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Dunston v. Babushka LLC

United States District Court, E.D. New York
Dec 19, 2024
No. 24-CV-2969 (E.D.N.Y. Dec. 19, 2024)

Opinion

24-CV-2969

12-19-2024

NATOSHA DUNSTON, Plaintiff, v. BABUSHKA LLC, and ST CAFE LLC, Defendants.


Merchant, J.

REPORT AND RECOMMENDATION

JOSEPH A. MARUTOLLO UNITED STATES MAGISTRATE JUDGE

Plaintiff Natosha Dunston commenced this action, pursuant to the Americans with Disabilities Act, as amended, 42 U.S.C. § 12181, et seq. (“ADA”), on April 22, 2024, against defendants Babushka LLC and St Cafe LLC after allegedly encountering structural barriers at the restaurant Sincerely Tommy, that purportedly impeded Plaintiff's access to the business in contravention of the ADA's Accessibility Guidelines, 28 C.F.R. Part 36 (“ADAAG”). See generally Dkt. No. 1.

After voluntarily dismissing Babushka LLC as a defendant to the action on May 9, 2024 (Dkt. No. 7), Plaintiff filed a motion for default judgment against the sole remaining defendant, St Cafe LLC (“Defendant”) on October 1, 2024. See Dkt. Nos. 12-13, 16; see also Dkt. No. 18. On October 3, 2024, the Honorable Orelia E. Merchant, United States District Judge, referred Plaintiff's motion to the undersigned. See Referral Order dated Oct. 3, 2024. For the reasons set forth below, this Court respectfully recommends that Plaintiff's motion be GRANTED in PART and DENIED in PART.

I. Background

A. Factual Allegations

The following facts are taken from the Complaint, Plaintiff's motion, and the attachments filed in support of Plaintiff's motion; the facts are assumed to be true for the purposes of this motion. See Finkel v. Romanowicz, 577 F.3d 79, 84 (2d Cir. 2009) (in light of defendant's default, a court is required to accept all of plaintiff's factual allegations as true and draw all reasonable inferences in plaintiff's favor); see also BASF Corp. v. Original Fender Mender, Inc., No. 23-CV-2796 (HG) (JAM), 2023 WL 8853704 (E.D.N.Y. Dec. 22, 2023), report and recommendation adopted, Text Order (E.D.N.Y. Jan. 9, 2024) (same); Doe v. Hyassat, No. 18-CV-6110 (PGG) (OTW), 2024 WL 1955354 (S.D.N.Y. May 3, 2024) (same).

Plaintiff “is a qualified individual with disabilities under the [ADA].” Id. at ¶ 2. In September of 2015, Plaintiff's left leg was amputated after she suffered an adverse reaction to medications during a surgical procedure, resulting in excessive blood clotting in her legs. Id. Plaintiff currently resides in Brooklyn, New York. Id.

Defendant is a limited liability company that transacts business in New York and within this judicial district. Id. at ¶ 4. Defendant is the lessee and operator of the business known as Sincerely Tommy, located at 343 Tompkins Avenue, Brooklyn, New York 11216. Id.

Plaintiff asserts that Sincerely Tommy “is a public accommodation and service establishment.” Id. at ¶ 7. According to her Complaint, Plaintiff visited and attempted to access Sincerely Tommy “on or about the middle of June 2023, and again on or about February 20, 2024.” Id. at ¶ 5; see also id. at ¶ 9. On both occasions, Plaintiff claims that she was unable to access the establishment “without severe hardship, because of her disabilities, and the physical barriers to access and ADA violations that exist” at Sincerely Tommy. Id. at ¶ 11.

Plaintiff alleges that the “unlawful physical barriers, dangerous conditions and ADA violations” that exist at the subject business include, but are not limited to: “[i]naccessible entrance”; “[a]ccessible route to establishment not provided as required”; “[a]ccessible means of egress not provided as required”; “[e]xisting step at entrance acts as a barrier to accessibility”; “[r]equired ramp not provided for step at entrance”; “[r]equired minimum maneuvering clearance not provided at entrance door”; “[n]on-compliant change in floor level within required maneuvering clearance at entrance door”; “[i]naccessible exterior dining tables”; “[r]equired minimum knee and toe clearance not provided at exterior dining tables”; “[a] minimum percentage of existing exterior dining tables required to be accessible not provided”; “[i]naccessible restroom”; “[i]naccessible lavatory in restroom”; “[r]equired grab bars not provided on rear and side walls of water closet in restroom”; and “[i]naccessible coat hook in restroom.” Id. at ¶ 14. These barriers to access, in turn, “restrict and/or limit her access to the goods and services” Sincerely Tommy offers to the public. Id. at ¶ 11.

