza made additional modifications to the property in July of 2014. (Defs.' Rule 56.1, 16.) This time, the defendant spent over $18,000 installing new railings on the ramps, repairing additional asphalt in the parking lot, and adding more handicap parking spots. ( Id.) The defendant also retained its own expert from United Spinal Association, who concluded that the property was compliant with the ADA. ( Id., ¶ 17.)
In December of 2014, the plaintiff retained a third expert, ARCHbility, and served her third expert report. (Def.'s Rule 56.1 ¶ 18; Ex. N of the Zibas Decl., ECF No. 93-3.) Both parties agree that this expert report now identifies "all the current inaccessible conditions at [Mermaid Plaza] that must be remediated." (Pl.'s Counter-Rule 56.1 ¶ 19.) Specifically, the [*4] plaintiff's expert identified ADA violations in four areas of the property: (I) the slopes and handrails on the West 30th Street ramp; (2) the slopes and handrails on the West 31st Street ramp; (3) the slope of the parking lot access aisles in front of Rite Aid; and (4) the slope of the parking lot access aisles in front of Dunkin' Donuts. (Def.'s Rule 56.1 ¶ 20; Ex. N of the Zibas Decl.; ECF No. 93-3.) In response, in April of 2015, the defendant served a supplemental expert report from United Spinal Association, contesting the plaintiff's expert's findings. (Ex. O to the Zibas Decl., ECF No. 93-4.) Both sides' expert opinions are briefly summarized below:
i. West 30th Street Ramp
The parties agree that the ADA Standards require ramps to have a maximum slope of 1:12 (8.33%), and landings to have a maximum slope of 1:48 (2%). (See Ex. N of the Zibas Decl., ECF No. 93-3.) Both parties' experts, however, recorded different measurements for the slopes on the West 30th Street ramp. The plaintiffs expert measured a slope of 14.3% "at the bottom flag of concrete at the ramp immediately adjacent to the public sidewalk" and a slope of 5.4% at the landing at the top of the ramp. ( Id.) The defendant's expert recorded a slope of 8% at the "bottom flag" at the ramp and indicated that the sidewalk flags at the top of the ramp comply with the ADA because "handrails were extended to incorporate the portion of the ramp that exceeded 5% at the top of the ramp." (See Ex. O to the Zibas Decl., ECF No. 93-3.)
The plaintiff's expert contends that the handrails on the West 30th Street ramp do not extend beyond the bottom of the ramp run, as required by the ADA. (See Ex. N of the Zibas Decl., ECF No. 93-3.) However, the defendant's expert opined that the ADA exempts the defendant's non-compliance because full extension of handrails on the ramp would block the public sidewalk and create a "hazardous" condition for pedestrians. (See Ex. O to the Zibas Decl., ECF No. 93-3.)
ii. West 31th Street Ramp
The plaintiff's expert identified the following deficiencies with the West 31st Street ramp: excessive slopes at the "bottom flag of concrete at the ramp" and handrails that did not extend the full length of the ramp and beyond the bottom of the ramp run. (See Ex. N of the Zibas Decl., ECF No. 93-3.) The defense expert did not contest these findings; instead, he opined that the 1991 ADA Standards requires only that the defendant provide a single accessible route, and the defendant satisfied this requirement by providing the plaintiff an accessible route via the West 30th Street ramp. (See Ex. O to the Zibas Decl., ECF No. 93-3.)
iii. Parking Lot Access Aisles at Rite Aid and Dunkin' Donuts
Section 4.6.3 of the 1991 ADA Standards state that "parking spaces and access aisles shall be level with surface slopes not exceeding 1:50 (2%) in all directions." See Section 502.4 of the 2010 ADA Standards ("Slopes not steeper than 1:48 shall be permitted."). The experts do not dispute that the slopes of the parking lot access aisles are in violation of these technical requirements. (See Ex. O to the Zibas Decl., ECF No. 93-4.) Instead, they disagree as to whether it is feasible for the defendant to repave the parking lot to achieve [*5] compliant slopes on the access aisles. ( Id.)
