Irish v. Tropical Emerald LLC

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK

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KELLY IRISH,

Plaintiff,

MEMORANDUM & ORDER

- against - 18-CV-82 (PKC) (SJB)

TROPICAL EMERALD LLC, and RAINBOW

USA, INC.,

Defendants.

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PAMELA K. CHEN, United States District Judge:

Plaintiff Kelly Irish (“Plaintiff” or “Irish”) brings this action against Tropical Emerald LLC

(“Tropical Emerald”) and Rainbow USA, Inc. (“Rainbow”) (collectively, “Defendants”) alleging

discrimination in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C.

§ 12181 et. seq., the New York State Executive Law, the New York City Administrative Code,

and the New York State Civil Rights Law. Defendants have moved for summary judgment on all

claims. Also pending is Plaintiff’s motion to strike portions of Defendants’ reply in support of

their summary judgment motion. For the reasons that follow, Defendants’ motion for summary

judgment is granted and Plaintiff’s motion to strike is denied.

BACKGROUND

I. Factual Background1

A. Rainbow’s Store

Defendant Rainbow operates a retail clothing store known as the Rainbow Shop (“Store”),

located at 493 Fulton Street, in Brooklyn, New York. (Pl.’s Rule 56.1 Resp., Dkt. 110 (“Pl.’s

56.1”), ¶ 2.) The building in which the Store is located is owned by Defendant Tropical Emerald

and was built in or before 1937. (Id. ¶¶ 3–4.) Rainbow completed alterations to the Store in 2005,

but the nature of those alterations is unclear. (See Defs.’ Mem. of Law in Supp. of Motion for

Summ. J., Dkt. 100 (“Defs.’ Mem.”), at 10 n.16 (indicating that alterations were completed before

March 15, 2012); Pl.’s Mem. of Law in Opp’n to Defs.’ Mot. for Summ. J., Dkt. 109 (“Pl.’s

Mem.”), at 5 (stating that Defendants “admit” to completing alterations in 2005); Dominic

Marinelli, Rebuttal Expert Report Prepared for Defs. (June 11, 2021), Dkt. 104-2 (“June 2021

Marinelli Report”), at ECF 122 (stating that Rainbow completed alterations in 2005 “[t]o

accommodate their occupancy”).)

The Store has four sales floors, each of which is packed with merchandise. (Pl.’s 56.1

¶¶ 8–9; Decl. of Jonathan Hersch in Supp. of Defs.’ Mot. for Summ. J., Dkt. 103 (“Hersch Decl.”),

1 Unless otherwise noted, a standalone citation to a party’s 56.1 statement denotes that this

Court has deemed the underlying factual allegation undisputed. Any citation to a 56.1 statement

incorporates by reference the documents cited therein; where relevant, however, the Court may

cite directly to an underlying document. The Court construes any disputed facts in the light most

favorable to Plaintiff, as the non-moving party, for purposes of Defendants’ summary judgment

motion. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 157 (1970). However, where Plaintiff

either (i) admits or (ii) denies without citing to admissible evidence certain of the facts alleged in

Defendants’ Local Rule 56.1 Statement, (see Defs.’ Rule 56.1 Statement, Dkt. 99), the Court may

deem any such facts undisputed. See Local Rules of the United States District Courts for the

Southern and Eastern Districts of New York 56.1(c)–(d).

2 Citations to “ECF” refer to the pagination generated by the Court’s CM/ECF docketing

system and not the document’s internal pagination.

¶¶ 4–5; Tr. of Pl. Dep., Dkt. 101-1 (“Pl. Dep. Tr.”), at 107:4–16.) Merchandise is displayed on

moveable merchandise racks and on the side walls. (Pl.’s 56.1 ¶¶ 9, 13.) On three of the floors,

the moveable racks are spaced closely together “in order to maximize the amount of inventory on

the sales floors.” (Id. ¶ 9; Hersch Decl. ¶ 5.) According to Jonathan Hersch, who is Rainbow’s

Vice President of Planning and Allocations, “[i]t is critical to Rainbow’s merchandising strategy

that [Rainbow] place as much inventory in as many styles as possible on the floor as [Rainbow’s]

prices are meant to accommodate shoppers with limited means, and the Store has limited backroom

storage space.” (Hersch Decl. ¶ 5.)

B. Plaintiff’s Visit to the Store

Plaintiff visited the Store in 2017. (Pl.’s 56.1 ¶ 19; Pl. Dep. Tr. 28:4–11, 29:15–18, 88:2–

15.) During that visit, Plaintiff, who uses a wheelchair, encountered barriers and accessibility

issues that made it difficult for her to navigate the Store and shop for clothing. (Pl.’s 56.1 ¶¶ 1, 19–

21; Pl. Dep. Tr. 90:13–21, 92:15–93:8, 108:6–20.) In particular, the aisles between the clothing

racks on the bottom floor were too narrow for Plaintiff’s wheelchair and, as such, Plaintiff was

unable to look at the clothing. (Pl.’s 56.1 ¶ 21; Pl. Dep. Tr. 90:13–20, 93:5–8.) Plaintiff asked a

Store attendant to move the racks so that Plaintiff “could get through,” but was informed that the

attendant was “not allowed to move them.” (Pl. Dep. Tr. 90:22–91:3.) Plaintiff then spoke with a

manager, who reiterated that Store employees were “not allowed to move [the racks].” (Pl. Dep.

Tr. 91:2–8.) Plaintiff told the manager that she was unable to “get through the aisles to see the

clothing,” to which the manager responded: “I don’t know what to tell you.” (Pl. Dep. Tr. 91:3–

14.) Plaintiff left the Store feeling frustrated and has not been back since. (Pl. Dep. Tr. 91:13–16,

93:21–23.)