The Complaint provides a detailed, non-exhaustive, list of alleged violations of the ADA's Accessibility Guidelines, 28 C.F.R. Part 36, at the subject property. See Dkt. No. 1 at ¶ 14.

Plaintiff asserts that she “lives only several miles from the [Sincerely Tommy], passes by [Sincerely Tommy] at least once per week when [s]he is doing errands, visiting family and friends throughout the borough, and looking to eat out.” Id. at 6. Further, Plaintiff contends that Sincerely Tommy is located on a street with restaurants where Plaintiff dines “about once or twice a month,” is in a neighborhood where Plaintiff “dines out two to three times per month,” and that she has “dined at, and in, nearly all of the neighboring restaurants surrounding [Sincerely Tommy].” Id. In her Complaint, Plaintiff “affirms that she would dine at the [Sincerely Tommy] and avail herself of the goods and services offered to the public, were it not for the structural barriers inhibiting [her] ability to enter” the Sincerely Tommy. Id. Plaintiff alleges she “has suffered and continues to suffer direct and indirect injury as a result of the ADA violations that exist at [Sincerely Tommy].” Id. at 8.

As of April 22, 2024-the date this action was commenced-Defendant have not “remov[ed] architectural barriers as required by [the ADA]” and “continue to discriminate against [Plaintiff] and others with disabilities.” Id. at ¶ 13. Plaintiff seeks a permanent injunction (1) “enjoining Defendant[ ] from continuing [its] discriminatory practices,” (2) “ordering Defendant[ ] to remove the physical barriers to access and alter the Facility to make it readily accessible . . . to the extent required by the ADA”, and (3) “closing [Sincerely Tommy] until the barriers are removed and requisite alterations are completed” along with reasonable attorney's fees, expert fees, costs, and litigation expenses. Id. at 15.

Page citations are to the ECF-stamped page numbers.

B. Procedural History

Plaintiff filed the Complaint on April 22, 2024. Dkt. No. 1. That same day, the Clerk of Court issued summonses for all Defendants. Dkt. No. 4. On May 9, 2024, Plaintiff voluntarily dismissed Babushka LLC as a defendant to the action. Dkt. No. 7.

On May 3, 2024, Plaintiff served Defendant. Dkt. No. 9; see also Text Order dated June 26, 2024. Defendant's answer was due on May 24, 2024. Text Order dated June 26, 2024. After no appearances, answers, or responses were interposed by Defendant, the Court instructed Plaintiff to file her request for a certificate of default by July 1, 2024. Id. After timely requesting a certificate of default (Dkt. No. 10), the Clerk of the Court entered a certificate of default against Defendant under Federal Rule of Civil Procedure 55(a). Dkt. No. 11.

On July 3, 2024, the undersigned ordered Plaintiff to move for default judgment on or before October 2, 2024. See Text Order dated July 3, 2024. On October 1, 2024, Plaintiff filed her motion for default judgment. See Dkt. Nos. 12-13. In her motion, Plaintiff seeks an order from the Court enjoining Defendant to remove certain architectural barriers that violate the ADA, as well as an award for costs and reasonable attorney's fees incurred in bringing the suit. Dkt. No. 12 at 4-12.

On October 16, 2024, Plaintiff requested leave to amend her proposed final default judgment to correct “a discrepancy in the case style.” Dkt. No. 14. Following additional motion practice, the Court granted Plaintiff's request to amend the proposed default judgment. See Text Order dated Oct. 16, 2024; Oct. 17, 2024; see also Dkt. No. 16.

Plaintiff's motion at Dkt. No. 14 wrongly identifies Plaintiff as “Dunston Natosha” in the caption and as “Joseph Rouse” in the body of the text. The proposed final default judgment also lists Plaintiff incorrectly as “Dunston Natosha.”

On October 19, 2024, after noting her failure to provide support for her claims for attorney's fees and costs in the action, the Court directed Plaintiff, inter alia, to file supplemental submissions to remedy such deficiencies by October 24, 2024. Text Order dated Oct. 19, 2024.

