Gene Mattera; Access 4 All, Inc. v. Saratoga Hotel Associates; Driftwood Capital, LLC

Opinion

UNITED STATES DISTRICT COURT NORTHERN DISTRICT OF NEW YORK

GENE MATTERA; ACCESS 4 ALL, INC.,

Plaintiffs,

v. 1:25-cv-01419 (AMN/PJE)

SARATOGA HOTEL ASSOCIATES; DRIFTWOOD CAPITAL, LLC,

Defendants.

APPEARANCES: OF COUNSEL:

THE MINEO SALCEDO LAW FIRM, P.A. ALEXANDER J. SANTANA, ESQ. 5600 Davie Road JOHN A. SALCEDO, ESQ. Davie, Florida 33314

LAW OFFICE OF JOSEPH M. HORN ESQ. LLC JOSEPH M. HORN, ESQ. 500 Lake Street – Suite D Ramsey, New Jersey, 07446 Attorneys for Plaintiff

JACKSON LEWIS, P.C. JASON MATTAR, ESQ. 44 South Broadway, 14th Floor JOSEPH J. DIPALMA, ESQ. White Plains, New York 10601 Attorneys for Defendants

Hon. Anne M. Nardacci, United States District Judge: MEMORANDUM-DECISION AND ORDER I. INTRODUCTION On October 9, 2025, plaintiffs Gene Mattera (“Mattera”) and Access 4 All, Inc. (“Access 4 All”) (together, “Plaintiffs”) commenced this action against defendants Saratoga Hotel Associates (“SHA”) and Driftwood Capital, LLC (“Driftwood”) (together, “Defendants”). Dkt. No. 1. After Defendants moved to dismiss the initial complaint on November 26, 2025, Dkt. No. 11, Plaintiffs filed an amended complaint as of right on December 17, 2025, Dkt. No. 13 (“Amended Complaint”). The Amended Complaint alleges statutory and regulatory violations of the Americans with Disabilities Act (“ADA”), specifically 42 U.S.C. § 12182 (“Title III”), for failure to provide accessible facilities in a place of public accommodation, and 28 C.F.R. Section 36.302(e)(1) (“Section 36.302(e)”) for failure to comply with website accessibility requirements. Presently before the Court is Defendants’ motion to dismiss the Amended Complaint for

lack of subject matter jurisdiction and failure to state a claim. Dkt. No. 15 (“Motion”). Plaintiffs opposed the Motion and, in the alternative, requested leave to amend, Dkt. No. 17, and Defendants replied, Dkt. No. 20. On June 24, 2026, Plaintiffs also moved to amend the Amended Complaint as to the address of the commercial property at issue. Dkt. No. 22. For the reasons that follow, the Court grants the Motion but also grants Plaintiffs leave to amend. II. BACKGROUND A. The Parties Plaintiff Mattera is an individual residing in the state of Florida. Dkt. No. 13 at ¶ 4. Plaintiff Mattera alleges that he is an individual with disabilities as defined by the ADA. Id. at ¶

12. Plaintiff Mattera uses supplemental oxygen for 24 hours a day and “requires a scooter to ambulate further than a few feet due to late stage emphysema.” Id. Plaintiff Mattera “also requires a shower with a seat and grab bars.” Id. Plaintiff Access 4 All is a Florida non-for-profit corporation with its principal place of business in Florida. Id. at ¶ 5. Plaintiff Access 4 All’s purpose is to “represent the interest of its members by assuring places of public accommodation are accessible to and usable by the disabled and that its members are not discriminated against because of their disabilities.” Id. Defendant SHA is a partnership organized under New Jersey law with its principal place of business in New Jersey and authorized to do business in New York. Id. at 6. Defendant Driftwood is a Florida limited liability company with its principal place of business in Florida and authorized to do business in New York. Id. at 8. At all relevant times, Defendants “owned, leased, leased to, and/or operated” a commercial property located at 534 Broadway[,] Saratoga Springs, [New York] 12866 and held out to the public as the Saratoga Hilton (the “Commercial Property”). Id. at 7, 9.