C. Defendants’ Subsequent Remediation Efforts

After this lawsuit was filed in January 2018, Defendants took certain steps to remediate the

accessibility barriers identified by Plaintiff and her expert, Jimmy Zuehl (“Zuehl”). The Store

created a wheelchair accessible route through the middle of each sales floor that connects “the

front of the store . . . and the rear of the store (including the escalator, passenger elevator, and the

sales and service counter).” (Pl.’s 56.1 ¶ 30; Jimmy Zuehl, Second Expert Report Prepared for Pl.

(Feb. 11, 2021), Dkt. 104-1 (“Feb. 2021 Zuehl Report”), at ECF 22–28.) The “Store posted

signage depicting the International Symbol of Accessibility along the accessible main aisles and

at the cash register on each floor . . . notifying customers that they can ask Store staff for

assistance.” (Pl.’s 56.1 ¶ 12, 30; Decl. of Dominic Marinelli, Dkt. 104 (“Marinelli Decl.”), ¶¶ 22,

24; June 2021 Marinelli Report, at ECF 18–20; Defs.’ Excerpts of Tr. of Jimmy Zuehl Dep., Dkt.

101-2 (“Defs.’ Zuehl Dep. Tr.”), at 136:15–22.) On request, “Store staff widen the aisles between

the [moveable merchandise display] racks [] by pulling the racks apart to allow persons in

wheelchairs to travel in between the racks of merchandise and between those racks and the Store’s

side walls.”3 (Pl.’s 56.1 ¶ 12, 30; see also Marinelli Decl. ¶¶ 22, 24; June 2021 Marinelli Report

at ECF 20.) Defendants also remediated the accessibility issues concerning the Store’s entrances

and exits. (See Pl.’s 56.1 ¶¶ 14–18, 30; June 2021 Marinelli Report at ECF 12–18, 21–22.)

II. Procedural History

Plaintiff initiated this action on January 5, 2018, naming as defendants Tropical Emerald

and Chaps, Inc. (“Chaps”). (Compl., Dkt. 1.) On June 21, 2019, Plaintiff filed the operative

3 While this was not Plaintiff’s experience during her 2017 visit to the Store, Defendants

have put forth evidence demonstrating that the Store has changed its practices in this regard and

Plaintiff has not introduced any evidence to the contrary.

Amended Complaint, which dropped Chaps as a defendant and added Rainbow in its place.4 (Am.

Compl., Dkt. 26 (“Am. Compl.”).) The Amended Complaint alleges that the Store is inaccessible

to individuals who use wheelchairs due to a lack of accessible entrances, exits, check-out counters,

check-out lines, and routes through the store. (Id. ¶ 26.)

On July 30, 2021, after numerous discovery disputes and extensions (see, e.g., Dkts. 36,

41, 44, 62; 8/26/2019 Docket Order; 10/24/2019 Docket Order; 5/18/2020 Docket Order),

Defendants requested a pre-motion conference (“PMC”) for an anticipated motion for summary

judgment (Dkt. 69). The Court denied the PMC as unnecessary and granted Defendants leave to

file their anticipated motion. (8/10/2021 Docket Order.) Defendants served their motion for

summary judgment and supporting papers on October 21, 2021. (See Dkt. 74.)

On October 22, 2021, Plaintiff moved to strike the declaration of Rainbow Vice President

Hersch, which Defendants had submitted in support of their motion for summary judgment. (See

Dkt. 75.) The Court referred the strike motion to the Honorable Sanket J. Bulsara. (See 10/25/2021

Docket Order.) Judge Bulsara granted Plaintiff’s motion. (Dkt. 78.) After Defendants objected

(see Dkt. 83), the undersigned affirmed in part and modified in part Judge Bulsara’s order (Dkt.

89). Specifically, the Court struck portions of Hersch’s declaration, but permitted Defendants to

submit an amended Hersch declaration in support of their motion for summary judgment. (Id.)

The Court adopted a revised briefing schedule to allow Defendants to revise their motion for

summary judgment and supporting papers accordingly. (See 7/25/2022 Docket Order.)

The motion for summary judgment was fully briefed on March 10, 2023. (See Dkts. 98–

110.) Shortly thereafter, Plaintiff filed a motion to strike “Defendants’ Reply to Plaintiff’s

4 The Court respectfully directs the Clerk of Court to terminate Chaps, Inc. from the docket

in light of the Amended Complaint. (See Dkt. 26.)

Response to Defendants’ Statement of Undisputed Material Facts Pursuant to FRCP 56.1” (see

Defs.’ Reply Rule 56.1 Statement, Dkt. 106), and “the 145 lines of footnotes” in the memorandum

of law that accompanied Defendants’ reply brief. (Pl.’s Mot. to Strike, Dkt. 111 (“Pl.’s Strike

Mot.”); see Defs.’ Reply in Supp. of Mot. for Summ. J., Dkt. 105 (“Defs.’ Reply”).) Defendants’

motion for summary judgment and Plaintiff’s motion to strike are currently before the Court.

SUMMARY JUDGMENT STANDARD

To obtain summary judgment, the moving party must establish that “there is no genuine

dispute as to any material fact,” and, thus, that the party is “entitled to judgment as a matter of

law.” Fed. R. Civ. P. 56(a). In making this determination, the Court must view all facts “in the

light most favorable” to the non-moving party. Holcomb v. Iona Coll., 521 F.3d 130, 132 (2d Cir.

2008). “Where the undisputed facts reveal that there is an absence of sufficient proof as to one

essential element of the claim, any factual disputes with respect to other elements become

immaterial and cannot defeat a motion for summary judgment.” Chandok v. Klessig, 632 F.3d

803, 812 (2d Cir. 2011) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986)).

“The moving party bears the burden of showing that he or she is entitled to summary

judgment.” Ramirez v. Rifkin, 568 F. Supp. 2d 262, 267 (E.D.N.Y. 2008). Where the defendant

is the moving party, there is “no express or implied requirement” that the defendant “negat[e] [the

plaintiff’s] claim” with evidence of its own, as long as it “point[s] out to the district court . . . that

there is an absence of evidence to support [the plaintiff’s] case.” Celotex Corp., 477 U.S. at 323,

325 (emphasis omitted). Once a defendant has met this burden, the plaintiff must “do[] more than

simply rely on the contrary allegation[s] in her complaint,” Adickes, 398 U.S. at 160, and “go

beyond the pleadings” to “designate specific facts showing that there is a genuine issue for trial.”

