Wheelchair Bound Plaintiff Lacks “Standing” to Sue for ADA Violations
In our August 9, 2016 newsletter we reported on the recent filing of a large number of lawsuits by a few disabled Florida residents, claiming that their rights under the Americans with Disabilities Act (“ADA”) had been violated at numerous shopping centers located throughout Nassau, Suffolk, Queens, Westchester and Rockland Counties. At least one Federal Court judge has commented that such cases appear to have “little or nothing to do with Congress’s purpose in enacting the ADA” and are “rather, an exercise in shooting ducks in a barrel . . . in order to generate a small amount of attorneys’ fees.” See, Taylor v. 312 Grand Street LLC, 15 Civ. 5410, 2016 WL 1122027, *5 (E.D.N.Y. March 22, 2016). Nonetheless, according to court records, the vast majority of these lawsuits have quickly settled, with the shopping center owners likely agreeing to pay the plaintiffs’ attorneys’ fees and costs and to cure certain of the alleged ADA violations. A few property owners, however, have been fighting back.
In Feltzin v. Triangle Properties #1, LLC, 14 Civ. 5131 (E.D.N.Y. Dec. 15, 2016) this firm successfully defended the owner of a shopping center located in Jericho, Nassau County, New York against claims brought by one Florida resident who has filed more than 70 such ADA cases during the past two years. The plaintiff alleged in his Complaint that, prior to moving to Florida, he lived in Nassau County in close proximity to the subject shopping center, that he “has visited the property,” “plans to return” and “desires to visit the Jericho Shopping Office Plaza not only to avail himself of the goods and services available at the property, but to assure himself that this property is in compliance with the ADA so that he and others similarly situated will have full and equal enjoyment of the property without fear of discrimination.” The Complaint listed numerous alleged ADA violations that were uncovered by a “preliminary inspection” both in the exterior common areas of the shopping center (i.e., the parking lots, curbs and accessible routes) and within tenant stores and restaurants. The plaintiff sought an injunction requiring the shopping center to cure the identified violations as well as an award of attorneys’ fees and costs.
On behalf of the shopping center, we filed a motion seeking dismissal of the Complaint, arguing that plaintiff had failed to sufficiently allege any actual “injury” that he suffered at the shopping center, and therefore lacked “standing” to sue under the ADA. We also asserted that the plaintiff failed to sufficiently show that he intended to return to the shopping center in the future from his home in Florida (which is a separate “standing” requirement), and that he had improperly failed to name the individual tenants as parties to the lawsuit. The United States District Court agreed with our first “standing” argument (i.e., lack of past actual injury), and, having done so, dismissed the Complaint on that ground and determined that it didn’t have to address the other arguments.
As the Court instructed, “[a] plaintiff asserting claims under Title III of the ADA must allege that he suffered an injury that is both ‘concrete and particular’ and ‘actual or imminent, not conjectural or hypothetical[,]’” and “it is not enough for a plaintiff to allege conditions that violate the ADA; he must also allege facts sufficient to establish that he has been injured by those violations.” Even where a plaintiff personally encounters conditions that allegedly violate the ADA, such encounter must cause an injury that is both concrete and particular to the plaintiff in order to be sufficient to establish standing.
Although the plaintiff alleged that he “encountered architectural barriers at the subject property” and that they “impaired [his] ability to park safely at the premises, to use restrooms safely and to access goods and services at the premises,” the Court held that such allegations were inadequate, stressing:
Plaintiff provides no additional information concerning either these alleged encounters or any resulting injuries. In fact, plaintiff provides no details at all concerning any instance in which he allegedly encountered a violation. As defendant rightly notes, plaintiff fails to allege: (a) that he was ever unable to maneuver his wheelchair on any ramps at the subject premises or was otherwise hindered from accessing the premises; (b) that he was ever hindered or restricted from accessing or utilizing any part of any tenant business; or (c) that his use of the restroom in any particular tenant business was ever hindered or restricted. * * * Without any supporting factual allegations, plaintiff’s claim that he ‘personally encountered’ each of a long list of violations amounts to no more than a conclusory recitation of the legal elements of a direct injury under the ADA. * * * Moreover, plaintiff’s allegations that the barriers he encountered have ‘impaired [his] ability to park safely at the premises, to use restrooms safely and to access goods and services at the premises’ are simply too conclusory to establish standing. Plaintiff makes no attempt to tether his laundry listof alleged violations to any alleged injury. Absent such a connection, plaintiff lacks standing.
Because the complaints in the plaintiff’s more than 70 other ADA cases that we have reviewed suffer from the same deficiencies, it appears that most, if not all, could have been dismissed had they been challenged, rather than having been settled by the defendant property owners for untold costs and legal fees. The ruling in Triangle Properties #1, LLC demonstrates that the courts will not hesitate to dismiss ostensibly sympathetic lawsuits where the most basic element – actual injury – is missing.
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