B. Plaintiff Mattera’s Factual Allegations Plaintiffs allege that Plaintiff Mattera stayed at the Commercial Property from June 4-5, 2025. Id. at ¶ 14. During that stay, Plaintiffs allege that Plaintiff Mattera encountered architectural barriers constituting violations of the 2010 ADA Standards for Accessible Design that “have each denied or diminished Plaintiffs’ ability to visit the Commercial Property and endangered their safety.” Id. at ¶¶ 14-15. In the Amended Complaint, Plaintiffs list twenty-nine alleged barriers, including, inter alia: inaccessible parking spaces, an inaccessible entrance; inaccessible counters and dining surfaces; improperly placed fitness center towels; inaccessible water closets in common area restrooms; improperly placed grab bars, mirrors, and flush controls in common area

restrooms; lack of required hardware on bathroom stalls; lack of required signage by inaccessible restrooms; lack of a grab bar in the guestroom; improperly placed storage shelves, hooks, and thermostat controls in the guestroom; improperly placed mirror, flush controls, and toilet paper dispenser in guestroom restroom; inaccessible roll-in shower; lack of proper insulation on hot water pipes in the guestroom; and an inaccessible desk in the guestroom. Id. at ¶ 20(A)-(D). Plaintiffs allege that Plaintiff Mattera “visits Saratoga and the surrounding areas frequently” to attend races and concerts. Id. at ¶ 13. They allege that he “was in the Saratoga area during the summer months of 2025 for 14 days,” had planned to return in December 2025 pending his health, and had reservations to return in June 2026 for the Belmont Stakes Racing Festival (“Belmont Stakes”). Id. Plaintiffs also state that Plaintiff Mattera has family buried in the Bronx and visits New York regularly to visit friends and for Yankee games. Id. Plaintiffs further allege that prior to commencing this suit, they visited the website operated and maintained by Defendants for the Commercial Property (“Website”), which hosts an online reservation system (“ORS”). Id. at ¶ 31-32. Plaintiffs allege that they visited the Website “for the

purpose of reviewing and assessing the accessible features at the Commercial Property and ascertain whether they meet the requirements of 28 C.F.R. Section 36.302(2) and their accessibility needs.” Id. at ¶ 32. While the Website indicated that accessible rooms were available, Plaintiffs allege that the Website failed to provide sufficient information regarding accessible features in the rooms and the hotel. Id. at ¶ 33. Plaintiffs further allege that this lack of information consequently led to Plaintiff Mattera being unable to use the room he reserved. Id.1 Plaintiffs allege that they intend to revisit the Website “in the near future” to test it again for compliance and to use it to reserve a guestroom. Id. at ¶ 34. C. Plaintiffs’ Claims

Plaintiffs seek declaratory and injunctive relief for (1) violations of Title III of the ADA arising from the alleged architectural barriers at the commercial property and (2) violations of 28 C.F.R. Section 36.302(e) arising from the alleged deficiencies on the Website. Id. at ¶ 42 (a)-(c). Plaintiffs also seek an award of attorneys’ fees, costs, and litigation expenses pursuant to 42 U.S.C. § 12205. Id. at ¶ 42(d).

1 This portion of the Amended Complaint does not distinguish between Plaintiff Mattera and Plaintiff Access 4 All, but the Court notes that it is impossible for Plaintiff Access 4 All to have attempted to use the room as a guest in the manner alleged. See id. It is therefore also unclear to the Court whether the Amended Complaint alleges that only Plaintiff Mattera visited the Website and intends to revisit it or if Plaintiff Access 4 All is included as well. See id. at ¶¶ 32-35. III. STANDARD OF REVIEW A. Rule 12(b)(1) A motion to dismiss for lack of subject matter jurisdiction pursuant to Rule 12(b)(1) is properly granted “when the court lacks statutory or constitutional authority to adjudicate it.” Cayuga Indian Nation of New York v. Vill. of Union Springs, 293 F. Supp. 2d 183, 187 (N.D.N.Y.

2003) (citing Luckett v. Bure, 290 F.3d 493, 496 (2d Cir. 2002)). The Second Circuit has recognized two types of Rule 12(b)(1) motions: facial and fact- based. Abeth Hashimi v. Court Diner, Inc., No. 23-CV-5811, 2025 WL 4905840, at *2 (E.D.N.Y. Sept. 30, 2025) (citing Carter v. HealthPort Techs., LLC, 822 F.3d 47, 56 (2d Cir. 2016)). A defendant making a facial 12(b)(1) motion relies only on the complaint’s allegations and attached exhibits, and the plaintiff has no further evidentiary burden. Id. (citing Carter, 822 F.3d at 56). A court considering a facial 12(b)(1) motion therefore accepts as true all material factual allegations and draws all reasonable inferences on behalf of the plaintiff to determine whether the complaint “alleges facts that ‘affirmatively and plausibly suggest that [the plaintiff] has standing to sue.’” Id.