Celotex Corp., 477 U.S. at 324 (internal quotation marks omitted); see also D’Amico v. City of

N.Y., 132 F.3d 145, 149 (2d Cir. 1998) (explaining that a non-moving party “may not rely on mere

conclusory allegations nor speculation, but instead must offer some hard evidence” to defeat

summary judgment) (collecting cases).

DISCUSSION

Plaintiff’s Amended Complaint alleges that the Store is inaccessible to individuals who use

wheelchairs due to a lack of accessible entrances, exits, check-out and service counters, check-out

lines, and circulation routes through the store. (Am. Compl. ¶ 26.) It is undisputed that after

Plaintiff’s expert Zuehl inspected the Store on May 16, 2018 and again on January 22, 2021 (see

generally Jimmy Zuehl, Expert Report Prepared for Pl. (May 25, 2018), Dkt. 104-1 (“May 2018

Zuehl Report”), at ECF 2–18; Feb. 2021 Zuehl Report at ECF 19), Defendants remediated the

majority of accessibility issues that Zuehl had identified. (Pl.’s 56.1 ¶ 30; see also Defs.’ Mem. at

7–8; Am. Compl. ¶ 26.)5 Thus, the core issue remaining in this lawsuit is whether the Store’s

merchandise display areas—and specifically the paths of travel through those areas—violate the

ADA and/or its implementing regulations.6

5 Because a private individual may obtain injunctive relief only for violations of Title III

of the ADA, Title III claims “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);

see also Thomas v. Ariel W., 242 F. Supp. 3d 293, 305 (S.D.N.Y. 2017). Here, Zuehl initially

identified accessibility issues related to the Store’s entrances, exits, and circulation routes, but did

not identify any issues related to the check-out or service counters. Plaintiff does not dispute that,

after Zuehl’s inspections, Rainbow remediated the accessibility issues concerning the entrances,

exits, and paths of travel “from the entrance through the middle of the Store, to the sales and service

counters, escalators, and elevators.” (Pl.’s 56.1 ¶ 30; see also Defs.’ Mem. at 7–8.) Thus, the

Court dismisses Plaintiff’s claims relating to those accessibility issues as moot.

6 Plaintiff concedes that “[t]he disputed issues remaining in this litigation concern[] the

fixed and non-fixed merchandise display areas.” (Pl.’s Mem. at 2.) To the extent that the Amended

Complaint identified any additional accessibility issues, the Court considers those claims

abandoned. See Kovaco v. Rockbestos-Surprenant Cable Corp., 834 F.3d 128, 143 (2d Cir. 2016).

I. ADA Legal Framework

Title III of the ADA (“Title III”) provides 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 . . . .” 42 U.S.C.

§ 12182(a); accord Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008) (quoting 42

U.S.C. § 12182(a)). To bring a Title III claim, a plaintiff must “establish that (1) he or she is

disabled within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of

public accommodation; and (3) that the defendants discriminated against the plaintiff within the

meaning of the ADA.” Roberts, 542 F.3d at 368. For the purposes of this motion, only the last

element—whether Plaintiff was discriminated against—is in dispute.

A plaintiff can establish discrimination by demonstrating that a place of public

accommodation fails to comply with the applicable accessibility standards. See Rosa v. 600

Broadway Partners, LLC, 175 F. Supp. 3d 191, 199 (S.D.N.Y. 2016). The relevant standard

depends in part on whether the facility at issue has been “altered . . . in a manner that affects or

could affect [its] usability” since the ADA’s effective date of January 26, 1992. Roberts, 542 F.3d

at 368; see also 28 C.F.R. § 36.402(b). “If alterations [to a facility] have been made, a defendant

‘discriminates’ if those altered areas—and paths of travel to altered areas that ‘contain[] a primary

function’—are not made readily accessible to disabled individuals ‘to the maximum extent

feasible.’” Roberts, 542 F.3d at 369 (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)); see also Antolini

v. Nieves, No. 19-CV-7645 (VSB), 2022 WL 4219655, at *5 (S.D.N.Y. Sept. 13, 2022) (“[A]ny

alteration made to a public accommodation after January 26, 1992 ‘shall be made so as to ensure

that, to the maximum extent feasible, the altered portions of the facility are readily accessible to

and usable by individuals with disabilities, including individuals who use wheelchairs.’” (quoting

Roberts, 542 F.3d at 367 n.2)).

In the absence of alterations, “a defendant nonetheless ‘discriminates’ if it fails to remove

any existing barriers to accessibility where such removal ‘is readily achievable.’” Roberts, 542

F.3d at 369 (quoting 42 U.S.C. § 12182(b)(2)(A)(iv)).7

II. Application to the Merchandise Display Areas

Broadly speaking, Plaintiff contends that the Store’s merchandise display areas are

inaccessible to individuals who use wheelchairs due to the tight placement of moveable

merchandise racks. (See generally Pl.’s Mem.) As noted, it is undisputed that a wheelchair

accessible route (i.e., a path that is at least 36 inches wide) runs through the middle of each sales

floor. (See Pl.’s 56.1 ¶ 30); 1991 Standards for Accessible Design (“1991 Standards”), 28 C.F.R.

part 36 app. D § 4.2.1. However, many of the surrounding aisles are too narrow for a wheelchair

because the moveable merchandise racks are placed closely together. (Pl.’s 56.1 ¶ 31.) Plaintiff

also argues that the placement of the moveable merchandise racks obstructs the accessibility of

fixed merchandise display racks located on the walls around the perimeter of each floor. (See Pl.’s

Mem. at 4–5.) According to Plaintiff, these accessibility issues amount to discrimination within

the meaning of the ADA under either the Alterations Standard or Barrier Removal Standard. (See

generally Pl.’s Mem.) For their part, Defendants argue that only the Barrier Removal Standard

applies, and that Plaintiff has failed to carry her burden of proposing a readily achievable method

of barrier removal. (Defs.’ Mem. at 10–14.)

