Juan Colombani v. Rincón de la Villa, Inc.

Opinion

IN THE UNITED STATES DISTRICT COURT

Plaintiff, CIVIL NO. 24-1528 (HRV) v.

Defendant.

OPINION AND ORDER

Plaintiff Juan Colombani (“Colombani” or “Plaintiff”) brings this action against Defendant Rincón de La Villa, Inc. d/b/a Villa Cofresí Hotel & Restaurant (hereinafter “Rincón de la Villa” or “Defendant”) under the American with Disabilities Act (“ADA”). (Second Amended Complaint, Docket No. 23). Count One is a cause of action under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(iv), for removal of architectural barriers. (Id.). Count Two asserts a claim under 42 U.S.C. § 12182(b)(2)(A)(ii) for failure to make reasonable modifications to existing discriminatory policies, practices and procedures. (Id.). Count Three alleges retaliation under 42 U.S.C. § 12203(a). (Id.). According to the allegations in the operative complaint, on July 25, 2024, Colombani, who is a person with disabilities, visited the Villa Cofresí Hotel and Restaurant and was denied a reasonable accommodation by a security guard who

1 allegedly denied him access to available accessible parking spaces. It is further alleged that Rincón de la Villa subsequently failed to respond to Plaintiff’s formal request for a reasonable modification of its policies regarding access to parking spaces for disabled individuals. Colombani also avers that there are numerous architectural barriers at Villa Cofresí such as noncompliant parking facilities and inaccessible restrooms. Lastly, Plaintiff alleges that Defendant engaged in a pattern of retaliation following his exercise of rights protected by the ADA. The retaliatory acts allegedly include blocking Colombani from social media, repeatedly contacting his elderly father to pressure him to drop the lawsuit, and requiring that Colombani seek personal permission from the hotel’s management to access the facilities. Plaintiff seeks declaratory and injunctive relief as well as reasonable attorney’s fees and costs, among other remedies. A bench trial is currently set to begin on October 13, 2026. (Docket No. 25). Pending before the Court is Defendant’s motion for summary judgment. (Docket No. 50). In it, Defendant moves for dismissal of Counts One and Two. As to Count One, the architectural barriers claim, Defendant contends that judgment as a matter of law is warranted because the property it owns and operates—the Villa Cofresí Hotel and Restaurant—meets the applicable design standards. In support, Defendant attaches the unsworn report of its retained expert who inspected the property and concludes that the allegations in the second amended complaint are inaccurate, groundless, and/or false. As to Count Two—the reasonable modifications claim—Defendant argues that Plaintiff cannot, as a matter of law, establish a prima facie case under 42 U.S.C. § 12182(b)(2)(A)(ii) because he “failed to make the requisite pre-litigation request . . . to

2 modify any of [its] policies, practices or procedures[.]” (Docket No. 50 at 7). The motion for summary judgment does not challenge Count Three, the retaliation claim. Plaintiff opposed the request for summary disposition (Docket No. 51) on procedural grounds, claiming that the motion fails to adhere to the requirements of Fed. R. Civ. P. 56 and the local rules applicable to motions for summary judgment. On the merits, Colombani argues that the motion for summary judgment applies the wrong framework to Count One, the architectural barriers claim. He says that the governing question under 42 U.S.C. § 12182(b)(2)(A)(iv) is not when the building was last altered, but whether removal of identified barriers in an existing facility is readily achievable. As to Count Two, Plaintiff maintains that the law only requires that a pre-litigation request for modification be made “in some form” and that his second amended complaint twice pleads how and when Colombani requested a reasonable modification. II. SUMMARY JUDGMENT STANDARD Under Rule 56 of the Federal Rules of Civil Procedure, summary judgment is warranted when “the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P. 56(a). In deciding whether summary judgment is appropriate, the role of the Court is to “pierce the pleadings and to assess the proof in order to see whether there is a genuine need for a trial.” Mesnick v. Gen. Elec. Co., 950 F.2d 816, 822 (1st Cir. 1991) (citing Garside v. Osco Drug, Inc., 895 F.2d 46, 50 (1st Cir. 1990)). The court must view the facts in the light most hospitable to the nonmoving party and draw all reasonable inferences in that party’s favor. See Patterson v. Patterson, 306 F.3d 1156, 1157 (1st Cir. 2002).