(citing Carter, 822 F.3d at 56-57); see also Selevan v. New York Thruway Authority, 584 F.3d 82, 88 (2d Cir. 2009)). A defendant makes a fact-based Rule 12(b)(1) motion by offering extrinsic evidence to challenge a plaintiff’s allegations of standing. Hashimi, 2025 WL 4905840, at *3. If no factual dispute arises from the extrinsic evidence, then the plaintiff is entitled to rely on the allegations in the complaint. Id. But if that evidence does create a factual dispute, the plaintiff may present evidence of his own controverting that presented by the defendant. See id. In the event of such a factual dispute, the court “will need to make findings of fact in aid of its decision as to standing.” Id. (quoting Carter, 822 F.3d at 57). “[A] plaintiff must demonstrate standing for each claim and form of relief sought.” Mahon v. Ticor Title Ins. Co., 683 F.3d 59, 62 (2d Cir. 2012). Where a plaintiff lacks Article III standing, “a court has no subject matter jurisdiction to hear [her] claim.” Id. “In resolving the question of jurisdiction, the district court can refer to evidence outside the pleadings and the plaintiff asserting subject matter jurisdiction has the burden of proving by a preponderance of the evidence that it

exists.” Luckett, 290 F.3d at 496-97. Because a Rule 12(b)1 motion addresses the court’s authority to hear the merits of a claim, a court presented with a motion to dismiss pursuant to both Rules 12(b)(1) and 12(b)(6) must consider the 12(b)(1) motion first. Baldessarre v. Monroe-Woodbury Cent. Sch. Dist., 820 F. Supp. 2d 490, 499 (S.D.N.Y. 2011), aff’d, 496 F. App’x 131 (2d Cir. 2012). B. Rule 12(b)(6) A motion to dismiss for failure to state a claim pursuant to Rule 12(b)(6) tests the legal sufficiency of a party’s claim for relief. See Patane v. Clark, 508 F.3d 106, 111-12 (2d Cir. 2007). In considering legal sufficiency, a court must accept as true all well-pled facts in the complaint

and draw all reasonable inferences in the pleader’s favor. See ATSI Commc’ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). This presumption, however, does not extend to legal conclusions. See Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009). To survive a motion to dismiss, a party need only plead “a short and plain statement of the claim,” Fed. R. Civ. P. 8(a)(2), with sufficient factual “heft to sho[w] that the pleader is entitled to relief.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 557 (2007) (alteration in original) (quotation omitted). “[W]hen the allegations in a complaint, however true, could not raise a claim of entitlement to relief,” Id. at 558, or where a plaintiff has “not nudged [his or her] claims across the line from conceivable to plausible, [the] complaint must be dismissed.” Id. at 570. IV. DISCUSSION A. Standing Defendant’s principal argument is that Plaintiffs have failed to adequately allege standing as to either claim. See Dkt. No. 15-2 at 7-18.2 Article III of the Constitution limits the jurisdiction of federal courts to the resolution of

“cases” and “controversies.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021). “Cases” and “controversies” require that a plaintiff have a “personal stake in the case,” i.e., standing to sue. Id. To establish such a stake under Article III, “a plaintiff must show (i) that he suffered an injury in fact that is concrete, particularized, and actual or imminent; (ii) that the injury was likely caused by the defendant; and (iii) that the injury would likely be redressed by judicial relief.” Id. (citing Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61 (1992)). “A plaintiff pursuing injunctive relief may not rely solely on past injury, but also must establish that ‘[he] is likely to harmed again in the future in a similar way.’” Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 74 (2d Cir. 2022) (quoting Nicosia v. Amazon.com, Inc., 834 F.3d 220, 239 (2d Cir. 2016)). Such allegations of

future injury “must be certainly impending to constitute injury in fact.” Am. Civ. Liberties Union v. Clapper, 785 F.3d 787, 800 (2d Cir. 2015) (emphasis in original). Allegations that merely posit possible future injuries are insufficient. Id. Specifically, when a plaintiff seeks injunctive relief under the ADA concerning a barrier to access, the Second Circuit has held that the plaintiff alleges an injury in fact when: “(1) the plaintiff allege[s] past injury under the ADA; (2) it [is] reasonable to infer that the discriminatory treatment [will] continue; and (3) it [is] reasonable to infer, based on the past frequency of