7 For ease of reference, the Court refers to these two standards as the “Alterations Standard”

and the “Barrier Removal Standard.”

A. Plaintiff’s Claims Under the Alterations Standard

As noted, the ADA requires a place of public accommodation that makes “alterations” to

its facility “to make [the] alterations in such a manner that, to the maximum extent feasible, the

altered portions of the facility are readily accessible to and usable by individuals with disabilities,

including individuals who use wheelchairs.” 42 U.S.C. § 12183(a)(2); accord Roberts, 542 F.3d

at 368. The ADA’s implementing regulations define “alteration” as “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(b); accord Range v. 230 W. 41st St. LLC, No.

17-CV-149 (LAP), 2020 WL 3034800, at *4 (S.D.N.Y. June 5, 2020); see also Roberts, 542 F.3d

at 369 (explaining that, under the ADA’s implementing regulations, “the concept of ‘usability’

appears to be central to determining whether an alteration has been made”). Consistent with this

definition, “[t]he determination whether a facility has undergone an ‘alteration’ involves a

fact-specific inquiry centered on a broad application of the concept of ‘usability.’” Rosa, 175 F.

Supp. 3d at 206 (citation omitted). The plaintiff bears the initial burden of production to establish

that an alteration occurred. “If a plaintiff ‘identifies a modification to a facility and . . . makes a

facially plausible demonstration that the modification is an alteration under the ADA,’ the burden

shifts to the defendant ‘to establish that the modification is in fact not an alteration.’” Kreisler v.

Second Ave. Diner Corp., No. 10-CV-7592 (RJS), 2012 WL 3961304, at *10 (S.D.N.Y. Sept. 11,

2012) (cleaned up) (quoting Roberts, 542 F.3d at 371), aff’d, 731 F.3d 184 (2d Cir. 2013). Upon

determining that a particular modification qualifies as an “alteration” under the ADA, the Court

must then decide “whether the alteration was made readily accessible and usable to disabled

individuals to the ‘maximum extent feasible.’” Roberts, 542 F.3d at 371 (quoting 42 U.S.C.

§ 12183(a)(2)).

“Under the ADA’s ‘maximum extent feasible’ requirement, alterations must be made

accessible ‘except where providing [accessibility] would be virtually impossible in light of the

“nature of an existing facility.”’” Range, 2020 WL 3034800, at *4 (quoting Roberts, 542 F.3d at

371). Notably, the “‘maximum extent feasible’ requirement does not ask the court to make a

judgment involving costs and benefits.” Roberts, 542 F.3d at 371 (“The statute and regulations

require that such facilities be made accessible even if the cost of doing so—financial or

otherwise—is high.”). Moreover, “because both the statute and regulations require that the

alterations themselves be made to provide the maximum feasible accessibility, a court’s

assessment of feasibility must be made with respect to the state of the facility before the alterations

in question were made, rather than the facility’s post-alteration state.” Id. at 372. The plaintiff

has the initial burden of production of “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[.]’” Rosa, 175 F. Supp. 3d at 206–07 (quoting Roberts, 542 F.3d

at 372). 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, 542 F.3d

at 372 (quoting 42 U.S.C. § 12183, 28 C.F.R. § 36.402); see also Range, 2020 WL 3034800, at

*4.

Defendants argue that the Alterations Standard is inapplicable to Plaintiff’s claims because

the moveable merchandise racks at issue are governed by the ADA’s Barrier Removal Standard as

a matter of law. (See, e.g., Defs.’ Reply at 6.) As Defendants point out, the ADA’s implementing

regulations explicitly discuss “rearranging . . . display racks” in the context of the Barrier Removal

Standard. (Defs.’ Mem. at 10 (citing 28 C.F.R. § 36.304(b)(4))); see also 28 C.F.R. § 36.304(f)

(explaining that, under Barrier Removal Standard, “[t]he rearrangement of temporary or movable

structures, such as . . . display racks is not readily achievable to the extent that it results in a

significant loss of selling or serving space” (emphasis added)). Indeed, by contrast, the regulations

state that the Alterations Standard applies “to fixed or built-in elements of buildings [or]

structures[.]” 28 C.F.R. § 36.406(b). A U.S. Department of Justice (“DOJ”) opinion letter and the

DOJ’s Technical Assistance Manual also support this interpretation. (See U.S. Dep’t of Justice,

Opinion Letter 213 (Feb. 10, 1998), Dkt. 101-3, at ECF 4 (“[T]he ADA requires that accessible

paths be provided to all fixed racks and shelving in new construction, and that accessible paths be

provided to movable racks to the extent that it is ‘readily achievable’ to do so.”)); see also U.S.

Dep’t of Justice, ADA Title III Technical Assistance Manual (Nov. 1, 1993), at 4.5100,

https://www.ada.gov/resources/title-iii-manual/ (last visited March 28, 2024). Additionally,

courts “have expressed reluctance” to apply the Alterations Standard to moveable objects,

including moveable merchandise display racks. Thomas, 242 F. Supp. 3d at 304–05 (citing Eiden

v. Home Depot USA, Inc., No. 04-CV-977 (LKK), 2006 WL 1490418, at *12 (E.D. Cal. May 26,

2006)); see, e.g., Colo. Cross-Disability Coal. v. Too (Del.), Inc., 344 F. Supp. 2d 707, 709–15 (D.

Colo. 2004) (concluding that the Barrier Removal Standard applied to moveable display racks in

the defendant’s stores); see also Thomas v. Kohl’s Corp., No. 17-CV-5857, 2018 WL 704691, at

*4–5 (N.D. Ill. Feb. 5, 2018) (applying Barrier Removal Standard to moveable display racks in

store); Kamal v. Kohl’s Corp., No. 18-CV-25 (JDP), 2019 WL 1051007, at *2–3 (W.D. Wis. Mar.