3 The moving party bears the initial burden of “asserting the absence of a genuine issue of material fact [and to support] that assertion by affidavits, admissions, or other materials of evidentiary quality.” Mulhill v. Top-Flite Golf Co., 335 F.3d 15, 19 (1st Cir. 2003). The burden then shifts to the opposing party to show that a factual dispute does exist, and that the trier of fact could reasonably find in its favor. See Santiago-Ramos P.R. Wireless Corp., 217 F.3d 46, 52 (1st Cir. 2000). A party opposing a properly supported motion for summary judgment, “may not rest upon the mere allegations or denials of his pleading, but . . . must set forth specific facts showing that there is a genuine issue for trial.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). “A dispute is genuine if the evidence about the fact is such that a reasonable jury could resolve the point in the favor of the non-moving party. A fact is material if it carries with it the potential to affect the outcome of the suit under the applicable law.” Id. (quoting Sánchez v. Alvarado, 101 F.3d 223, 227 (1st Cir. 1996)). “‘Neither conclusory allegations [nor] improbable inferences’ are sufficient to defeat summary judgment.” Carroll v. Xerox Corp., 294 F.3d 231, 236-37 (1st Cir. 2002) (quoting J. Geils Band Employee Benefit Plan v. Smith Barney Shearson, Inc., 76 F.3d 1245, 1251 (1st Cir. 1993)). Procedurally, Rule 56 mandates that the movant support the factual assertions allegedly not in dispute with citations “to particular parts of materials in the record.” Fed. R. Civ. P. 56(c)(1)(A). Moreover, local rule 56(b) requires a movant to include a separate statement of material facts and to support each factual assertion with a citation to the evidentiary record. D.P.R. Civ. R. 56(b). Local Rule 56(e) in turn requires that the citation to the record specifically include “the specific page or paragraph of identified record

4 material supporting the assertion.” D.P.R. Civ. R. 56(e). The rule further provides that “[t]he court may disregard any statement of fact not supported by a specific citation to record material properly considered on summary judgment. Id. III. APPLICABLE LAW AND DISCUSSION A. Local Rule 56 As an initial matter, Defendant Rincón de la Villa did not include a separate statement of uncontested material facts with its motion, as required by Local Rule 56(b). Thus, Defendant cannot meet the burden imposed by Fed. R. Civ. P. 56 on it as the moving party to show the absence of a genuine dispute as to any material fact. This violation of Fed. R. Civ. P. 56 and Local Rule 56, by itself, justifies denial of the motion for summary judgment. Laboy-Salicrup v. Puerto Rico Elec. Power Auth., 244 F. Supp. 3d 266, 270 (D.P.R. 2017) (citing Alberti v. Carlo-Izquierdo, 548 Fed. Appx. 625, 631 (1st Cir. 2013)). Moreover, including factual averments or materials in the body of the motion will not cure a violation of local rule 56(b). See Total Petroleum P.R. Corp. v. Colón, 819 F. Supp. 2d 55, 60 (D.P.R. 2011). The First Circuit has repeatedly emphasized the importance of complying with local rule 56 and has said that litigants ignore the rule “at their peril.” López-Hernández v. Terumo P.R. LLC, 64 F.4th 22, 26 (1st Cir. 2023) (cleaned up). Despite the above-outlined non-compliance with procedural rules, I briefly address the merits of Defendant’s contentions, finding, in any event, that genuine issues of material fact remain thus rendering summary judgment improper.

5 B. Title III of the ADA Congress passed the ADA “to provide a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.” 42 U.S.C. § 12101(b)(1). Title III of the ADA specifically “prohibits discrimination against the disabled in the full and equal enjoyment of public accommodations.” Spector v. Norwegian Cruise Line Ltd., 545 U.S. 119, 128 (2005). To establish a prima facie Title III case under the ADA, a plaintiff “must demonstrate that (1) he or she has a qualified disability under the ADA, (2) the defendant operates a place of public accommodation, and (3) the plaintiff was discriminated against as a result of his or her disability.” Medina-Rodríguez v. Fernández Bakery, Inc., 255 F. Supp. 3d 334, 341 (D.P.R. 2017). Disability discrimination includes “a failure to make reasonable modifications in policies, practices, or procedures” and “a failure to remove architectural barriers, and communication barriers that are structural in nature.” PGA Tour, Inc. v. Martin, 532 U.S. 661, 683 n. 38 (2001). In analyzing an ADA architectural barriers claim under 42 U.S.C. § 12182(b)(2)(A)(iv), the date of a facility’s construction is a crucial piece of information. Cadfi Corp. v. P.R. Tel. Co., No. 22-1246 (BJM), 2024 WL 866269, 2024 U.S. Dist. LEXIS 39626, at *6-7 (D.P.R. Feb. 29, 2024). The Court must determine whether the facility at issue is a new construction or an existing facility as those terms are defined by the applicable regulations. Id. at *7 (citing 28 C.F.R. §§ 36.401(a), 36.402(a)). Pursuant to 28 C.F.R. § 36.401(a), if the property was built to be first occupied after January 26, 1993, it would be considered a new construction. 28 C.F.R. § 36.401(a). However, if the