2 Citations to court documents utilize the pagination generated by CM/ECF, the Court’s electronic filing system. plaintiff’s visits and the proximity of defendants’ [businesses] to plaintiff’s home, that plaintiff intend[s] to return to the subject location.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013). “Courts both in this Circuit and elsewhere have held that, as a bare minimum, a plaintiff can establish a direct injury sufficient to support standing only if [he] personally encounters the barrier to access that caused injury.” Feltzin v. Triangle Props. #1, LLC, No.

14CV5131, 2016 WL 11599264, at *4 (E.D.N.Y. Dec. 15, 2016) (internal quotation and citation omitted). The Second Circuit has also found it reasonable to infer a plaintiff’s intent to return when it “depends only upon his own volition” and is supported by “professional and family reasons.” Chavez v. 25 Jay Street LLC, No. 20-CV-845, 2021 WL 982865, at *4 (E.D.N.Y. Feb. 24, 2021), report and recommendation adopted, No. 20-CV-845, 2021 WL 980257 (E.D.N.Y. Mar. 16, 2021) (quoting Harty v. Simon Prop. Grp., L.P., 428 Fed. App’x 69, 72 (2d Cir. 2011)). B. Title III Claim Defendants contend that Plaintiff Mattera lacks standing because he has not adequately alleged a past injury nor a plausible intention to return to the Commercial Property. Dkt. No. 15-

2 at 9-17. Defendants make a facial and fact-based challenge to standing on the issue of past injury, and a fact-based challenge to standing on the issue of intent to return. See id. at 9. In response, Plaintiffs claim that the facts alleged in the Amended Complaint sufficiently show both past injury and an intent to return. Dkt. No. 17 at 6-8, 13-14. Plaintiffs also claim that Defendants’ extrinsic evidence in support of their fact-based challenges amount to nothing more than an attempt to discredit Plaintiff Mattera based on alleged “serial litigant” status. Id. at 9-11. The Court agrees with Defendants. As to the issue of direct injury to Plaintiff Mattera, it is not clear which, if any, of the twenty-nine alleged violations of the ADA that he personally encountered. The Amended Complaint lays out each of the alleged ADA Title III violations without alleging further facts tethering any of those alleged violations to an injury to Plaintiff Mattera. See Dkt. No. 13 at ¶ 20. Instead, for each alleged violation, the Amended Complaint formulaically asserts that “Plaintiffs”—plural—are “prevented” from accessing, maneuvering, or using some room or feature on the Commercial Property. See id. This is insufficient to allege that Plaintiff Mattera encountered these features himself and was unable to use them. Thus, the

allegations do not address whether and how the alleged violations created injuries suffered by Plaintiff Mattera. See Feltzin, 2016 WL 11599264, at *4; see also TransUnion, 594 U.S. at 427 (“[U]nder Article III, an injury in law is not an injury in fact. Only those plaintiffs who have been concretely harmed by a defendant’s statutory violation may sue that private defendant over that violation in federal court.”). Plaintiffs argue that regardless of whether the Amended Complaint adequately pleads that Plaintiff Mattera suffered a direct injury, it adequately pleads that the alleged violations deterred Plaintiff Mattera from staying at the Commercial Property “as often as he would have when he visits the Saratoga area.” Dkt. No. 17 at 8. Indeed, an injury in fact under the ADA can take two

forms: “direct injury from personally encountering disability-based discrimination at Defendant’s property” or “deterrence from using Defendant’s property because it is not ADA compliant.” Access 4 All, Inc. v. Trump Int’l Hotel & Tower Condo., 458 F. Supp. 2d 160, 173 (S.D.N.Y. 2006). Still, while the nature of architectural ADA violations is such that a plaintiff “need not engage in the futile gesture of visiting a building containing known barriers that the owner has no intention of remedying, they must at least prove actual knowledge of the barriers and show that they would visit the building in the imminent future but for those barriers.” Small v. Gen. Nutrition Companies, Inc., 388 F. Supp. 2d 83 (E.D.N.Y. 2005) (internal citation omitted); see also Kreisler, 731 F.3d at 188 (holding that even though the plaintiff never attempted to enter the property in question, “the fact that the wheelchair-inaccessible entrance deterred Kreisler from accessing the [property] established a concrete and particularized injury”). Here, the Amended Complaint alleges that Plaintiff Mattera did in fact stay at the Commercial Property. Dkt. No. 13 at ¶ 14. But Plaintiffs’ opposition also argues that Plaintiff Mattera “would have stayed at the Hotel but was deterred from doing so because of the continuing