The defendant also contends that a paving company who bid on the repaving work estimated the project to cost $135,000 and refused to commit to making the parking lot perfectly level. (Def.'s Rule 56.1 ¶ 23.) Repaving would have required that Mermaid Plaza be closed for seven to ten days for construction. ( Id.)6
STANDARD OF REVIEW
Summary judgment is appropriate only if the parties' submissions, in the form of deposition transcripts, affidavits, or other documentation, show that 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) ; see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242 , 247-48 , 106 S. Ct. 2505 , 91 L. Ed. 2d 202 (1986). "An issue of fact is 'material' for summary judgment purposes if it 'might affect the outcome of the suit under the governing law,'" and "an issue of fact is 'genuine' if 'the evidence is such that a reasonable jury could return a verdict for the nonmoving party.'" Shade v. Hous. Auth. of City of New Haven, 251 F.3d 307 , 314 (2d Cir. 2001) (citing Anderson, 477 U.S. at 248 ). The movant has the "burden of showing the absence of any genuine dispute as to a material fact." McLee v. Chrysler Corp., 109 F.3d 130 , 134 (2d Cir. 1997). "Once the moving party has met this burden, the party opposing summary judgment must identify specific facts and affirmative evidence that contradict those offered by the moving party to demonstrate that there is a genuine issue for trial." Ethelberth v. Choice Sec. Co., 91 F. Supp. 3d 339 , 349 (E.D.N.Y. 2015) (citing Celotex Corp. v. Catrett, 477 U.S. 317 , 324 , 106 S. Ct. 2548 , 91 L. Ed. 2d 265 (1986)). "The non-moving party 'may not rely on mere conclusory allegations nor speculation, but instead must offer some hard evidence showing that [their] version of the events is not wholly fanciful.'" Id. (quoting D'Amico v. City of N.Y., 132 F.3d 145 , 149 (2d Cir. 1998)).
In considering this motion, the district court's responsibility "is not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party." Knight v. U.S. Fire Ins. Co., 804 F.2d 9 , 11 (2d Cir. 1986); Kaytor v. Elec. Boat Corp., 609 F.3d 537 , 545 (2d Cir. 2010). Because the defendant moves for summary judgment, I draw all reasonable inferences in the plaintiff's favor.
The defendant moves to dismiss the plaintiff's ADA claims, arguing that she lacks standing to challenge the deficiencies identified in her third expert report, and that in any event, those deficiencies are now moot. The defendant also argues that if I dismiss the ADA claims, I should dismiss the plaintiff's state and city claims because they are based on the same underlying barriers and are governed by the same standards as the ADA claims. Alternatively, the defendant contends that the plaintiff's state law claims are defective because the plaintiff did not submit any evidence of damages, and the plaintiff did not serve the requisite notice on the New York State Attorney General as required by Section 40 of the New York State Civil Rights Law.
Since the parties do not argue that the plaintiff's related state and city claims should be analyzed under standards that are different from the ADA, I focus my analysis on the viability of the plaintiff' [*6] s claims under the ADA. For the reasons that follow, the defendant's motion for summary judgment is denied in its entirety.
1. ADA Claims
a. Standing for Injunctive Relief under the ADA
It is axiomatic that standing is an "irreducible constitutional minimum." Lujan v. Defenders of Wildlife, 504 U.S. 555 , 560 , 112 S. Ct. 2130 , 119 L. Ed. 2d 351 (1992). Thus, to invoke the jurisdiction of the federal courts, "a disabled individual claiming discrimination must satisfy the case or controversy requirement of Article III by demonstrating his standing to sue at each stage of the litigation." Chapman v. Pier I Imports (U.S.) Inc., 631 F.3d 939 , 946 (9th Cir. 2011). To establish standing, a plaintiff must prove: "(1) injury in fact, which must be (a) concrete and particularized, and (b) actual or imminent; (2) a causal connection between the injury and the defendant's conduct; and (3) that the injury is likely to be redressed by a favorable decision." Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 , 187 (2d Cir. 2013). Specifically, in the ADA context, courts have found standing where the plaintiff establishes that: "(1) she suffered past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiffs visits and the proximity of defendants' [services] to plaintiff's home, that plaintiff intended to return to the subject location." Bernstein v. City of New York, 621 F. App'x 56 , 57 (2d Cir. 2015) (summary order) (citing Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 , 187-88 (2d Cir, 2013)).
The defendant challenges only whether the plaintiff has suffered an injury-in-fact with respect to the West 30th Street and West 31st ramps and the parking lot access aisles in front of Dunkin' Donuts and Rite Aid. Citing the plaintiff's deposition testimony, the defendant claims that the plaintiff never "encountered, was not affected by, was not deterred by, and was unaware" of these deficiencies at the time of her complaint, and these violations are "entirely lawyer-driven."8 (ECF No. 93-6, at 10.) In response, the plaintiff maintains that she personally encountered and observed the accessibility barriers at issue but even if she did not, she has standing under Kreisler v. Second Ave. Diner Corp., 731 F.3d 184 (2d Cir. 2013) to remediate both encountered and unencountered architectural barriers related to her disability.