6 property at issue was built before that date, it would be considered an existing facility. Id. For existing facilities, plaintiff must show the modifications are “readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). “The term ‘readily achievable’ means easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). On the other hand, to prevail on a claim of reasonable modification of policies and practices under 42 U.S.C. § 12182(b)(2)(A)(ii), Plaintiffs must make a six-part showing: (1) that []he comes within the protections of the ADA as a person with a disability; (2) that the defendant’s establishment is subject to the mandates of Title III as a place of public accommodation; (3) that the defendant has a discriminatory policy or practice in effect; (4) that []he requested a reasonable modification in that policy or practice which, if granted, would have afforded him access to the desired goods; (5) that the requested modification—or a modification like it—was necessary to afford that access; and (6) that the defendant nonetheless refused to modify the policy or practice. Calderón v. Internal Med. Canóvanas Grp. Corp., No. 22-cv-1240 (ADC), 2025 WL 2615051, 2025 U.S. Dist. LEXIS 178974, at *16-17 (D.P.R. Sep. 10, 2025) (citing Doe v. Rhode Island Interscholastic League, 137 F.4th 34, 40 (1st Cir. 2025); see also Dudley v. Hannaford Bros. Co., 333 F.3d 299, 307 (1st Cir. 2003). 1. Count One – Architectural Barriers In support of its contention that Count One should be dismissed, Defendant attached the report of its retained expert, Architect Jorge Calderón-López. (Docket No. 50-2). Rincón de la Villa maintains that said expert report demonstrates that the allegations in the amended complaint regarding structural barriers are inaccurate,

7 incomplete, and lacking a basis in fact. In response, Plaintiff takes issue with the fact that said report is not submitted under oath or under the penalty of perjury. According to Colombani, the expert report cannot serve as the evidentiary foundation for Defendant’s motion for summary judgment. (Docket No. 51 at 6) (citing Fed. R. Civ. P. 56(c)(4)). Plaintiff also argues that even if the undersigned could consider the report, genuine issues of material fact remain because the report applies the wrong legal framework and does not engage in the analysis of whether removal of the barriers in an existing facility is readily achievable. I agree with Plaintiff that the unsworn expert report cannot supply the evidentiary basis of a finding that no genuine issues of material fact exist regarding the presence of architectural barriers and whether removal is readily achievable. Ramírez-Ortíz v. Corporación del Centro Cardiovascular de P.R. y del Caribe, 32 F. Supp. 3d 83, 88 (D.P.R. 2014) (finding that an unsworn expert report is inadmissible hearsay and cannot be considered as part of the summary judgment record); see also Garside v. Osco Drug, Inc., 895 F.2d at 50 (excluding expert report from consideration on summary judgment as hearsay when the substance of the report was not sworn to by expert while noting that a third party’s description of an expert’s supposed testimony is not “suitable grist for the summary judgment mill.”). Even if I could consider the report, I find that it fails to establish the complete absence of a triable issue on the critical questions of the existence of architectural barriers and the cost and difficulty of bringing the property into compliance. The expert simply opines that no such barriers exist based on his inspection of the premises and characterizes Plaintiff’s claims as frivolous. However, the report is

