Altaune Brown v. 3700 Deli & Grocery Inc.

USDC SDNY

UNITED STATES DISTRICT COURT DOCUMENT

SOUTHERN DISTRICT OF NEW YORK ELECTRONICALLY FILED

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DATE FILED: 1/27/2021

ALTAUNE BROWN, :

Plaintiff, : 19-cv-07160 (ALC)

-against- :

3700 DELI & GROCERY INC., ET AL., : OPINION AND ORDER

Defendants. :

ANDREW L. CARTER, JR., United States District Judge:

Plaintiff Altaune Brown sued Defendants 3700 Deli & Grocery Inc., Magenta Realty LLC,

and 2 Deli Grocery Inc. under the Americans with Disabilities Act ("ADA"), the New York State

Human Rights Law ("NYSHRL"), and the New York City Human Rights Law ("NYCHRL").

Despite having been served, Defendants failed to answer or otherwise respond to the Complaint.

Plaintiff now moves for default judgment. For the reasons that follow, the motion is granted in

part.

Background

Plaintiff alleges that on or about July 11, 2019 he attempted to enter and patronize a store

at 3700 White Plains Rd, Bronx, New York 10467 (‘the Premises”). However, Plaintiff alleges

that he, a paraplegic who uses a wheelchair, was denied access to the Premises because of a step

by the front door. Defendants 3700 Deli & Grocery Inc. and 2 Deli Grocery Inc. are the lessees

and/or operators of the premises. Defendant Magenta Realty LLC is the owner, lessor and/or

operator and managing agent of the real property where the Premises is located. All Defendants

are alleged to maintain and control the Premises.

Plaintiff asks the Court to declare that the Premises are in violation of the ADA, NYSHRL

and NYCHRL; enter an order requiring the Defendants to alter the Premises to make them

accessible and usable to individuals with disabilities to the full extent of the ADA, NYSHRL,

and NYCHRL; and enter an order directing Defendants to pay $1000 in damages and

reasonable attorney fees and costs. ECF No. 27.

All Defendants were served via the Secretary of State. See ECF Nos. 5, 6, 16. When the

Defendants failed to appear despite being served, Plaintiff requested Clerk’s Certificates of

Default, ECF Nos. 21-22, which were issued, ECF No. 23. Thereafter, Plaintiff moved for default

judgment. ECF Nos. 24-28. The Court issued an Order to Show Cause why default judgment

should not be entered. ECF No. 341. Defendants did not reply.

Standard

A party against whom a judgment for affirmative relief is sought is in default when it has

failed to plead or otherwise defend the suit. See Fed. R. Civ. P. 55(a). A default judgment entered

on well-pleaded allegations in a complaint establishes a defendant's liability. Belizaire v. RAV

Investigative and Sec. Servs. Ltd., 61 F. Supp. 3d 336, 344 (S.D.N.Y. 2014). In evaluating a motion

for default judgment, the court must accept as true all of the factual allegations of the non-

defaulting party and draw all reasonable inferences in its favor. Id. Nonetheless, because a party

in default does not admit conclusions of law, a district court must "determine whether the

[plaintiff's] allegations establish [the defendant's] liability as a matter of law." Id. (quoting Finkel

v.Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009)).

1 The Court issued and vacated a prior Order to Show Cause why default judgment should not be entered because

Plaintiff initially failed to include a memorandum in support of their motion for default judgment. See ECF Nos. 29,

31.

To secure a default judgment for damages, the plaintiff must produce evidence sufficient

to establish damages with "reasonable certainty." Cement & Concrete Workers Dist. Council

Welfare Fund v. Metro Found. Contractors, Inc., 699 F.3d 230, 235 (2d Cir. 2012) (quoting Credit

Lyonnais Sec. (USA), Inc. v. Alcantara, 183 F.3d 151, 155 (2d Cir. 1999)) (internal quotation

marks omitted). District courts have "much discretion" to determine whether to hold an inquest on

damages; an inquest is not mandatory, and a plaintiff's damages may be established by "detailed

affidavits and documentary evidence." Id. at 234 (quoting Tamarin v. Adam Caterers, Inc., 13 F.3d

51, 54 (2d Cir. 1993)).

Discussion

A. Liability

Title III of the ADA 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 by any person who owns,

leases (or leases to), or operates a place of public accommodation." 42 U.S.C. § 12182(a). To state

a claim, a plaintiff must allege: "(1) that 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 v. Royal

Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008). The ADA defines a public accommodation to include

"a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental

establishment." 42 U.S.C. § 12181(7)(E). “With respect to the last element, discrimination includes

‘a failure to remove architectural barriers . . . in existing facilities . . . where such removal is readily

achievable.’" Pierre v. Nine One Two Corp., No. 19-CV-3326 (NGG) (SMG), 2020 U.S. Dist.

LEXIS 95658, at *4 (E.D.N.Y. May 29, 2020) (citing 42 U.S.C. § 12182(b)(2)(A)(iv)).