presence of accessibility barriers at the entrance and within the Hotel.” Dkt. No. 17 at 8. As an initial matter, Plaintiffs’ arguments in opposition call into question whether Plaintiff Mattera is alleging that he did in fact stay at the Commercial Property. But even if the Court infers that the Plaintiffs allege in the Amended Complaint that Plaintiff Mattera did stay at the Commercial Property but was deterred from returning by the accessibility barriers, thereby alleging a past injury, the Court also finds that Plaintiffs fail to adequately allege facts from which the Court could reasonably infer that Plaintiff Mattera possessed the requisite intent to return. “The Second Circuit has held that an ‘intent to return based on past visits and proximity’ cannot be met by pleading the ‘magic words’ of a general intent to return.” Hashimi, 2025 WL 4905840, at *4 (citing Calcano,

36 F.4th at 75). “When examining a plaintiff’s intent to return, courts in this circuit consider the ‘totality of all relevant facts,’ such as the definiteness of the plaintiff’s plans to return, frequency of the plaintiff’s travel near the defendant’s business, proximity of the defendant’s business to plaintiff’s residence, and plaintiff’s past patronage of defendant’s business, to determine whether a plausible, real and immediate threat of future injury has been alleged.” Id. (citing Calcano, 36 F.4th at 75). In support of its claim that Plaintiff Mattera, at the time of the filing of this action, later intended to return to the subject location, the Amended Complaint asserts that Plaintiff has a history of visiting Saratoga Springs “several times per year” over the past decade to attend races and concerts, including a fourteen-day visit in the summer of 2025. Dkt. No. 13 at ¶ 13. The Amended Complaint also alleges that Plaintiff Mattera planned to return in December 2025 pending his health and had “reservations to return in June of next year for the Belmont Stakes Racing Festival as he owns thoroughbreds with his oldest son.” Id.3 The Court finds that Plaintiff Mattera’s stated intentions regarding future visits are vague

and indefinite, as the Amended Complaint never specifies whether Plaintiff intended to stay at the Commercial Property in December 2025 and fails to indicate whether his June 2026 reservation was for a stay at the Commercial Property. See id.4 The Amended Complaint does assert that Plaintiff Mattera has visited Saratoga Springs with some level of frequency in the past, but that contention alone fails to allow for any further inference regarding the certainty of Plaintiff Mattera’s future travel plans. See, e.g., Harty v. Greenwich Hospitality Group, LLC, 536 Fed. App’x 154, 155 (2d Cir. 2013) (finding that plaintiff failed to demonstrate basis for inferring intent to return to Stamford, Connecticut where plaintiff claimed to frequently visit family in “nearby” Nyack, New York and only one previous visit to Stamford).

Moreover, Plaintiffs’ complaints filed in related cases underscore the indefinite nature of the allegations concerning Plaintiff Mattera’s intent to return. Defendants submit Plaintiffs’ complaints from five other cases filed in 2025 that also involve hotel properties in New York State to which Plaintiffs allege that Plaintiff Mattera has an intent to return. See Dkt. No. 15-1 at ¶¶

3 The Amended Complaint also alleges that Plaintiff Mattera “visits New York regularly for Yankee[s] games, visits with friends, and to visit the cemetery where his mother is buried” in the Bronx, id., which appears to be irrelevant to his intent to return to Saratoga Springs, let alone the Commercial Property. 4 The Court notes that the Amended Complaint, filed on December 17, 2025, does not modify or update the allegation from the original complaint that Plaintiff Mattera intended to return to the Saratoga Springs area “before December 2025.” See Dkt. No. 13 at ¶ 13. 3-7.5 In each of these complaints, Plaintiffs allege one common factual support as to Plaintiff Mattera’s intent to return to the Commercial Property: plans to attend the 2026 Belmont Stakes. Dkt. No. 15-1 at 8, 25, 42, 60, 75-76. Assuming that Plaintiff Mattera did in fact possess such an intent, absent further details, the Court finds it implausible that Plaintiff Mattera intended to stay at six different hotels, two of which are located in Jamaica, Queens, and another two in Albany,

over the course of a five-day festival located in Saratoga Springs, New York.6 Moreover, none of the complaints allege that Plaintiff Mattera in fact booked a room at any of these hotels at any future date, including those of the festival. See generally Dkt. No. 15-1.7