On October 24, 2024, Plaintiff filed her supplemental materials pursuant to the Court's order, which included an affirmation in support of her request for attorney's fees and costs and contemporaneous billing statements. Dkt. Nos. 18, 18-1, 18-2.

II. Standard for Default Judgment

Rule 55 of the Federal Rules of Civil Procedure provides a two-step process for obtaining a default judgment.” Priestley v. Headminder, Inc., 647 F.3d 497, 504 (2d Cir. 2011). At the first step, the Clerk of Court enters a party's default after an affidavit or other evidence shows that the “party against whom a judgment for affirmative relief is sought has failed to plead or otherwise defend.” Fed.R.Civ.P. 55(a); see Esquivel v. Lima Rest. Corp., No. 20-CV-2914 (ENV) (MMH), 2023 WL 6338666, at *3 (E.D.N.Y. Sept. 29, 2023) (“[W]hen a party uses an affidavit or other proof to show that a party has ‘failed to plead or otherwise defend' against an action, the clerk shall enter a default.” (citing Fed.R.Civ.P. 55(a)). “If a claim is for ‘a sum certain or a sum that can be made certain by computation,' the clerk can enter judgment.” Id. (citing Fed.R.Civ.P. 55(b)(1)).

At the second step, and “[i]n all other cases, the party must apply to the court for a default judgment.” Id. (citing Fed.R.Civ.P. 55(b)(2)). To “enter or effectuate judgment,” the Court is empowered to: “(A) conduct an accounting; (B) determine the amount of damages; (C) establish the truth of any allegation by evidence; or (D) investigate any other matter.” Fed.R.Civ.P. 55(b)(2).

The Second Circuit “generally disfavor[s]” default judgment and has repeatedly expressed a “preference for resolving disputes on the merits.” Enron Oil Corp. v. Diakuhara, 10 F.3d 90, 96 (2d Cir. 1993). Nevertheless, in evaluating a motion for default judgment, a court accepts as true the plaintiff's well-pleaded factual allegations-except those relating to damages. Greyhound Exhibitgroup, Inc. v. E.L.U.L. Realty Corp., 973 F.2d 155, 158 (2d Cir. 1992); see also Flaks v. Koegel, 504 F.2d 702, 707 (2d Cir. 1974). The plaintiff bears the burden of alleging “specific facts,” rather than “mere labels and conclusions” or a “formulaic recitation of the elements,” so that a court may infer a defendant's liability. Cardoza v. Mango King Farmers Mkt. Corp., No. 14-CV-3314 (SJ) (RER), 2015 WL 5561033, at *3 (E.D.N.Y. Sept. 1, 2015) (citing Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)), report and recommendation adopted, 2015 WL 5561180 (E.D.N.Y. Sept. 21, 2015)).

The decision to grant or deny a default motion is “left to the sound discretion of a district court.” Esquivel, 2023 WL 6338666, at *3 (quoting Shah v. New York State Dep't of Civ. Serv., 168 F.3d 610, 615 (2d Cir. 1999)). A court “possesses significant discretion” in granting a motion for default judgment, “including [determining] whether the grounds for default are clearly established.” Chen v. Oceanica Chinese Rest., Inc., No. 13-CV-4623 (NGG) (PK), 2023 WL 2583856, at *7 (E.D.N.Y. Mar. 21, 2023) (quotations and citation omitted). The Court may also “consider numerous factors, including whether plaintiff has been substantially prejudiced by the delay involved and whether the grounds for default are clearly established or in doubt.” Franco v. Ideal Mortg. Bankers, Ltd., No. 07-CV-3956 (JS) (AKT), 2010 WL 3780972, at *2 (E.D.N.Y. Aug. 23, 2010) (cleaned up), report and recommendation adopted, 2010 WL 3780984 (E.D.N.Y. Sept. 17, 2010). “Courts have significant discretion in granting default judgments and consider the following factors: (1) whether the defendant's default was willful; (2) whether [the] defendant has a meritorious defense to [the] plaintiff's claims; and (3) the level of prejudice the nondefaulting party would suffer as a result of the denial of the motion for default judgment.” Canon U.S.A., Inc. v. Sysorex Gov't Servs., Inc., No. 23-CV-8001 (DLI) (LGD), 2024 WL 1914347, at *3 (E.D.N.Y. May 1, 2024) (internal citations omitted); see also Enron Oil Corp., 10 F.3d at 96; Franco, 2010 WL 3780972, at *2 (listing factors).