Plaintiff has properly alleged that he, a paraplegic who uses a wheelchair, is disabled under

the ADA. Plaintiff has also properly alleged that the Premises is a place of public accommodation,

and that the front step constitutes a barrier to entry. See 28 C.F.R. § 36.304(c)(1) ("[A] public

accommodation should take measures to provide access to a place of public accommodation from

public sidewalks, parking, or public transportation. These measures include, for example,

installing an entrance ramp . . . .").

However, the Complaint's allegations as to the barriers within the store lack sufficient detail

to merit default judgment. Although Plaintiff did not personally encounter any barriers within the

store, he has “standing to seek removal of all barriers . . . related to his disability that he would

likely encounter were he able to access the” Premises. Kreisler v. Second Ave. Diner Corp., 731

F.3d 184, 188 (2d Cir. 2013). However, the allegations in the Complaint begin and end with the

step obstructing the entrance to the Premises. See Compl. ¶¶ 11-13. There are no allegations

detailing how the in-store displays fail to accommodate Plaintiff. The Court therefore concludes

that Plaintiff does not sufficiently allege violations within the store to support entry of default

judgment. See, e.g., Phillips v. Emilio's Pizza, No. 17-CV-6112 (JPO), 2018 U.S. Dist. LEXIS

80922, 2018 WL 2192189, at *4 (S.D.N.Y. May 14, 2018).

Accordingly, default judgment is granted as to the ADA claims relating to the step at the

front entrance of the Premises, but denied as to the other alleged barriers within the store. “The

result is the same for Plaintiff's claims under the NYSHRL and NYCHRL.” Phillips, 2018 U.S.

Dist. LEXIS 80922, at *4; see also Loeffler v. Staten Island Univ. Hosp., 582 F.3d 268, 278 (2d

Cir. 2009) (“viewing similarly worded provisions of federal and state civil rights laws as a floor

below which the City's Human Rights law cannot fall").

B. Declaratory and Injunctive Relief

For the reasons above, the Court grants Plaintiff's request for declaratory relief that

Defendants violated and continue to violate the ADA because the step at the front entrance of the

Premises constitutes an illegal barrier. The Court denies Plaintiff's request for declaratory relief as

to the in-store barriers. Injunctive relief is available under the ADA in order to rectify violations

of access requirements. 42 U.S.C. § 12188(a)(2). The Court likewise grants Plaintiff's request for

injunctive relief as to the step at the front entrance of the Premises, but denies it as to the in-store

barriers.

C. Damages

The ADA does not provide for damages, but the NYSHRL and NYCHRL do. Phillips,

2018 U.S. Dist. LEXIS 80922, at *4-5. Courts in this district have awarded $1000 as compensatory

damages for violations similar to this one, where no particular damages have been established. See

id.; Thorne v. Formula 1 Motorsports, Inc., No. 19-CV-1077, 2019 U.S. Dist. LEXIS 220080,

2019 WL 6916098, at *4 (S.D.N.Y. Dec. 19, 2019). Accordingly, this Court awards Plaintiff

$1,000 in damages.

D. Fees and Costs

Although the NYSHRL does not provide for an award of attorneys’ fees in cases such as

this one, see Panerese v. Shiekh Shoes, LLC, No. 19-CV-4061 (JMA) (AYS), 2020 U.S. Dist.

LEXIS 224369, at *7-8 (E.D.N.Y. Dec. 1, 2020), both the ADA and the NYCHRL do, see 42

U.S.C. § 12205; N.Y.C. Admin. Code § 8-502(g). Plaintiff must file a motion for attorneys’ fees

by February 26, 2021.

Conclusion

For the reasons above, the Court hereby GRANTS Plaintiff’s motion for default judgment

in part. Defendants 3700 Deli & Grocery Inc., Magenta Realty LLC, and 2 Deli Grocery Inc. are

ORDERED to take necessary steps to provide an accessible entrance and install a ramp with

appropriate slope and signage, and/or otherwise provide an accessible and properly designated

entrance at the Premises, 3700 White Plains Rd, Bronx, New York 10467; provide signage

addressing people with disabilities telling them that accessible services are provided; and provide

a safe and accessible emergency exit. Defendants are further ORDERED to pay Plaintiff $1000 in

compensatory damages. It is further ordered that (1) Defendants shall submit to Plaintiff ’s counsel

a report detailing architectural plans to cure the accessibility issue with the entrance of the Premises

within 60 days, (2) Plaintiff shall have 20 days from receipt of such report to consent or seek

further relief from this Court, and (3) Defendant shall make the designated modification within 60

days of Plaintiff ’s consent or a ruling by this Court on any request for further relief. The Clerk of

Court is respectfully directed to enter default judgment consistent with this paragraph and close

this case.

SO ORDERED. [Artie y Ce

Dated: January 27, 2021 o>

New York, New York ANDREW L. CARTER, JR.

United States District Judge