5 Mattera v. United Capital Corp., Case No. 1:25-cv-1410 (N.D.N.Y.), regarding the Hilton Albany in Albany, New York, Dkt. No. 15-1 at 5-20; Mattera v. CS Albany Realty, LLC, Case No. 1:25-cv-1411 (N.D.N.Y.), regarding the Marriott Albany in Albany, New York, Dkt. No. 15-1 at 22-37; Mattera v. Congress Hotel LLC, Case No. 1:25-cv-1460 (N.D.N.Y.), regarding the Embassy Suites in Saratoga Springs, New York Dkt. No. 15-1 at 39-54; Mattera v. Vista Grp. Servs., Inc., Case No. 1:25-cv-6089 (E.D.N.Y.), regarding the DoubleTree Hilton in Jamaica, New York, Dkt. No. 15-1 at 56-70; Mattera v. NBS New York, LLC, Case No. 1:25-cv-5906 (E.D.N.Y.), regarding the Fairfield Inn in Jamaica, New York, Dkt. No. 15-1 at 72-88. Because Defendants raise a fact-based jurisdictional challenge and the parties’ evidence and arguments raise factual disputes bearing on the plausibility of Plaintiff Mattera’s intent to return, the Court may consider this extrinsic evidence. Makarova v. United States, 201 F.3d 110, 113 (2d Cir. 2000). Moreover, the complaints submitted by Defendants are matters of public record. Williams v. N.Y.C. Hous. Auth., 816 F. App’x 532, 534 (2d Cir. 2020). 6 The 2026 Belmont Stakes occurred on June 3-7, 2026. See 2026 Belmont Stakes Week at a Glance, New York Racing Assoc., https://www.nyra.com/belmont-stakes/event-info/events-and- entertainment/ (last visited July 16, 2026). While this matter has been pending, Plaintiffs commenced two additional ADA suits in this Court alleging that Plaintiff Mattera attended the 2026 Belmont Stakes but that he stayed at hotels not mentioned in any of Plaintiff’s previous filings in any other case: the Residence Inn in Saratoga Springs, New York from June 3-4, and the Hotel Trilogy in Latham, New York from June 6-7. See Case No. 1:26-cv-01513 (N.D.N.Y.); Case No. 1:26-cv-01583 (N.D.N.Y.). The Court may again take notice of the dates during which the 2026 Belmont Stakes occurred and Plaintiffs’ additional complaints, as they are matters of public record. Absent further detail, the Court finds that these allegations in the two additional cases only further dilute the plausibility of Plaintiff Mattera’s allegations in the instant case with respect to his intent to return to the Commercial Property. 7 In considering this extrinsic evidence, the Court notes that it is not basing its judgment on the fact of Plaintiffs’ multiple filings, but on the plausibility concerns created by the allegations in those filings. At least one court in this circuit, however, has held that in an ADA violations case, “[t]he fact that plaintiff is a serial filer (a fact easily gleaned from public records) [ ] bears on the Thus, based on the totality of the relevant factual allegations, the Court determines that the threat of future injury to Plaintiff Mattera is not plausible, real, or immediate for purposes of standing and thus Plaintiffs have not adequately alleged that Plaintiff Mattera has standing to bring his claim pursuant to Title III. C. Website Claim

Defendants similarly contend that Plaintiffs have failed to adequately allege standing to bring their claims for violations of 28 C.F.R. § 36.302(e) relating to the Website. The Court agrees. When considering injury in fact for standing purposes in similar ADA cases, courts in this Circuit have held that “a plaintiff challenging a website’s ADA violations must demonstrate that [he] had a purpose for using the website that the complained-of ADA violations frustrated, such that any injury is concrete and particularized to the plaintiff.” Laufer v. Dove Hess Holdings, LLC, No. 520CV00379, 2020 WL 7974268, at *15 (N.D.N.Y. Nov. 18, 2020). “And to establish a real and immediate threat of repeated injury, a plaintiff must demonstrate that [his] intent to return to the website to book a room, or at least to obtain information that would allow [him] to decide