In ADA cases, "a 'broad view of constitutional standing' is appropriate because 'private enforcement suits are the primary method of obtaining compliance with the Act.'" Harty v. Spring Valley Marketplace LLC, No. 15-CV-8190 (NSR), [2017 BL 6015], 2017 U.S. Dist. LEXIS 3418 , [2017 BL 6015], 2017 WL 108062 , at *6 (S.D.N.Y. Jan. 9, 2017). In Kreisler v. Second Ave. Diner Corp., the Second Circuit ruled that a plaintiff "need not personally encounter each ADA violation within the [property] in order to seek its removal," and that "once a plaintiff establishes standing with respect to one barrier in a place of public accommodation, that plaintiff may bring ADA challenges with respect to all other barriers on the premises that affect the plaintiff's particular disability." 731 F.3d at 188 (citing Chapman, 631 F.3d at 950-51 ; Steger v. Franco, Inc., 228 F.3d 889 , 893-94 (8th Cir. 2000)); see also Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191 , 199 (S.D.N.Y. 2016). As the Second Circuit explained, a rule that limited [*7] a plaintiff's standing to those barriers she personally encountered would undermine the broad remedial nature of the ADA, "burden businesses and other places of accommodation with more ADA litigation, [and] encourage piecemeal compliance with the ADA." Kreisler, 731 F.3d at 189 .
Viewing the facts in the light most favorable to the plaintiff as I must, there is evidence in the record that the plaintiff personally encountered at least some of the current architectural barriers and has thus established standing. The complaint, though broad, alleges that the defendant failed to provide "an accessible route to the primary entrance from the sidewalk and/or street" and "designated accessible parking spaces and access aisles [with] slopes no greater than 2% in any direction." (ECF No. 1, ¶¶ 24.1, 24.XXXIII.) Moreover, the plaintiff testified that she has difficulty using her wheelchair on the property's side ramps; she complained that the slope of the ramps made it "awkward" and "difficult" for her to "get up" on the ramps in her wheelchair, that the ramps were "cracked[,] awkward, and bumpy," and that the ramps were not "a smooth ride up." (Ex. F to the Zibas Decl., ECF No. 93-3, at 18:3-23:19; 31:2-4; 38:6-39:12.) This testimony is sufficient to establish that the plaintiff was injured by the barriers in a personal and individual way.
Having established standing with respect to at least one of the barriers on the property, the plaintiff "may bring ADA challenges with respect to all other barriers on the premises that affect [her] particular disability," including the parking lot access aisles in front of Dunkin' Donuts and Rite Aid.9 Kreisler, 731 F.3d at 188 . See, e.g., Harty, [2017 BL 6015], 2017 U.S. Dist. LEXIS 3418 , [2017 BL 6015], 2017 WL 108062 , at *7 (plaintiff maintains standing to pursue injunctive relief under the ADA with respect to a list of alleged barriers even if he only personally experienced one of the alleged barriers); Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191 , 200 (S.D.N.Y. 2016) (holding the same on summary judgment). Thus, the plaintiff has standing to pursue injunctive relief under the ADA with respect to the alleged deficiencies identified in her third expert report.
The defendant maintains that Kreisler does not apply because the plaintiff was unaware of any inaccessible conditions other than the "bumpy" Rite Aid ramp, the height of the handicapped parking signs, and the interior of Dunkin' Donuts at the time of her complaint. The Second Circuit made it clear, however, that "nothing  would preclude [a plaintiff from] challeng[ing] ADA violations that [s]he became aware of after the lawsuit's commencement," "so long as the subsequently-discovered ADA violations relate to the plaintiff's disability." Kreisler, 731 F.3d at 188 n.5; Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191 , 200 (S.D.N.Y. 2016) ("Kreisler did not include an 'awareness at time of filing requirement.'").10
I also reject the defendant's argument that Kreisler does not apply because the plaintiff continued to visit Mermaid Plaza after she filed her complaint. (ECF No. 93-6, at 9.) Under the ADA, the barrier "need only interfere with the plaintiffs full and equal enjoyment of the facility"—"it is not necessary for standing purposes that the barrier completely [*8] preclude the plaintiff from entering or from using a facility in any way." Feltenstein v. City of New Rochelle, 254 F. Supp. 3d 647 , 655 (S.D.N.Y. 2017) (citing Chapman v. Pier 1 Imports (U.S.) Inc., 631 F.3d 939 , 947 (9th Cir. 2011). See also Access 4 All, Inc. v. G&T Consulting Co., LLC, No. 06 CIV. 13736 (DF), [2008 BL 306288], 2008 U.S. Dist. LEXIS 30594 , [2008 BL 306288], 2008 WL 851918 , at *4 (S.D.N.Y. Mar. 28, 2008) ("Courts have also found that, even where the physical or other barriers in question have not entirely prevented disabled plaintiffs from visiting or receiving services offered at a public accommodation, such that the plaintiffs can continue to visit the facility even with those barriers in place, the plaintiffs still have standing to sue under the ADA, when the barriers render their use of the facility more difficult, burdensome, or dangerous than it would be for individuals who are not disabled."). Here, the plaintiff testified that she does not visit the stores at Mermaid Plaza as often as she would like because "it's hard to get around there." (Ex. F to the Zibas Decl., ECF No. 93-3, at 19:3-7.) That testimony is sufficient to demonstrate an injury-in-fact. See also Kreisler, 731 F.3d at 188 (deterrence constitutes an injury under the ADA); Feltenstein, 254 F. Supp. 3d at 655 ("If a barrier violating [the ADA] standards relates to a plaintiff's particular disability, it is understood to impair the plaintiff's full and equal access, which constitutes discrimination under the ADA" and satisfies the injury-in-fact element of the standing inquiry.)