5, 2019) (same); Lieber v. Macy’s W., Inc., 80 F. Supp. 2d 1065, 1077 (N.D. Cal. 1999) (“[T]he

spacing of moveable display racks is governed by the more general ‘readily achievable’ [Barrier

Removal Standard] of the ADA.”). The Court therefore concludes that the Alterations Standard

is inapplicable to Plaintiff’s claims concerning the aisles between the moveable merchandise

display racks. See infra Discussion § II.B (discussing Plaintiff’s claims under the Barrier Removal

Standard).

Nevertheless, Plaintiff argues that the Alterations Standard “applies because Defendants

admit that ‘to accommodate their occupancy, Rainbow Shop completed alterations prior to []

March 15, 2012 (in 2005)[.]’” (Pl.’s Mem. at 5.)8 Plaintiff cites to a footnote in Defendants’ brief,

which states that “alterations were completed before [] 2012” (see Defs.’ Mem. at 10 n.16), and a

single sentence in the report of Defendants’ expert, Dominic Marinelli, explaining that, “[t]o

accommodate their occupancy, Rainbow [] completed alterations prior to [] March 15, 2012 (in

2005)” (see June 2021 Marinelli Report at ECF 12). Plaintiff does not, however, cite to any

evidence concerning the scope or nature of those alterations.9 (See generally Pl.’s Mem. at 5–6);

8 The relevance of March 15, 2012 is that alterations performed after that date must comply

with more recent ADA standards, commonly referred to as the 2010 Standards, whereas alterations

begun prior to that date could choose to comply with the 1991 Standards. See Thomas, 242 F.

Supp. 3d at 299–300 (citing 28 C.F.R. § 36.406 et seq.). Alterations performed between the ADA’s

effective date and March 15, 2012 are typically evaluated under the 1991 Standards. See id.

9 In her brief, Plaintiff also argues that “Defendants performed over one million dollars’

worth of alterations to the interior of the Store” in 2012. (Pl.’s Mem. at 5–6.) To support this

argument, Plaintiff cites to a “Cost Affidavit,” which is attached as an exhibit to a declaration

submitted by Plaintiff’s counsel (see Dkts. 108, 108-1), that Defendants purportedly filed with the

New York City Department of Buildings (see Pl.’s Mem. at 5–6). Notably, however, Plaintiff does

not cite to this document anywhere in her 56.1 Statement, including in response to Defendants’

assertion that the Store had not been altered within the meaning of the ADA after March 15, 2012.

(See Pl.’s 56.1 ¶ 5.) The Court further notes that, somewhat bafflingly, Plaintiff did not submit

any statement of additional facts. (See generally Pl.’s 56.1.) In any event, this evidence does not

establish whether the alterations were made to the merchandise display areas at issue in this case

or whether the alterations listed in the document were actually completed. (See Dkt. 108-1; see

also Pl.’s Mem. at 5 (noting that the document identifies alterations such as “modification to

interior partitions, flooring, installed cash wraps, and architectural modifications associated with

new escalator openings, slat walls [sic] finishes, painting” (quoting Dkt. 108-1))); see Lockhart v.

Coreas, No. 10-CV-1644 (SJF) (ETB), 2011 WL 2516569, at *10 (E.D.N.Y. June 21, 2011)

(concluding that similar document was insufficient to demonstrate “the absence of an issue of

whether defendant actually made alterations that would require compliance with the ADA”).

Moreover, given that Plaintiff provides no information concerning the source of this document, it

Antolini, 2022 WL 4219655, at *8 (concluding that plaintiff failed to meet her burden of showing

alterations occurred where plaintiff pointed to no evidence “demonstrating that alterations

occurred or, even if they had, what features of the [p]remises were altered, when they were altered,

or how they were altered”). Critically, the Alterations Standard is “not triggered by any alteration

to a property writ large; the alteration and the alleged violation must relate to the same ‘portions

of the facility.’” Antolini v. Thurman, No. 19-CV-9674 (JMF), 2021 WL 3115169, at *6 (S.D.N.Y.

July 21, 2021) (quoting 42 U.S.C. § 12183(a)(2)), aff’d, No. 21-2028-CV, 2023 WL 1113535 (2d

Cir. Jan. 31, 2023) (summary order); see also Kreisler, 2012 WL 3961304, at *10 (“[T]he ADA

guidelines clarify that minor changes do not trigger sweeping obligations. For example, if a door

handle is replaced, the new handle must be compliant, but the entire door need not be replaced.”).

Although Plaintiff contends that the 2005 alterations required Defendants “to provide an accessible

path of travel” to the fixed merchandise displays on the Store’s walls (see Pl.’s Mem. at 5, 7–9),

she offers no evidence that Defendants made alterations to the fixed merchandise display units or

the merchandise display areas more generally. See Antolini, 2021 WL 3115169, at *8 (concluding

that plaintiff had failed to plausibly demonstrate a nexus between the alleged modifications and

violations). Nor is this issue clearly documented in Plaintiff’s expert report, which more generally

discusses the width of the aisles between “merchandise display racks” (Feb. 2021 Zuehl Report at

ECF 22–29), and provides only one example of a narrow aisle between the merchandise display

racks and the wall (id. at ECF 24). But see Pl.’s Excerpts of Tr. of Jimmy Zuehl Dep., Dkt. 108-2,

at 218:2–5 (“The point is you have fixed or built-in elements that, as my report indicates, are not

on an accessible route because [the moveable] racks are [] blocking access to [them].”).)

is unclear whether this document is properly authenticated or admissible at all. See Lockhart, 2011

WL 2516569, at *10.

Even assuming that the fixed merchandise display areas were altered and that Plaintiff were

able to prove that the paths of travel to those areas are inaccessible, Plaintiff’s claim would fail for

an additional reason. Plaintiff’s “path of travel” claim under 42 U.S.C. § 12183(a)(2) requires her

to propose a remedy that considers costs. See Roberts, 542 F.3d at 372–73, 376 (citing 28 C.F.R.