8 largely conclusory and provides no measurements or detailed analysis vis à vis the relevant accessibility guidelines. See Betancourt-Colón v. Arcos Dorados P.R., LLC, No. 21-1311 (BJM), 2023 WL 171123, 2023 U.S. Dist. LEXIS 6946 (D.P.R. Jan. 12, 2023) (in many instances, the expert report provided no measurements nor offered evidence of height with respect to architectural barriers claim). 2. Count Two – Reasonable Modification In its motion for summary judgment, Defendant only challenges the element requiring that a person with a disability make a pre-litigation request for a reasonable modification to an alleged discriminatory policy, practice, or procedure. See Dudley, 333 F.3d at 307 (“The operative provision, 42 U.S.C. § 12182(b)(2)(A)(ii), requires a person with a disability to request a reasonable and necessary modification, thereby informing the operator of a public accommodation about the disability.”). Courts within this district have held that a plaintiff must request a reasonable modification before filing his or her complaint. See Laboy-Febo v. Arcos Dorados P.R., LLC, No. 21-cv-1245 (GMM), 2024 U.S. Dist. LEXIS 65219, at *17 (D.P.R. Mar. 31, 2024); Cadfi Corp. v. Puerto Rico Tel. Co., 2024 WL 866269, 2024 U.S. Dist. LEXIS 39626; Betancourt Colón v. Puerto Rico Convention Ctr. Dist. Auth., No. CV 22-01288 (MAJ), 2023 U.S. Dist. LEXIS 140845, 2023 WL 5163320, at *4 (D.P.R. Aug. 11, 2023). “Under ADA, the request for accommodation need not take on a specific form or language.” Huertas-León v. Colón- Rolón, 376 F. Supp. 3d 167, 178 (D.P.R. 2019) (citing Kelley v. Mayhew, 973 F. Supp. 2d 31, 39 (D. Me. 2013)).

9 The crux of Defendant’s argument as to this issue is that Colombani sent his pre- litigation request for modification to the wrong person. Rincón de la Villa says that after the July 25, 2024, incident in which he was allegedly denied access to available parking spaces, Colombani sent a letter dated October 21, 2024, to Ms. Ritin Caro (“Ms. Caro”), the widow of Mr. Rubén Caro-Muñiz, who was the founder of Hotel Villa Cofresí in 1965. (Docket No. 50-1). Defendant claims, however, that Rincón de la Villla, Inc. is the legal entity that became the owner of the hotel in 1995 and that Ms. Caro is not a shareholder nor a member of the Board of Directors of Rincón de la Villa, Inc. (Docket No. 50 at 9). Therefore, according to Defendant, Plaintiff failed to comply with the requirement of a pre-litigation request for modification. Plaintiff ripostes that it twice requested a reasonable modification. First, verbally to the security guard that refused to grant him access to the available parking spaces on July 25, 2024, and subsequently via the letter dated October 21, 2024. Plaintiff also submits that Defendant cannot meet its burden on summary judgment simply by making a factual averment in its motion without evidentiary support. Lastly, Colombani argues that it should be left to the trier of fact to decide if the request made to Ms. Caro is sufficient pre-litigation notice under the ADA. As to this issue, I also find that summary judgment is not warranted. The Defendant fails to attach any document of evidentiary quality to support its position. And on summary judgment, courts “consider only facts properly put into evidence by pleadings, depositions, answers to interrogatories, admissions on file and affidavits.” Frito-Lay of Puerto Rico, Inc. v. Canas, 92 F.R.D. 384, 391 (D.P.R. 1981) (citing Fed. R.

10 Civ. P. 56(c) and (e)). Summary judgment should be denied for that reason alone. What’s more, Defendant has not cited any authority supporting its argument that that the request made informally during the alleged incident or the letter subsequently sent are communications that, as a matter of law, do not constitute sufficient notice of a request for modification of existing practices or policies under the ADA. On the contrary, as noted above, there is case law standing for the proposition that a request does not have to follow a specific form or include any specific language; a verbal request may suffice. Cadfi Corp. v. Puerto Rico Tel. Co., 2024 U.S. Dist. LEXIS 39626, at *14 (citing Karczewski v. DCH Mission Valley LLC, 862 F.3d 1006, 1008 (9th Cir. 2017)). IV. CONCLUSION In view of the above, the motion for summary judgment at Docket No. 50 is DENIED in its entirety. IT IS SO ORDERED. In San Juan, Puerto Rico this 27th day of August, 2026. s/Héctor L. Ramos-Vega HÉCTOR L. RAMOS-VEGA UNITED STATES MAGISTRATE JUDGE