Alternatively, the defendant argues that the plaintiff's claims are moot because the alleged barriers identified in the plaintiff's third expert report do not violate the ADA, and "no further alterations are plausible, necessary or required." (ECF No. 93-6, at 10-20.) In response, the plaintiff argues that her claims are not moot because the alleged conditions still constitute ongoing violations of the ADA. (ECF No. 97, at 11-22.)
"A case becomes moot—and therefore no longer a 'Case' or 'Controversy' for purposes of Article III—when the issues presented are no longer 'live' or the parties lack a legally cognizable interest in the outcome." Already, LLC v. Nike, Inc., 568 U.S. 85 , 91 , 133 S. Ct. 721 , 184 L. Ed. 2d 553 (2013). Because Title III of the ADA allows only for injunctive relief, not monetary damages, a claim under the ADA can become moot if a defendant remedies the access barrier during the pendency of the litigation. Bacon v. Walgreen Co., 91 F. Supp. 3d 446 , 451 (E.D.N.Y. 2015) (citing Brief v. Albert Einstein College of Medicine, 423 Fed. Appx. 88 , 90 (2d Cir. 2011)). To establish mootness by voluntary cessation, the defendant must demonstrate that "(1) there is no reasonable expectation that the alleged violation will recur and (2) interim relief or events have completely and irrevocably eradicated the effects of the alleged violation." Clear Channel Outdoor, Inc. v. City of New York, 594 F.3d 94 , 110 (2d Cir. 2010). This standard is stringent: "As long as the parties have a concrete interest, however small, in the outcome of the litigation, the case is not moot." Thomas v. West, 242 F. Supp. 3d 293 , 297 (S.D.N.Y. 2017) (citing Ellis v. Bhd. of Ry., Airline & SS. Clerks, Freight Handlers, Exp. & Station Emps., 466 U.S. 435 , 442 , 104 S. Ct. 1883 , 80 L. Ed. 2d 428 (1984)); see also Gropper v. Fine Arts Hous., Inc., 12 F. Supp. 3d 664 , 670 (S.D.N.Y. 2014).
The defendant made laudable efforts to remedy the deficiencies on its property on at least two occasions, at [*9] considerable expense. Nevertheless, the plaintiff's claims with respect to each of the alleged barriers—the West 30th and 31st Street ramps and the parking lot access aisles—are not moot. The record contains genuine issues of material fact about each barrier's compliance with the ADA. Because the resolution of these questions requires a determination on the merits, the defendant's motion to dismiss the claims as moot is denied. See Thomas, 242 F. Supp. 3d at 298 (claims are "live" where resolution of the question at issue requires the application of the law to the case's specific facts).
i. West 3011' Street Ramp
In general, "resolution of the battle of experts is a matter best suited for trier of fact." Victory v. Hewlett—Packard Co., 34 F.Supp.2d 809 , 824 (E.D.N.Y.1999); see also Harris v. Provident Life & Acc. Ins. Co., 310 F.3d 73 , 79 (2d Cir. 2002). Here, the experts disagree about the measurement of the slopes on the West 30th Street ramp and whether those measurements comply with the ADA Standards. This factual dispute, alone, shows that the plaintiff's claims are not moot.
The defendant also argues that even if the West 30th Street ramp deviates from the ADA Standards, summary judgment is warranted under the "equivalent facilitation rule." The equivalent facilitation rule permits "[d]epartures from particular technical and scoping requirements of [the ADA Standards] by the use of other designs and technologies [if] the alternative designs and technologies used will provide substantially equivalent or greater access to and usability of the facility." Section 2.2 of the 1991 ADA Standards. See also Thomas, 242 F. Supp. 3d at 301 (discussing the rule). However, I cannot decide this issue as a matter of law on the current record. There is no evidence that the defendant provided the plaintiff with an "alternate design or technology." Nor is there any evidence that the ramp, in its current condition, provides the plaintiff the same or greater access than as an ADA-compliant ramp.11 To the contrary, the plaintiff testified that it was difficult for her to go up the ramp in her wheelchair, that the ramp "makes [her] wheelchair lean to the side," and that there is no mechanism to "make sure that [she] stay[ed] inside the ramp" in her wheelchair. ( Id. at 18:3-23:19; 31:2-4; 38:6-39:12.) Based on the evidence or lack thereof in the present record, I do not find that the West 30th Street ramp provides equivalent facilitation.