III. Jurisdiction and Venue

The Court “must satisfy itself that it has subject matter and personal jurisdiction before rendering judgment against defendants.” Dumolo v. Dumolo, No. 17-CV-7294 (KAM) (CLP), 2019 WL 1367751, at *4 (E.D.N.Y. Mar. 26, 2019); see Covington Indus., Inc. v. Resintex A.G., 629 F.2d 730, 732 (2d Cir. 1980) (“A judgment entered against parties not subject to the personal jurisdiction of the rendering court is a nullity.”).

A. Subject Matter Jurisdiction

The Court has subject matter jurisdiction over Plaintiff's action. Pursuant to 28 U.S.C. § 1331, district courts retain “original jurisdiction of all civil actions arising under the . . . laws . . . of the United States.” 28 U.S.C. § 1331.

The Complaint alleges violations of the ADA. See Dkt. No. 1 ¶ 1. Nothing in the record suggests that Plaintiff's ADA claims are not colorable, immaterial, made solely for the purpose of obtaining jurisdiction, fully insubstantial, or frivolous. A&B Alt. Mktg. Inc. v. Intl. Quality Fruit Inc., 35 F.4th 913, 915 (2d Cir. 2022). This action thus “arises under” federal law and gives the Court subject matter jurisdiction over the action. See, e.g., Chavez v. 25 Jay St. LLC, No. 20-CV-845 (AMD) (PK), 2021 WL 982865, at *3 (E.D.N.Y. Feb. 24, 2021), report and recommendation adopted, 2021 WL 980257 (E.D.N.Y. Mar. 16, 2021) (“The Court has original jurisdiction over Plaintiff's ADA claims pursuant to 28 U.S.C. § 1331”) (citing 28 U.S.C. § 1331).

Accordingly, the Court has subject matter jurisdiction over Plaintiff's ADA claim.

B. Standing

“To establish [Article III] 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.” TransUnion LLC v. Ramirez, 594 U.S. 413, 423 (2021) (citing Lujan v. Defs. of Wildlife, 504 U.S. 555, 56061 (1992)). “[S]tanding is a threshold matter of justiciability, and if a plaintiff lacks standing to sue, the Court has no choice but to dismiss the plaintiff's claim for lack of subject-matter jurisdiction.” Dunston v. Piotr & Lucyna LLC, No. 21-CV-6402 (AMD) (SJB), 2023 WL 5806291, at *4 (E.D.N.Y. July 26, 2023), report and recommendation adopted, 2023 WL 5806253 (E.D.N.Y. Sept. 7, 2023) (citing Tavarez v. Moo Organic Chocolates, LLC, No. 21-CV-9816 (VEC), 2022 WL 3701508, at *4 (S.D.N.Y. Aug. 26, 2022)). “Like all subject matter issues, standing can be raised sua sponte.” Dunston, 2023 WL 5806291, at *4 (quoting Cent. States Se. & Sw. Areas Health & Welfare Fund v. Merck-Medco Managed Care, L.L.C., 433 F.3d 181, 198 (2d Cir. 2005)).

“In ADA cases, a broad view of constitutional standing is appropriate because private enforcement suits are the primary method of obtaining compliance with the Act.” Hashimi v. Conandy Realty LLC, No. 23-CV-2300 (LDH) (MMH), 2024 WL 1006833, at *3 (E.D.N.Y. Mar. 8, 2024) (quoting Adams v. 8618-8620 Third Ave. Realty Corp., No. 22-CV-05722 (FB) (RER), 2023 WL 5279355, at *3 (E.D.N.Y. July 28, 2023), report and recommendation adopted, 2023 WL 5278483 (E.D.N.Y. Aug. 16, 2023)); Brown v. Mermaid Plaza Assocs. LLC, No. 13-CV-760 (AMD) (CLP), 2018 WL 2722454, at *6 (E.D.N.Y. Mar. 8, 2018). A plaintiff “need not personally encounter each ADA violation within the [property] in order to seek its removal,” and “once a plaintiff establishes standing with respect to one barrier in a place of public accommodation, that plaintiff may bring ADA challenges with respect to all other barriers on the premises that affect the plaintiff's particular disability.” Adams, 2023 WL 5279355, at *3 (quoting Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013)).