whether to book a room, is plausible.” Id. As to purpose, the Amended Complaint states that Plaintiff Mattera visited the Website expressly “for the purpose of reviewing and assessing the accessible features at the Commercial Property and ascertain[ing] whether they meet the requirements of 28 C.F.R. Section 36.302(2) and their accessibility needs.” Dkt. No. 13 at ¶ 32. But the Amended Complaint does not claim that Plaintiff Mattera intended to use the Website to book a room at the Commercial Property or was seeking any particular information regarding accessibility that would allow him to decide

plausibility of his standing claim.” Winegard v. Golftec Intell. Prop. LLC, 674 F. Supp. 3d 21, 26 (E.D.N.Y. 2023) (citing Calcano, 36 F.4th at 77). whether to book a room. See id. Indeed, it is also unclear whether Plaintiff Mattera’s alleged visit to the Website occurred before or after his alleged stay on June 4-5, 2025. See id. Furthermore, the Amended Complaint fails to allege how the Website violated the ADA regulation or how any alleged violation discriminated against Plaintiff Mattera other than a vague assertion that the website provided “insufficient [information] or misinformation.” Id. at ¶ 33. Without more, the

Court cannot conclude that Plaintiff Mattera suffered a concrete and particularized injury resulting from any alleged violations on the Website. See, e.g., Laufer, 2020 WL 7974268, at *15. As to Plaintiff Mattera’s intent to return, the Amended Complaint merely alleges that “in the near future,” Plaintiff Mattera intends to “revisit Defendants’ websites and/or online reservations system in order to test them for compliance with 28 C.F.R. Section 36.302(e) and/or to utilize the websites to reserve a guest room and otherwise avail himself of the goods, services, features, facilities, benefits, advantages, and accommodations of the Commercial Property.” Dkt. No. 13 at ¶ 34. In a parallel case, the district court in Harty v. West Point Realty, Inc. rejected this exact language, holding that the plaintiff’s identical allegation was “vague and conclusory”

because it failed to allege facts from which the court could reasonably infer that the plaintiff intended “to return to the websites to book a room or utilize defendant’s services.” 477 F. Supp. 3d 163, 168 (S.D.N.Y. 2020), aff’d, 28 F.4th 435 (2d Cir. 2022). So too here. The Court incorporates its previous finding that the Amended Complaint fails to allege facts from which the Court can reasonably infer Plaintiff Mattera’s intent to return to the Commercial Property, and thus also finds that it cannot infer that Plaintiff Mattera intends to return to the Website to book a room or otherwise utilize Defendants’ services. See, e.g., Gonzalez v. Inn on the Hudson LLC, No. 20 CIV. 9196, 2022 WL 974384, at *3-4 (S.D.N.Y. Mar. 30, 2022); Monge v. 405 Hotel LLC, No. 19 Civ. 451, 2021 WL 982866, at *6 (E.D.N.Y. Feb. 24, 2021), report and recommendation adopted, No. 19 Civ. 451, 2021 WL 980870 (E.D.N.Y. Mar. 15, 2021). Furthermore, Plaintiff Mattera’s claim that he intends to revisit the Website “in the near future” is not sufficiently imminent to create an injury in fact. See Harty v. West Point Realty, Inc., 28 F.4th at 443-44. Indeed, “[s]uch ‘some day’ intentions – without any description of concrete plans, or indeed even any specification of when the some day will be – do not support a

finding of the ‘actual or imminent’ injury” required under Article III. Id. (quoting Lujan, 504 U.S. at 564). Therefore, the Court finds that Plaintiffs have not adequately alleged that Plaintiff Mattera has standing to bring his claim pursuant to 28 C.F.R. § 36.302(e). D. Representational Standing An association has “representational standing to sue in its own name on behalf of its member if (1) its members would otherwise have standing to sue, (2) the interests it seeks to protect are germane to the organization’s purpose, and (3) neither the claim asserted nor the relief requested requires the participation of individuals members. Access 4 All, 458 F. Supp. 2d at 171.