ii. West 31st Street Ramp
It is undisputed that the West 315t Street ramp has conditions that are not compliant with the ADA. (See Ex. E to the Zibas Decl., ECF No. 93-3, at 93:12-94:16.) Nonetheless, the defendant contends that the plaintiff's claims are moot because the ADA Standards require only that the defendant provide one accessible route from the public streets to an accessible building entrance, and the defendant fully complied with this requirement when it provided the plaintiff an accessible route via the West 30th Street ramp. (See ECF No. 93-6, at 16; Ex. O to the Zibas Decl., ECF No. 93-3, at 3-5.) Thus, the defendant argues, the West 31st Street ramp need not comply with the ADA. Putting aside the issue of whether the defendant has to provide one or two accessible [*10] routes on the property, the defendant's argument fails because it presupposes that the West 30th Street ramp constitutes an accessible route under the ADA. Since there are genuine issues of material fact about the accessibility of the West 30th Street ramp, the plaintiff's claims with respect to the West 31st Street ramp are not moot.
iii. Parking Lot Access Aisles
Section 4.6.3 of the 1991 ADA Standards provides that "parking spaces and access aisles shall be level with surface slopes not exceeding 1:50 (2%) in all directions." See Section 502.4 of the 2010 ADA Standards ("Slopes not steeper than 1:48 shall be permitted."). The defendant concedes that the slopes of the parking access aisles in front of Dunkin' Donuts and Rite Aid exceed the maximum slope permitted by both technical standards, but argues that the plaintiff's claims are moot because the plaintiff's recommendation—repaving the parking slopes to achieve a 2% slope in all directions—is "not technically feasible."
There are several factual disputes that preclude summary judgment on this issue. As an initial matter, there is a genuine issue of material fact as to whether the slopes of the access aisles in front of the Dunkin' Donuts and Rite Aid were altered as a result of the defendant's changes to the property in 2014. This is significant because the ADA has separate requirements for "alterations,"12 which affect the standards used to evaluate the parties' evidence. See Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191 , 207 (S.D.N.Y. 2016) ("A determination that a facility has undergone an 'alteration' has considerable significance with respect to the substance of the applicable legal standard."). If the defendant altered the access aisles in 2014, those areas must be made "readily accessible to disabled individuals 'to the maximum extent feasible.'" Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191 , 206 (S.D.N.Y. 2016) (citing Roberts v. Royal Atl. Corp., 542 F.3d 363 , 369 (2d Cir. 2008)); 28 C.F.R. § 36.402 . If there is an alteration, non-compliance with the ADA is excused only if "the nature of an existing facility makes it virtually impossible [for the alterations] to comply fully with applicable accessibility standards." Roberts, 542 F.3d at 371 ; see also 28 C.F.R. § 36.402 (the phrase "to the maximum extent feasible . . . applies to the occasional case where the nature of an existing facility makes it virtually impossible to comply fully with applicable accessibility standards through a planned alteration"),13 If the parking lot access aisles did not undergo an "alteration" pursuant to the ADA, the question is whether the removal of the architectural barriers is "readily achievable," which is defined as "easily accomplishable and able to be carried out without much difficulty or expense." Roberts, 542 F.3d at 369 ; 42 U.S.C. § 12181(9) ; see also Rosa, 175 F. Supp. 3d at 207 .14
Here, there are genuine issues of material fact as to whether the access aisles were altered. See Rosa, 175 F. Supp. 3d at 207 ("The determination whether a facility has undergone an 'alteration' involves a fact-specific inquiry centered on a broad application of the concept of 'usability.") While some evidence in the record suggests that alterations were made that affected the slope of the access aisles, other evidence [*11] suggests that none of the construction work altered the slope of the parking lot access aisles. (Compare Ex. P of the Zibas Decl., ECF No. 93-4, at 63:11-69:23 (defendant's expert testifying that there were two areas of the slopes of the accessible parking spaces and access aisles that were not compliant and were modified "subsequent to the complaint") with Exs. J and L of the Zibas Decl. (bill of costs identifying only "asphalt repairs" in the parking lot).