To establish standing under the ADA, the complaint must contain “(1) allegations of past injury under the ADA, (2) allegations supporting a reasonable inference of continued discriminatory treatment, and (3) allegations supporting a reasonable inference that a plaintiff plans to return to the subject location.” Adams, 2023 WL 5279355, at *3 (quoting Feltzin v. Stone Equities, LLC, No. 16-CV-6457 (SJF) (AKT), 2018 WL 1115135, at *9 (E.D.N.Y. Feb. 8, 2018), report and recommendation adopted, 2018 WL 1114682 (Feb. 26, 2018)). “In the ADA context, the concept of standing has been so eroded that it has been established even on threadbare allegations.” Chavez v. L2 Liu Inc., No. 20-CV-1388 (ENV) (LB), 2021 WL 1146561, at *4 (E.D.N.Y. Feb. 26, 2021), report and recommendation adopted as modified, 2021 WL 1146040 (E.D.N.Y. Mar. 25, 2021), and supplemented, 2021 WL 7368670 (E.D.N.Y. Apr. 12, 2021) (citing Harty v. Simon Prop. Grp., L.P., 428 Fed.Appx. 69, 71 (2d Cir. 2011) (summary order) (finding that plaintiff's future undefined intention to return to a mall in the vicinity where his family lived established plausible intention to return)).

Here, Plaintiff satisfies all three standing requirements under the ADA. First, Plaintiff alleges that in June 2023 and on or about February 20, 2024, she visited Sincerely Tommy but was unable to enter because of structural barriers. Dkt. No. 1 ¶ 5. She describes these structural barriers as, including, inter alia, an inaccessible entrance, an inaccessible exterior dining tables and benches, an inaccessible interior dining tables and dining counter, and an inaccessible restroom. Id. at ¶ 14. Plaintiff has therefore alleged an injury under the ADA due to Defendant's failure allow Plaintiff to access the business. Adams, 2023 WL 5279355, at *3 (where the court found similar allegations to constitute an alleged injury “under the ADA by Defendants' failure to make the Facility accessible”); see Hashimi, 2024 WL 1006833, at *4 (finding the first prong of the ADA standing test to have been met where complaint cited “specific ADA regulations and remedial measures”).

Second, it is also reasonable to infer that the discriminatory treatment will continue without court intervention because “the barriers were architectural in nature.” See Dkt. No. 1 at ¶ 13 (noting that the pertinent barriers are “architectural”); see also Adams, 2023 WL 5279355 at *3; see Hashimi v. CLMO, LLC, No. 20-CV-1073 (DG) (RLM), 2021 WL 3478174, *4 (E.D.N.Y. July 19, 2021), report and recommendation adopted, 2021 WL 3472658 (E.D.N.Y. Aug. 6, 2021) (finding the second standing requirement satisfied in light of “the number and nature of the barriers” alleged).

Third, Plaintiff alleges that there is a reasonable inference that she plans to return to the subject location. Dkt. No. 1 at ¶¶ 5, 7. “[T]he focus of the third factor-i.e., intent to return based on past visits and proximity-is to ensure that ‘the risk of harm is sufficiently imminent and substantial' to establish standing.” Calcano v. Swarovski N. Am. Ltd., 36 F.4th 68, 74-75 (2d Cir. 2022) (quoting TransUnion, 594 U.S. at 435). “In order to satisfy the third factor, it is not sufficient simply to plead the ‘magic words' that the plaintiff ‘intends to return'; rather, the plaintiff must plausibly allege ‘a real and immediate threat of future injury.'” Norman v. Three in One Equities, LLC, No. 22-CV-3173 (JLR) (JLC), 2024 WL 488181, at *3 (S.D.N.Y. Feb. 8, 2024), report and recommendation adopted, 2024 WL 967175 (S.D.N.Y. Mar. 6, 2024) (citing Calcano, 36 F.4th at 74-75).

“Courts considering ADA claims have found that disabled plaintiffs who had encountered barriers at restaurants . . . prior to filing their complaints have standing to bring claims for injunctive relief if they show a plausible intention or desire to return to the place but for the barriers to access.” Hashimi, 2024 WL 1006833, at *4 (citations omitted).

In Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187-88 (2d Cir. 2013)), “the Second Circuit found that the plaintiff, who lived within several blocks of the defendant's diner, regularly passed by the diner, and often frequented other diners in the neighborhood, had satisfied that requirement.” Norman, 2024 WL 488181, at *3 (citing Kreisler, 731 F.3d at 188). In contrast to Kreisler, the Second Circuit in Calcano held that the plaintiffs failed to demonstrate standing since the plaintiffs allegations-namely, that they resided “in close proximity” to the defendants' businesses, that they had been customers “on prior occasions,” and that they “intend[ed] to immediately purchase at least one store gift card” at the businesses once barriers to access had been removed as “threadbare assertions”-were “conclusory and [did] not raise a reasonable inference of injury.” 36 F.4th at 76.

Here, Plaintiff alleges that she resides “only several miles” from Sincerely Tommy and passes by it at least once per week when she is, “doing errands,” “looking to eat out,” and “visiting family and friends.” Dkt. No. 1 ¶ 6. Plaintiff alleges that she “dines at restaurants on [Sincerely Tommy's] street about once or twice per month,” and that it is located “in a neighborhood that Plaintiff dines out two to three times per month.” Id. Plaintiff adds that she has patronized nearly all of the neighboring restaurants in proximity to Sincerely Tommy. Id.

As in Kreisler, Plaintiff's allegations therefore support a reasonable inference that Plaintiff plans to return to Sincerely Tommy. See Kreisler, 731 F.3d at 188; Hashimi, 2024 WL 1006833, at *4 (finding that the third factor was satisfied where the plaintiff alleges that he “lives approximately 3 miles from [the Property], [and] passes by the [the Property] at least once per week when running errands, visiting family and friends, and eating out in this locale”; “he dines out ‘once or twice per week' in the restaurants neighboring the Property and approximately ‘once or twice per month' at restaurants on the same street as the Property”; and that “he would dine at the Defendant's restaurant and avail himself of the [Property's] goods and services.”) (internal citations omitted); Adams, 2023 WL 5279355, at *3 (finding the third standing requirement satisfied where Plaintiff “reside[d] less than six miles from the Facility, passes the Facility at least once per week, dine[d] in the neighborhood several times per month, and alleged that he plan[ned] to return to the Facility.”); cf. Dunston, 2023 WL 5806291, at *5 (“Indeed, Dunston's allegations are bare and boilerplate in that she fails to include even the most basic information about the Subject Property-for example, the type of business operated there, or the types of goods and services offered for purchase.”).

Accordingly, the Court respectfully recommends that Plaintiff be found to have established standing.

C. Personal Jurisdiction

“[B]efore a court grants a motion for default judgment, it may first assure itself that it has personal jurisdiction over the defendant.” Sinoying Logistics Pte Ltd. v. Yi Da Xin Trading Corp., 619 F.3d 207, 213 (2d Cir. 2010) (citation omitted); see also BASF Corp., 2023 WL 8853704, at *5 (“A court may not enter default judgment unless it has jurisdiction over the person of the party against whom the judgment is sought, which also means that he must have been effectively served with process.”) (internal quotations and citation omitted).

Here, the Court has personal jurisdiction over Defendant. First, Plaintiff properly served the Summons and Complaint on Defendant. Federal Rule of Civil Procedure 4(e)(1) permits a party to effect service in accordance with the rules of the state where the district is located or where service is made. Fed.R.Civ.P. 4 (e)(1).

Plaintiff properly served Defendant, a New York limited liability company, by delivering copies of the Summons and Complaint to the New York Secretary of State. See Dkt. No. 1; Dkt. No. 6; see also Fed.R.Civ.P. 4(h)(1)(A); N.Y. C.P.L.R. § 311-a (a); N.Y. Limit. Liab. Co. L. § 303(a)(1). New York law permits a party to effect service by delivering the summons and complaint to the New York Secretary of State as an agent of the company. N.Y. Limit. Liab. Co. L. § 303(a)(1). “[S]erving a summons . . . establishes personal jurisdiction over a defendant . . . who is subject to the jurisdiction of a court of general jurisdiction in the state where the district court is located.” Licci ex rel. Licci v. Lebanese Canadian Bank, SAL, 673 F.3d 50, 59 (2d Cir. 2012) (quoting Fed.R.Civ.P. 4(k)(1)(A)).

In the Complaint, Plaintiff alleges that Defendant“is a[n] LLC and transacts business in the State of New York and within this judicial district.” Dkt. No. 1 ¶ 4. This Court takes judicial notice of the New York State Secretary of State's website, which indicates that Defendant is a domestic limited liability company. See N.Y. Dep't of State, Div. of Corps., Corporation & Business Entity Database Search, https://apps.dos.ny.gov/publicInquiry/ (last visited December 19, 2024).

