Shopping Center Alert ADA Litigation
A wave of lawsuits alleging violations of the Americans with Disabilities Act (“ADA”) have recently been brought against the landlords of scores of shopping centers and restaurants in Nassau, Suffolk, Queens, Westchester and Rockland Counties. They have been brought by a small number of disabled plaintiffs, most of whom do not live in New York and most of whose attorneys do not regularly practice law or have offices here.
According to the records of the U.S. District Courts of the Eastern and Southern Districts of New York, between August 2014 and May 2016, one resident of Florida represented by an attorney from Florida, brought fifty-one (51) such cases in Nassau and Suffolk County alone. Another resident of Florida has brought fourteen (14) such cases since 2015, and a resident of Queens has brought twenty-four (24).
Most of the complaints that we have reviewed contain virtually identical allegations and fail to indicate when the plaintiff was actually present at the subject property, when the plaintiff intends to return and what barriers to access the plaintiff personally encountered. In addition, most fail to name any tenant stores or restaurants as party defendants, instead naming only the landlord as a defendant. Such failures, among others, are potential grounds for dismissal of the
Nonetheless, according to the court records, it is apparent that the majority of such cases are promptly settled . . . likely encouraging more such lawsuits. The ADA does not authorize a plaintiff to sue for damages, but it does permit a successful plaintiff to obtain an award of reasonable attorney’s fees and costs from the defendants and an injunction compelling them to
perform “readily achievable” work to bring the premises into ADA compliance. The ability to recover attorney’s fees and costs from landlords and tenants appears to be a driving force behind these serial lawsuits. Settlements usually involve an agreement to perform certain ADA work at the premises and to pay a negotiated amount of plaintiff’s alleged attorney’s fees and costs, in exchange for a release from the plaintiff. Such resolutions do not, however, protect the property owner from being sued by a different plaintiff for ADA violations at the property.
Know The Law: In deciding whether to fight or settle, it is vitally important to understand the law as it pertains not only to you, but to the plaintiff as well. The mere fact that violations exist at the property should not control the decision (indeed some ADA violations tend to exist at most properties). Equally important is a plaintiff’s obligation to establish not only that he/she was personally and actually injured by specified ADA violations, but that it is reasonably likely that he/she will be injured at the property in the future if the alleged violations are not cured (i.e., that he/she is likely return to the property in the immediate future). Out-of-state ADA plaintiffs who live far from the property in question, with no prior patronage history and no specified reason to return, tend to have a more difficult time convincing courts that they are likely to return to the property.
Of equal importance, the ADA plaintiffs in these serial litigations tend to sue only the property owner and not the tenant(s) about whose store(s) they are complaining. To the extent that an ADA plaintiff alleges that violations exist in individual tenant spaces, but fails to join those tenants as defendants in the lawsuit, such violations are not justiciable in the absence of the tenants as party defendants. Thus, the plaintiff can be forced to either add such tenants as defendants or drop such associated claims from the complaint. Either result is beneficial to the landlord. The benefit of fewer ADA violations that may be litigated in the case narrows the scope of the plaintiff’s claims and any work to be performed at the property. The benefit of joining the tenants as defendants is that the addition of more party defendants not only enables the landlord to potentially spread the cost of defending against the lawsuit amongst such defendant tenants, but to also spread the cost of an award or settlement of potential plaintiff’s attorney’s fees and costs.
Know Your Property: The ADA serves an important public purpose of, among other things, working to ensure that places of “public accommodation,” such as shopping centers, hotels, stores and restaurants, are readily accessible to persons recognized by the statute as being “disabled.”
Compliance with ADA requirements is not only mandated by law, but is also a matter of good business. These requirements set forth specifications governing both the common areas of developed properties (i.e., parking lots, sidewalks, curb cuts, ramps, etc.) and the interior of tenant spaces (i.e., bathrooms open to the public and all associated bathroom fixtures, stalls and doors, table heights, counter heights, hallways, etc.).
With respect to common areas, the ADA specifications govern, among other things, the number, size and proper marking of handicapped parking spaces, the pathways from handicapped parking spaces to and from the stores and buildings at the property, the slopes of curb cuts, ramps and sidewalks, the necessity of hand rails, etc.
It is important to note that the mere fact that a property has been issued site plan approval, building permits and certificates of occupancy from a local municipality does not shield it from claims of ADA violations, and such approvals do not insure that the property is, in fact, ADA compliant.
As a matter of housekeeping, and to potentially help prevent ADA litigation, it is advisable to consider having the subject property evaluated by an ADA compliance consultant in order to troubleshoot areas that may be in need of correction. Many such items can typically be corrected relatively inexpensively. Certainly, when performing any new work at the property, it is essential to ensure that such work is performed in compliance with ADA standards and requirements and that contractors are aware of same.
An attorney in the Litigation Group at HMY will be happy to meet with you to discuss these issues in depth and provide a cost effective plan to take into account your unique needs.
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