Moreover, even assuming that the more stringent alterations standard applies, questions of fact exists as to whether the plaintiff's proposal—repaving the parking lot spaces and access aisles to achieve a 2% slope—is "virtually impossible." The defendant relies on an August 13, 2015 bid from DuMor Construction to support its claim that the plaintiff's proposal is structurally and technically infeasible, but that bid states only that "[a] 2% pitch in the asphalt work is hard to achieve," not impossible. (ECF No. 93-6, at 17-18; Ex. Q to the Zibas Decl., ECF No. 93-4.) Moreover, the cost of the proposed work does not indicate that the plaintiffs proposed remedial action is impossible. See Roberts v. Royal Atl. Corp., 542 F.3d 363 , 371 (2d Cir. 2008) (the ADA's "maximum extent feasible" requirement "does not ask the court to make a judgment involving costs and benefits"). Given the genuine issues of material fact surrounding the parking lot access aisles, the defendant's motion to dismiss the plaintiffs claims as moot is denied.15
2. State and City Law Claims
In addition to her ADA claims, the plaintiff also assert that the defendant violated the New York State Human Rights Law, the New York State Civil Rights Law ("NYSCRL"), and the New York City Administrative Code. These state and city law claims are based on the same architectural barriers underlying her ADA claims.
The defendant contends that the plaintiff's state claims should be dismissed because she did not submit any evidence of monetary damages, physical injury, or emotional distress. (ECF No. 93-6, at 22.) While the plaintiff did not testify that she lost money or suffered physical injuries as a result of the defendant's conduct, the plaintiff may still be entitled to an award of damages under New York law. See, e.g., Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191 , 209 (S.D.N.Y. 2016) (precluding summary judgment for defendant on similar state claims even though the plaintiff testified that she did not lose any money or suffer physical injuries); Kreisler v. Second Ave. Diner Corp., No. 10 CIV. 7592 RJS, [2012 BL 231354], 2012 U.S. Dist. LEXIS 129298 , [2012 BL 231354], 2012 WL 3961304 (S.D.N.Y. Sept. 11, 2012), aff'd, 731 F.3d 184 (2d Cir. 2013) (awarding damages of $1,000 on state discrimination claims even though the plaintiff did not establish any particular damages other than that he feels discriminated against because he could not access the diner); Shariff v. Radamar Meat Corp., No. 11 CV 6369 NGG RML, [2014 BL 438721], 2014 U.S. Dist. LEXIS 44763 , [2014 BL 438721], 2014 WL 1311563 , at *5 (E.D.N.Y. Feb. 14, 2014), report and recommendation adopted as modified, No. 11-CV-6369 NGG RML, [2014 BL 89900], 2014 U.S. Dist. LEXIS 44029 , [2014 BL 89900], 2014 WL 1311565 (E.D.N.Y. Mar. 31, 2014) (plaintiff is entitled to statutory damages under the New York State Civil Rights law). Thus, I will not dismiss the plaintiff's state claims on this basis.
Alternatively, the defendant argues that I should dismiss [*12] the plaintiff's NYSCRL claim because she did not serve a Section 40-d notice on the New York State Attorney General at the time of her complaint. Section 40-d of the NYSCRL states that "[a]t or before the commencement of any action under this section, notice thereof shall be served upon the [A]ttorney [G]eneral" of the State of New York. N.Y. Civ. Rights Law § 40-d . Although the plaintiff submitted a Section 40 -d notice addressed to the Attorney General dated January 30, 2013, she did not include any proof of service with this notice. (Ex. 6 to the Parker Deci., ECF No. 96-6.) Nor did plaintiffs counsel attest in his declaration that the notice was actually sent to the Attorney General, or specify the date it was sent.
"[C]laims for violations of section 40 -c of the [NYSCRL] must be dismissed" when a plaintiff "fail[s] to give necessary notice to the Attorney General . . . before making those claims." Bebry v. ALJAC LLC, 954 F. Supp. 2d 173 , 180 (E.D.N.Y. 2013) (citing Sundaram v. Brookhaven Nat'l Labs., 424 F.Supp.2d 545 , 571 (E.D.N.Y. 2006)); see also DiPilato v. 7-Eleven, Inc., 662 F. Supp. 2d 333 , 354 (S.D.N.Y. 2009). The plaintiff is therefore directed to file on ECF the original proof of service on the Attorney General by March 16, 2018 to show that she complied with Section 40-d of the NYSCRL. Failure to comply with this deadline will result in the dismissal of the plaintiff's NYSCRL claims.
For the reasons above, the defendant's motion for summary judgment  is denied. The plaintiff must file on ECF a copy of the original proof of service on the Attorney General by March 16, 2018; failure to do so will result in the dismissal of the plaintiff's NYSCRL claim.