§ 36.403). Section 12183(a)(2) requires “paths of travel to altered areas that contain a primary

function” be “made readily accessible . . . to the maximum extent feasible,” provided that such

alterations “are not disproportionate to the overall alterations in terms of cost and scope.” Id. at

368–69 (cleaned up). “A plaintiff challenging the accessibility of the paths of travel . . . serving

an altered area containing a primary function bears an initial burden of production that the area in

question is covered by the statute and that the desired access may be achieved with a cost and

scope not disproportionate to the overall alteration.” Id. at 372. “This burden may be met with

cost estimates that are facially plausible, without reference to design details, and are such that the

defendant can assess its feasibility and cost.” Id. Here, Plaintiff’s proposed solution provides no

assessment of costs whatsoever. See infra Discussion § II.B (discussing Plaintiff’s failure to

consider costs in the context of the Barrier Removal Standard).10

Accordingly, Plaintiff’s claims purportedly alleging violations of the ADA under the

Alterations Standard are dismissed.11

10 Many cases analyze claims concerning moveable display racks and other moveable

objects that block circulation paths under 28 C.F.R. § 36.211(a), which requires a place of public

accommodation to “maintain in operable working condition those features of facilities and

equipment that are required to be readily accessible to and usable by persons with disabilities[.]”

28 C.F.R. § 36.211(a); see, e.g., Chapman v. Pier 1 Imports (U.S.) Inc., 779 F.3d 1001, at 1007–

09 (9th Cir. 2015); Curtis v. Home Depot U.S.A., Inc., No. 13-CV-1151 (AWI), 2015 WL 351437,

at *4–6 (E.D. Cal. Jan. 23, 2015). Here, Plaintiff does not reference this particular provision, so

the Court does not consider the extent to which it is applicable to Plaintiff’s claims.

11 The Court also notes that while there is some indication that some of the display racks

on the walls are too high for someone in a wheelchair to reach (Pl.’s 56.1 ¶ 13), this condition is

not documented in Plaintiff’s expert report nor does Plaintiff explicitly discuss this issue in her

B. Plaintiff’s Claims Under the Barrier Removal Standard

Defendants argue that summary judgment is proper because the applicable standard is the

Barrier Removal Standard and Plaintiff has failed to demonstrate that her proposal for barrier

removal is “readily achievable.” (See Defs.’ Mem. at 12–14.)12 The Court agrees and dismisses

Plaintiff’s claims under the Barrier Removal Standard.

Under the Barrier Removal Standard, a defendant must “remove any existing barriers to

accessibility where such removal ‘is readily achievable.’” Roberts, 542 F.3d at 369 (quoting 42

U.S.C. § 12182(b)(2)(A)(iv)). “‘[R]eadily achievable’ means easily accomplishable and able to

be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). “Factors to be

considered when determining if a modification is readily achievable include: (1) the nature and

costs of needed changes; (2) the financial resources of the facility, number of employees, effect on

expenses and resources, and other impact on the facility; (3) the financial resources and size of the

defendant; and (4) the type of operations at the facility and relationship between the facility and

the defendant.” Kreisler, 2012 WL 3961304, at *6 (citing 42 U.S.C. § 12181(9)). The initial

burden is on the plaintiff to “articulate a plausible proposal for barrier removal, ‘the costs of which,

brief. Further, the Amended Complaint does not clearly articulate this issue as it focuses on the

aisle width without mentioning the height of the racks. (Am. Compl. ¶ 26.) The Court therefore

does not view Plaintiff’s claims as being based on height of the wall racks, or to the extent she is

making such a claim, it has been abandoned. See Antolini, 2021 WL 3115169, at *5 (“[P]laintiff’s

argument fails for the simple reason that he fails to allege many, if not all, of these barriers in the

operative [c]omplaint.”); id. (explaining that while a plaintiff may raise claims regarding

subsequently-discovered ADA violations, such claims must be stated “in a proper pleading,” such

as an amended complaint).

12 Defendants also argue that they have satisfied their corresponding burden of

demonstrating that Plaintiff’s proposal is not readily achievable and that they provide

accommodations through alternative methods. The Court need not, and therefore does not, address

these arguments but agrees at least to the latter point. See supra Background § I.C (discussing the

Store’s efforts to provide access through alternative methods).

facially, do not clearly exceed its benefits.’” Roberts, 542 F.3d at 373 (quoting Borkowski v. Valley

Cent. Sch. Dist., 63 F.3d 131, 138 (2d Cir. 1995)). “Neither the estimates nor the proposal are

required to be exact or detailed, for the defendant may counter the plaintiff’s showing by meeting

its own burden of persuasion and establishing that the costs of a plaintiff’s proposal would in fact

exceed the benefits.” Id. “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.’” Kreisler,

2012 WL 3961304, at *7 (quoting Roberts, 542 F.3d at 373). When barrier removal is not readily

achievable, the public accommodation must make its “goods, services, facilities . . . or

accommodations available through alternative methods if such methods are readily achievable.”

42 U.S.C. § 12182(b)(2)(A)(v).

Plaintiff’s sole proposal for removing the barriers in the merchandise display areas is for

Rainbow to “[r]earrange the merchandise display racks so that accessible routes are provided

within the sales floor areas.” (Feb. 2021 Zuehl Report at ECF 22–29.) However, Plaintiff provides

no evidence regarding the feasibility of this proposal or its potential costs. (See generally id.) To

the contrary, Zuehl, Plaintiff’s expert, testified that he was not asked to provide cost estimates for

his recommendations. (Pl.’s 56.1 ¶ 56; Zuehl Dep. Tr. at 115:21–23 (Zuehl testifying that he “was

not asked to provide estimates for this work or these recommendations”).) Nor did Zuehl opine as

to how Rainbow should rearrange the moveable merchandise racks or whether Rainbow would

have to permanently remove any of the racks. (Pl.’s 56.1 ¶ 57; Zuehl Dep. Tr. at 156:7–24.)