As to the first prong, “an association need only show that ‘one or more of its members has suffered a concrete and particularized injury.’” Id. (quoting Bldg. & Const. Trades Council of Buffalo, New York & Vicinity v. Downtown Dev., Inc., 448 F.3d 138, 145 (2d Cir. 2006)). Here, Plaintiff Access 4 All fails at the first prong. The Amended Complaint’s allegations as to Plaintiff Access 4 All are fully coterminous with those as to Plaintiff Mattera. And Plaintiffs do not allege facts suggesting that Plaintiff Access 4 All has its own standing apart from Plaintiff Mattera to bring this action. See generally Dkt. No. 13. Therefore, because the Court finds that Plaintiff Mattera lacks standing to bring either claim raised in the Amended Complaint for failure to adequately allege an injury in fact, the Court finds that Plaintiff Access 4 All also lacks standing as to those claims. E. Rule 12(b)(6) and Leave to Amend Because the Court finds that Plaintiffs lack standing as to both claims, it dismisses them pursuant to Rule 12(b)(1) without prejudice and does not reach the merits of the Website claim

under Rule 12(b)(6). As to leave to amend, Rule 15 provides that courts are to “freely give leave when justice so requires.” Fed. R. Civ P. 15(a)(2). The Second Circuit has stated that courts should not dismiss a complaint “without granting leave to amend at least once when a liberal reading of the complaint gives any indication that a valid claim might be stated.” Shabazz v. Bezzio, 511 F. App’x 28, 31 (2d Cir. 2013). A court should therefore grant leave to amend “absent evidence of undue delay, bad faith, or dilatory motive on the part of the movant, undue prejudice to the opposing party, or futility.” Monohan v. N.Y.C. Dep’t of Corrs., 214 F.3d 275 283 (2d Cir. 2000). Here, the Court finds that the Amended Complaint’s deficiencies as to standing may be

curable upon more detailed pleading and it is thus not yet apparent that another opportunity to amend would be futile. However, the Court is concerned that Plaintiffs have filed a significant number of nearly identical ADA lawsuits, each of which exhibits “cut-and-paste” allegations, amplified by Plaintiff’s own motion seeking to correct the address of the Commercial Property in the Amended Complaint, which currently lists the address of another hotel that Plaintiffs have sued. See Dkt. No. 22; compare Dkt. No. 13 at ¶ 16 with Dkt. No. 15-1 at 91. Courts in this circuit have identified such features as characteristic of “abusive ADA litigation” which undermines the purpose and spirit of the ADA via the repeated filing of substantively similar complaints “with the hope of intimidating the defendant into an early settlement (or obtaining a default judgment),” allowing for a quick recovery of attorney’s fees. Winegard, 674 F. Supp. 3d at 27 (quoting Shayler v. 1310 PCH, LLC, 51 F.4th 1015, 1018 (9th Cir. 2022) (internal quotation marks omitted). At the outset though, the Court “must tread carefully before construing a Disability Act plaintiff’s history of litigation against him” because in order for the ADA “to yield its promise of equal access for the disabled, it may be necessary and desirable for committed individuals to bring

serial litigation advancing the time when public accommodations will be compliant.” Laufer, 2020 WL 7974268, at *17 (quoting Antoninetti v. Chipotle Mexican Grill, Inc., 643 F.3d 1165, 1175 (9th Cir. 2010)) (internal quotation marks omitted). The Court therefore grants Plaintiffs leave to file a second amended complaint within thirty days. See, e.g., Gannon v. 31 Essex St. LLC, No. 22-CV-1134, 2023 WL 199287, at *4-5 (S.D.N.Y. Jan. 17, 2023); Gonzalez, 2022 WL 974384, at *4. V. CONCLUSION Accordingly, the Court hereby ORDERS that Defendants’ Motion to dismiss, Dkt. No. 15, be GRANTED; and the Court

further ORDERS that Plaintiffs’ Amended Complaint, Dkt. No. 13, be DISMISSED without prejudice and with leave to amend, including to correct the address of the Commercial Property, see Dkt. No. 22, as well as the deficiencies identified above; and the Court further ORDERS that any amended complaint must be filed within thirty (30) days of the filing date of this Order; and the Court further ORDERS that if Plaintiffs fail to file a timely amended complaint, the Clerk is directed to close this case without further order of this Court; and the Court further ORDERS that the Clerk serve a copy of this Order on all parties in accordance with the Local Rules. IT IS SO ORDERED. Dated: August 20, 2026 Quine . Jaraa eer Albany, New York Anne M. Nardacci U.S. District Judge