/s/ Ann M. Donnelly
ANN M. DONNELLY
United States District Judge
Dated: Brooklyn, New York
March 8, 2018
The plaintiff also named C&J Donuts, Inc. ("C&J") as a defendant in the Complaint. (Compl., ECF No. 1.) Mermaid Plaza Associates, LLC subsequently filed a cross-claim against C&J for contribution, indemnification, and breach of lease agreement. (Answer and Cross-Claim, ECF No. 9.) C&J did not respond to the Complaint and on November 29, 2013, the plaintiff voluntarily dismissed her claims against C&J. (Voluntary Dismissal, ECF No. 19.) To date, C&J has not responded to Mermaid's cross-claim.
Because the plaintiff voluntarily withdrew her claims of conspiracy and negligence on June 2, 2014 (Ex, 5 to the Parker Decl., ECF No. 96-5), I do not address the defendant's arguments with respect to these claims.
I take the facts from the defendant's Rule 56.1 Statement of Fact, the plaintiff's Counter-Rule 56.1 Statement of Fact, and any admissible affidavits, depositions, and exhibits. I construe all disputed facts in the light most favorable to the plaintiff, the nonmoving party. See Capobianco v. City of New York, 422 F.3d 47 , 50 n.1 (2d Cir. 2005).
As an initial matter, the parties dispute whether the ramps the plaintiff complained of during her deposition were the West 30th and West 31st Street side ramps or the "curb ramps" that the defendant claims are now fully compliant with the ADA. (See ECF No. 99, at 3.) I agree that the plaintiff's testimony is ambiguous; at several times during her deposition, the plaintiff testified about the inaccessibility of the "ramps" and it is unclear to which ramp she was referring. (See, e.g., ECF No. 93-3, at 19:3-24; 20: 17-20; 23:7-19; 34:4-10; 38:6-18.) However, because I must view the facts in the light most favorable to the plaintiff, and because there is evidence that the plaintiff used the side ramps to get to the retail stores (ECF No. 93-3, at 18:7-11; 32:10-15), I construe any ambiguity in the plaintiff's testimony to refer to the West 30th and West 31st street ramps.
Title III of the ADA requires public accommodation to provide equal access to the disabled. To clarify what constitutes "equal access" in specific circumstances, the Department of Justice promulgated accessibility standards that specify precise structural requirements. Kohler v. Flava Enterprises, Inc., 779 F.3d 1016 , 1018 (9th Cir. 2015).
The defendant also relies on the opinions and testimony of its expert, Dominic Marinelli, to argue that repaving the non-compliant access aisles is technically infeasible. (ECF No. 93-6, at 18). However, during this litigation, the defendant told the court that Marinelli was not a qualified expert on paving and that he could not opine on the feasibility of repaving the parking lot slope to comply with the ADA. (See ECF Nos. 76, 78.) Thus, I do not consider them.
Title III of the ADA prohibits discrimination "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 ...." 42 U.S.C. § 12182(a) . To prevail on a claim for violation of Title III, the plaintiff must establish (I) that she is disabled within the meaning of the ADA, (2) that the defendant owns, leases or operates a place of public accommodation, and (3) that the defendant discriminated against her on the basis of her disability. Heard v. Statue Cruises LLC, No. 16-CV-01079 (ALC), [2017 BL 219981], 2017 U.S. Dist. LEXIS 98665 , [2017 BL 219981], 2017 WL 2779710 , at *5-6 (S.D.N.Y. June 26, 2017). Title III of the ADA allows only for injunctive relief, not monetary damages. Bacon v. Walgreen Co., 91 F. Supp. 3d 446 , 451 (E.D.N.Y. 2015).
In support of its standing argument, the defendant also submitted a confidential proposed settlement agreement purportedly circulated by the plaintiff's counsel in August of 2013 as evidence of the plaintiff's state of mind at the time of the complaint. (See Defs.' Rule 56.1, ¶ 7.)
Specifically, the defendant argues that the plaintiff's proposed settlement agreement never sought injunctive relief with respect to the current list of barriers, and thus, the plaintiff was not injured by these barriers when she filed her complaint. Federal Rule of Evidence 408 precludes evidence of settlement offers "to prove or disprove the validity ... of a disputed claim." In addition, district courts have "wide discretion whether to admit or exclude" settlement evidence offered for other purposes. PRL USA Holdings, Inc. v. U.S. Polo Ass'n, Inc., 520 F.3d 109 , 116 (2d Cir. 2008). The proposed settlement agreement in this case is inadmissible. That the defendant relies on what was not said in the agreement does not change the analysis; admitting this evidence would directly undermine the policy of Rule 408 . See Sanders v. Madison Square Garden, L.P., 525 F. Supp. 2d 364 , 369 (S.D.N.Y. 2007) (precluding evidence that the plaintiff offered to settle the claim for a large sum of money because it would undermine "the notion that settlement negotiations are to be encouraged, that the use of settlement discussions in litigation will make parties reluctant to engage in such negotiations, and that settlement offers and demands are too tightly bound to the incentive to avoid litigation to cast much light on the underlying merits of a case in any event.").