Although neither Plaintiff’s “estimates nor [Plaintiff’s] proposal are required to be exact or

detailed,” Roberts, 542 F.3d at 373, Plaintiff “must provide at least some estimate of costs.”

Kreisler, 2012 WL 3961304, at *7–10 (concluding that plaintiff “failed to meet his burden of

establishing that widening [an] aisle in [a] [d]iner [was] readily achievable” where plaintiff failed

to “provide any estimate of the cost of widening the aisle”); see also, e.g., Heard v. Statue Cruises,

LLC, No. 16-CV-1079 (ALC) (BCM), 2022 WL 4611457, at *2 (S.D.N.Y. Sept. 30, 2022)

(denying plaintiff’s ADA claim where plaintiff’s expert did not provide “cost figures regarding

any proposed barrier removal”); Antolini, 2022 WL 4219655, at *6–8 (granting summary

judgment for defendant where, inter alia, plaintiff’s expert report “[did] not provide any analysis

or proposal, let alone any type of evaluation of the costs and benefits”). Here, Plaintiff “has failed

to meet even [her] admittedly light burden” of articulating how the removal of the barriers in the

Store’s merchandise display areas is readily achievable. Antolini v. McCloskey, No. 19-CV-9038

(GBD) (SD), 2022 WL 2763367, at *7 (S.D.N.Y. May 10, 2022), R. & R. adopted, 2022 WL

3448734 (S.D.N.Y. Aug. 17, 2022).

Plaintiff’s contrary arguments are unavailing. The conclusory assertion in Plaintiff’s brief

that there would be “no cost to perform [the] rearrangement” (Pl.’s Mem. at 17), lacks evidentiary

support and is insufficient to show a genuine issue of material fact. See Major League Baseball

Props., Inc. v. Salvino, Inc., 542 F.3d 290, 310 (2d Cir. 2008) (explaining that “[a] party opposing

summary judgment does not show the existence of a genuine issue of fact to be tried merely by

making assertions that are conclusory . . . or based on speculation” (citations omitted) (collecting

cases)). Nor is this the rare case where Plaintiff’s proposed remedy is so “simple” and involves

obviously “de minimis” associated costs, that a lack of specifics can be excused. (See Pl.’s Mem.

at 17–18 (citing Celeste v. E. Meadow Union Free Sch. Dist., 373 F. App’x 85, 88–89 (2d Cir.

2010) (summary order)).) Those cases typically involve simple renovations with inexpensive

upfront costs. See Celeste, 373 F. App’x at 88–89 (concluding that plaintiff satisfied his burden

by suggesting that his school install curb cuts, fix the pavement, and remove cleat cleaners); Range,

2020 WL 3034800, at *6 (finding that plaintiff’s proposal of removing sheetrock from a doorway

was the type of “plausible, simple” remedy that could be accepted “without an estimate on cost”).

Here, by contrast, Rainbow Vice President Hersch testified that there was no room on Rainbow’s

sales floors to fit additional fixtures and merchandise (Tr. of Dep. of Jonathan Hersch, Dkt. 108-3,

at 36:12–37:7), and the ADA’s implementing regulations explicitly contemplate that “[t]he

rearrangement of temporary or moveable structures, such as . . . display racks is not readily

achievable to the extent that it results in a significant loss of selling or serving space,” see 28 C.F.R.

§ 36.304(f). Plaintiff does not even attempt to grapple with these considerations, and thus, the

Court concludes that Plaintiff would be unable to meet her burden of showing a “readily

achievable” proposal for barrier removal at trial. See Antolini, 2023 WL 1113535, at *2 (affirming

district court’s decision granting summary judgment for defendant where the record showed

plaintiff “could not meet his burden to demonstrate a ‘readily achievable’ removal at trial”).13

Accordingly, Plaintiff’s claims under the Barrier Removal Standard must be dismissed.

III. Plaintiff’s Claims Under New York State and City Law

Finally, the Court declines to exercise supplemental jurisdiction over Plaintiff’s claims

under the New York State Executive Law, the New York City Administrative Code, and the New

York State Civil Rights Law, to the extent that such claims remain at issue. See 28 U.S.C. § 1367.

“Whether to exercise supplemental jurisdiction ‘is within the sound discretion of the district

13 Plaintiff also argues that she “cannot offer evidence of the financial impact to []

Defendants’ business because [] Defendants did not provide Plaintiff with any documents or

witness testimony during discovery from which Plaintiff could assess such an impact.” (Pl.’s

Mem. at 18.) This argument is completely unavailing. There are other costs associated with

whether a proposal is readily achievable “apart from Defendants’ ability to pay.” See Antolini,

2021 WL 3115169, at *4. For example, plaintiffs in other cases involving moveable merchandise

display racks have put forth evidence concerning practices at other store locations and store

policies to meet their initial burden of establishing a readily achievable proposal. E.g., Ryan v.

Kohl’s Corp., No. 17-CV-5854, 2018 WL 4616355, at *4–5 (N.D. Ill. Sept. 26, 2018); Thomas,

2018 WL 704691, at *4–5.

court.’” Antolini, 2022 WL 4219655, at *8–9 (quoting Lundy v. Cath. Health Sys. of Long Island

Inc., 711 F.3d 106, 117 (2d Cir. 2013)). “[I]n the usual case in which all federal-law claims are

eliminated before trial, the balance of factors . . . will point toward declining to exercise jurisdiction

over the remaining state-law claims.” Id. at *8 (quoting Kolari v. New York-Presbyterian Hosp.,

455 F.3d 118, 122 (2d Cir. 2006)). Because the Court dismisses Plaintiff’s claims under the ADA,

“the balance of factors counsel in favor of declining supplemental jurisdiction.” Id. (“Allowing

Plaintiff to pursue its state law claims in state court would ‘avoid needless decisions of state law

by this Court, which also promotes the interests of comity and justice.’” (quoting Moran v. Tryax

Realty Mgmt., Inc., No. 15-CV-8570 (RJS), 2016 WL 3023326, at *4 (S.D.N.Y. May 23, 2016))).

