Hennessy v. Poetica Coffee Inc

E.D. New York

Hennessy v. Poetica Coffee Inc

DecidedSeptember 7, 2022

Docket1:21-cv-05063

StatusUnknown

This text of Hennessy v. Poetica Coffee Inc (Hennessy v. Poetica Coffee Inc) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hennessy v. Poetica Coffee Inc, (E.D.N.Y. 2022).

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Opinion

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF NEW YORK -----------------------------------------X

WILLIAM HENNESSSY, by and through his Guardian, Josephine Hennessy, MEMORANDUM & ORDER Plaintiff, 21-CV-5063 (KAM) (RML)

- against -

POETICA COFFEE INC.; THOR ATLANTIC GARDENS LLC,

Defendants.

-----------------------------------------X KIYO A. MATSUMOTO, United States District Judge: Plaintiff William Hennessy, by and through his guardian, Josephine Hennessy, moves for a default judgment in this Americans with Disabilities Act (“ADA”) action against Defendants Poetica Coffee Inc. and Thor Atlantic Gardens LLC. (ECF No. 10.) By report and recommendation dated August 8, 2022, Magistrate Judge Robert M. Levy recommended that the motion be granted in part and denied in part. (ECF No. 11 (“R&R”).) In light of the Second Circuit’s recent decision in Calcano v. Swarovski North America Ltd., 36 F.4th 68 (2d Cir. 2022), the court respectfully declines to adopt the R&R, DENIES the motion for default judgment, DISMISSES this action without prejudice for lack of Article III standing, and GRANTS Plaintiff thirty days leave from the date of this memorandum and order to file an amended complaint. BACKGROUND

Plaintiff suffers from cerebral palsy and requires a wheelchair to ambulate. (ECF No. 1 (“Compl.”) ¶ 6.) The complaint alleges that Defendants own and operate a place of public accommodation located at 529 Atlantic Avenue in Brooklyn, New York (the “Premises”). (Id. ¶ 7.) Plaintiff claims that numerous barriers to access exist at the Premises that have deterred Plaintiff from patronizing Defendants’ business. (Id. ¶ 21.) Plaintiff alleges that, as a resident of Kings County, he “frequently travels to the area” where Defendants’ place of public accommodation is located and that he “intends to patronize” Defendants’ business “several times a year after it becomes fully accessible.” (Id. ¶¶ 5, 28-29.) Plaintiff commenced this action on September 9, 2021, asserting claims for violations of the ADA, New York State Executive Law, the Administrative Code of the City of New York, and New York State Civil Rights Law. (Id. ¶¶ 30-72.) Despite

being served with the summons and complaint (ECF Nos. 6-7), Defendants failed to appear or otherwise defend in this action. Accordingly, the Clerk of Court entered a certificate of default on January 13, 2022, and Plaintiff filed the instant motion for default judgment on January 14, 2022. (ECF Nos. 9-10.) On April 4, 2022, the court referred Plaintiff’s motion for default judgment to Magistrate Judge Levy for a report and recommendation. (4/4/22 Minute Order.) By report and recommendation dated August 8, 2022, Magistrate Judge Levy recommended granting in part and denying in part the motion for default judgment. (R&R at 16.) Relevant here, Magistrate Judge Levy concluded that Plaintiff plausibly alleged

Article III standing to seek injunctive relief under the ADA. (Id. at 4-6.) As the R&R noted, Plaintiff alleges that he lives in Kings County, that he observed several architectural barriers upon visiting the Premises, and that he intends to visit the Premises several times a year. (Id. at 5.) On August 12, 2022, Plaintiff served a copy of the R&R on Defendants. (ECF No. 12.) No party has objected to the R&R, and the time to do so has passed. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 72(b)(2). LEGAL STANDARD The court “may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate

judge.” 28 U.S.C. § 636(b)(1). Where, as here, no objection to a report and recommendation has been timely made, the court “need only satisfy itself that there is no clear error on the face of the record.” Urena v. New York, 160 F. Supp. 2d 606, 609-10 (S.D.N.Y. 2001) (quoting Nelson v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985)). Article III standing is an “irreducible constitutional minimum.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). “Thus, even though defendants have not appeared in this action and have not challenged plaintiff’s standing to sue, the Court evaluates whether plaintiff has standing.” Dunston v. Spice of India Inc., 2022 WL 994502, at *3 (E.D.N.Y. Feb. 14, 2022)

(citation omitted), report and recommendation adopted, Minute Order (E.D.N.Y. Mar. 17, 2022). To establish standing, “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.” Calcano, 36 F.4th at 74 (quoting TransUnion LLC v. Ramirez, 141 S. Ct. 2190, 2203 (2021)). In addition, a plaintiff seeking injunctive relief “may not rely solely on past injury, but also must establish that ‘[he] is likely to be harmed again in the future in a similar way.’” Id. (citation omitted).

At the default judgment stage, as at the motion to dismiss stage, the plaintiff “bears the burden of alleging facts that affirmatively and plausibly suggest that the plaintiff has standing to sue.” Id. at 75 (citation omitted); see also, e.g., Steginsky v. Xcelera Inc., 741 F.3d 365, 368 (2d Cir. 2014) (finding that the district court “properly applied an identical standard” to a default judgment motion and a Rule 12(b)6) motion to dismiss). DISCUSSION As the R&R recognized, the Second Circuit has found standing to seek injunctive relief in ADA cases where: “(1) the plaintiff alleged past injury under the ADA; (2) it was reasonable

to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff’s visits and the proximity of defendant[’s] restaurant[] to plaintiff’s home, that plaintiff intended to return to the subject location.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187–88 (2d Cir. 2013) (per curiam). Applying this three-part test, district courts in this circuit developed “a broad view of constitutional standing” in ADA cases because “private enforcement suits are the primary method of obtaining compliance with the [ADA].” E.g., Dunston, 2022 WL 994502, at *3 (citation omitted). As Magistrate Judge Bloom aptly observed, “the concept of standing

ha[d] been so eroded” in ADA cases that even “threadbare allegations” were sufficient. Chavez v. L2 Liu Inc., 2021 WL 1146561, at *4 (E.D.N.Y. Feb. 26, 2021), report and recommendation adopted in relevant part, 2021 WL 1146040 (E.D.N.Y. Mar. 25, 2021). In Calcano, however, the Second Circuit made clear that a plaintiff’s “conclusory invocation[]” of the Kreisler factors is “insufficient to establish standing.” 36 F.4th at 75. Calcano concerned four visually impaired individuals who relied on braille to read written materials and who alleged that various retailers violated the ADA by failing to offer gift cards containing braille. Id. at 72 & n.2. The plaintiffs alleged that they resided “in close proximity” to defendants’ businesses, that they had been a customer at defendants’ businesses “on prior occasions,” and that

they “intend[ed] to immediately purchase at least one store gift card” as soon as the defendants became ADA-compliant. Id. at 76.

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