There is no question that the barriers related to the parking lot access aisles would affect the plaintiff, who because of her disability, uses a wheelchair for mobility. Access aisles permit persons using a wheelchair to enter or exit a vehicle, and the plaintiff has testified that she sometimes travels to Mermaid Plaza by Access-A-Ride. (Ex. F to the Zibas Decl., ECF No. 93-3, at 14:17-21.)
The defendant cites Bernstein v. City of New York, No. 13-CV-04610 (CM)(SN), [2015 BL 39879], 2015 U.S. Dist. LEXIS 18810 (S.D.N.Y. Jan. 7, 2015), report and recommendation adopted, [2015 BL 41161], 2015 U.S. Dist. LEXIS 19023 (S.D.N.Y. Feb. 18, 2015). The Second Circuit vacated that decision and remanded the case to the district court. See Bernstein v. City of New York, 621 F. App'x 56 , 59 (2d Cir. 2015) (summary order). Moreover, as other courts have found, the district court's logic in Bernstein does not apply where, as here, the plaintiff has standing because she encountered at least one of the alleged barriers at issue. See Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d 191 , 200 n.6 (S.D.N.Y. 2016).
The cases that the defendant cites in support of its equivalent facilitation argument do not require a different result. In Kohler v. Flava Enterprises, Inc., 779 F.3d 1016 , 1019 (9th Cir. 2015), the Ninth Circuit concluded a dressing-room bench longer than the requisite 48 inches provided "substantially equivalent" access to wheelchair users because a person using a wheelchair could make a parallel transfer onto the bench, which was the key purpose of the 48—inch requirement. Here, the 1991 ADA Standards clearly state that "the least possible slope shall be used for any ramp," and the Appendix to the Standards further advises that "ramp slopes between 1:16 and 1:20 are preferred" because "[w]heelchair users with disabilities affecting their arms or with low stamina have serious difficulty using inclines." Sections 4.8.2, A4.8.2 of the 1991 ADA Standards. Assuming that the plaintiff's measurements are correct and that some of the ramp slopes are as high as 14.3%, the defendant has not explained how this steeper ramp gives the plaintiff equivalent or greater accessibility to the property. Similarly, decline to apply Jones v. Dollar Tree Stores, Inc., [2006 BL 61761], 2006 U.S. Dist. LEXIS 31766 (E.D. Cal. 2006), which involved an interior sign and a 1/4" variance from the technical standards; here, there is evidence that the slopes of the ramp far exceed the 8.33% permitted by the ADA Standards.
In the ADA context, "an alteration is a change to a place of public accommodation or a commercial facility that affects or could affect the usability of the building or facility or any part thereof." 28 C.F.R. § 36.402 .
Section 106.5 of the 2010 ADA Standards defines "technical infeasibility" in this way: "an alteration of a building or a facility . . . has little likelihood of being accomplished because existing structural conditions would require removing or altering a load-bearing member which is an essential part of the structural frame; or because other existing physical or site constraints prohibit modification or addition of elements, spaces, or features which are in full and strict compliance with the minimum requirements for new construction and which are necessary to provide accessibility."
The parties' burdens also differ.
If there are alterations, "once a plaintiff has met an initial burden of production identifying some manner in which the alteration could be, or could have been, made 'readily accessible and usable by individuals with disabilities, including individuals who use wheelchairs,' the defendant then bears the burden of persuading the factfinder that the plaintiff's proposal would be 'virtually impossible' in light of the 'nature of the facility.'" Roberts v. Royal Atl. Corp., 542 F.3d 363 , 372 (2d Cir. 2008). However, "[i]n order to make a prima facie showing that [barrier] removal is readily achievable, a plaintiff must articulate a plausible proposal for barrier removal, the costs of which, facially, do not clearly exceed its benefits." Rosa v. 600 Broadway Partners, LLC, 175 F. Supp. 3d at 207 (internal quotations omitted). "Once the plaintiff meets its burden, the burden shifts to the defendant to 'establish[ ] that the costs of a plaintiff's proposal would in fact exceed the benefits.'" Id .
The defendant also argues that the access aisles provide "equivalent access" to the property because the plaintiff continues to use the property and the defendant never received any complaints about the parking lot prior to this action. (ECF No. 93-6.) This argument fails, however, because there are genuine questions of fact as to whether the defendant were aware of any complaints prior to this action and whether the access aisles, in their current form, provide equivalent access to the property.