Accordingly, Plaintiff’s state law claims are dismissed without prejudice to their being

refiled in state court.

PLAINTIFF’S MOTION TO STRIKE

Plaintiff moves to strike Defendants’ Reply Rule 56.1 Statement and “the 145 lines of

footnotes in Defendants’ [reply brief].” (See Pl.’s Strike Mot. (citing Dkts. 105–106).) The Court

denies this motion in its entirety.

“Whether to grant or deny a motion to strike is vested in the trial court’s sound discretion.”

See Peters v. Molloy Coll. of Rockville Ctr., No. 07-CV-2553 (DRH), 2010 WL 3170528, at *1

(E.D.N.Y. Aug. 10, 2010) (citation omitted); Gurrieri v. Cnty. of Nassau, No. 16-CV-6983 (ADS)

(SIL), 2018 WL 6590564, at *7 (E.D.N.Y. Dec. 14, 2018) (“Ultimately, it is within the [c]ourt’s

discretion whether to strike portions of reply papers.”); see also Aurora Loan Servs., Inc. v. Posner,

Posner & Assocs., P.C., 513 F. Supp. 2d 18, 19 (S.D.N.Y. 2007).

Here, Plaintiff argues that Defendants’ Reply Rule 56.1 Statement “must be stricken”

because “Local Civil Rule 56.1 does not provide for a ‘reply’ in further support of a Rule 56.1

statement of undisputed facts.” (Pl.’s Strike Mot. at 1 (purportedly quoting Sattar v. U.S. Dep’t of

Homeland Sec., 669 F. App’x 1, 3 (2d Cir. 2016) (summary order)).) First, as Defendants point

out, Sattar does not discuss replies to 56.1 statements at all, and Plaintiff clearly cites to the wrong

case for this quote and proposition. (See Defs.’ Opp’n to Pl.’s Mot. to Strike, Dkt. 112); see

generally Sattar, 669 F. App’x 1. Second, although Plaintiff is correct that “Local Civil Rule 56.1

does not provide for a ‘reply,’” it is also true that “the Rule does not prohibit such replies.” See

Cap. Recs., LLC v. Vimeo, LLC, No. 09-CV-10101 (RA), 2018 WL 4659475, at *1 (S.D.N.Y.

Sept. 7, 2018).14 Aside from generally arguing that such replies are “improper,” Plaintiff does not

articulate any specific prejudice resulting from Defendants’ Reply Rule 56.1 Statement, nor does

she request to file a sur-reply. (See generally Pl.’s Strike Mot.); cf. Pape v. Dircksen & Talleyrand

Inc., No. 16-CV-5377 (MKB) (SJB), 2019 WL 1435882, at *2 (E.D.N.Y. Feb. 1, 2019) (noting

that, while “[t]here is nothing wrong with [submitting a reply 56.1 statement],” it was improper

for the defendants to include evidence that was not cited to in their original statement), R. & R.

adopted, 2019 WL 1441125 (E.D.N.Y. Mar. 31, 2019).15

Similarly, while Plaintiff contends that the footnotes in Defendants’ reply brief are

improper because they contain substantive legal arguments and are “a transparent effort to

circumvent page limitations” (see Pl.’s Strike Mot. at 2–3), she again fails to argue or demonstrate

that she was prejudiced by the footnotes in any way. Ultimately, the Court’s rules do not impose

14 Notably, in Capital Records, the court denied the defendants’ motion to strike the

plaintiff’s reply 56.1 statement. Id.

15 Plaintiff does not argue that Defendants’ Reply Rule 56.1 Statement contained evidence

not cited to in their original 56.1 statement. However, the Court notes that both parties’ 56.1

statements include impermissible legal arguments, which the Court has disregarded. (See

generally Dkts. 99, 106, 110); Pape, 2019 WL 1435882, at *2 (“Arguments are impermissible in

any Rule 56.1 Statement and are to be disregarded.”).

a limit on the number of footnotes a party may use, but even so, “[t]he Court enjoys broad

discretion to determine whether to overlook a party’s failure to comply with local court rules.”

Bank v. Spark Energy, LLC, No. 19-CV-4478 (PKC) (LB), 2020 WL 6873436, at *6 (E.D.N.Y.

Nov. 23, 2020) (internal quotation marks and citations omitted), aff’d, 860 F. App’x 205 (2d Cir.

2021) (summary order). Moreover, the disposition of Defendants’ summary judgment motion

would not have been different had the Court declined to consider the objected-to materials; in other

words, Defendants’ inclusion of those footnotes had no impact on the Court’s resolution of that

motion. See Madorskaya v. Frontline Asset Strategies, LLC, No. 19-CV-895 (PKC) (RER), 2021

WL 3884177, at *18 (E.D.N.Y. Aug. 31, 2021). Accordingly, the Court finds it unnecessary to

strike any portion of Defendants’ reply papers, as Plaintiff has not suffered any prejudice. See id.;

see also Bank, 2020 WL 6873436, at *6 (declining to strike portions of reply where party moving

to strike had not suffered prejudice “from the unauthorized and overly long reply” (citing Nat’l

Grid Corp. Servs. v. Brand Energy Servs., LLC, No. 13-CV-1275 (DRH) (ARL), 2017 WL

1194499, at *10 n.7 (E.D.N.Y. Mar. 30, 2017) (denying defendant leave to file a motion to strike

pages of plaintiff’s reply that exceeded the court’s local rules, based on the lack of prejudice to

defendant))).

Based on the foregoing, Plaintiff’s motion to strike is denied in its entirety.

CONCLUSION

For all the foregoing reasons, Defendants’ motion for summary judgment is granted.

Additionally, Plaintiff’s motion to strike is denied. The Clerk of Court is respectfully directed to

enter judgment and close this case.

SO ORDERED.

/s/ Pamela K. Chen

Pamela K. Chen

United States District Judge

Dated: March 30, 2024

Brooklyn, New York