Second, New York State has general jurisdiction over its residents. See Brown v. Lockheed Martin Corp., 814 F.3d 619, 622 n.1 (2d Cir. 2016). As noted earlier, Defendant is a New York limited liability company. See Dkt. No. 1 ¶ 4. New York courts may exercise jurisdiction over New York limited liability companies doing business in the state. See Francis v. Ideal Masonry, Inc., No. 16-CV-2839 (NGG) (PK), 2018 WL 4292171, at *3 (E.D.N.Y. Aug. 3, 2018), report and recommendation adopted, 2018 WL 4288625 (E.D.N.Y. Sept. 7, 2018) (quoting Daimler AG v. Bauman, 134 S.Ct. 746, 760 (2014)); McLaughlin v. Onanafe Mgmt. Sols. LLC, No. 22-CV-6792 (PKC) (MMH), 2024 WL 4184485, at *4 (E.D.N.Y. Sept. 14, 2024) (explaining that the court has general jurisdiction over defendant-limited liability company because it is a New York limited liability company doing business in New York), report and recommendation adopted, 2024 WL 4355485 (E.D.N.Y. Sept. 30, 2024); see also N.Y. C.P.L.R. § 301.

Accordingly, Plaintiff satisfies the requirements for personal jurisdiction.

D. Venue

“[A] civil action may be brought in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of property that is the subject of the action is situate.” 28 U.S.C. § 1391(b)(2). Here, the events giving rise to the cause of action occurred at the premises that Defendant leases and operates in Brooklyn, New York (Dkt. No. 1 at ¶ 4, 10), and venue is therefore proper in this district.

IV. Procedural Compliance with Local Rules 7.1 and 55.2 5

“A motion for default judgment will not be granted unless the party making the motion adheres to all of the applicable procedural rules.” Annuity, Welfare & Apprenticeship Skill Improvement & Safety Funds of Int'l Union of Operating Engineers, Loc. 15, 15A, 15C & 15D, AFL-CIO v. Allstate Mapping & Layout, LLC, No. 22-CV-1831 (PKC) (TAM), 2023 WL 1475389, at *1 (E.D.N.Y. Feb. 2, 2023) (quoting Century Surety Company v. Adweek, No. 16-CV-335 (ENV) (PK), 2018 WL 10466835, at *1 (E.D.N.Y. Jan. 9, 2018)). “[L]ocal rules have the force of law, as long as they do not conflict with a rule prescribed by the Supreme Court, Congress, or the Constitution.” Fin. Servs. Vehicle Tr. v. Osmena, No. 22-CV-7491 (RPK) (CLP), 2023 WL 7000935, at *2 (E.D.N.Y. Aug. 15, 2023) (internal quotations and citation omitted).

The Local Rules of the United States District Court for the Southern and Eastern Districts of New York were updated on July 1, 2024. As set forth in Local Rule 1.1, “[t]hese Local Civil Rules take effect on July 1, 2024 [] and govern actions pending or filed on or after that date. For actions pending on the Effective Date, if fewer than 14 days remain to perform an action governed by these Rules, the provisions of the previous Local Rules effective on June 30, 2024 will govern.” Thus, given the timing of the filing of the motion for default judgment on October 1, 2024, the current Local Rules are applicable here.

A. Entry of Default

The Court recommends a finding that the Clerk of Court properly issued a certificate of default as to Defendant. Defendant was served on May 3, 2024. Dkt. No. 9; Text Order dated June 26, 2024. Defendant was required to answer, move, or otherwise respond to the Complaint by May 24, 2024. Dkt. No. 9; Text Order dated June 26, 2024; see also Fed.R.Civ.P. 12(a)(1)(A)(i). When Defendant failed to do so, and consistent with the Court's order, Plaintiff filed a request for an Entry of Default pursuant to Local Civil Rule 55.1. Dkt. No. 10; L. Civ. R. 55.1. The Clerk of Court entered default as to Defendant on July 3, 2024. Dkt. No. 11.

Accordingly, the Clerk's entry of a certificate of default as to Defendant was appropriate.

B. Local Civil Rule 7.1

Local Civil Rule 7.1 requires that a plaintiff attach to a motion for default (1) a notice of motion specifying the applicable rules or statutes pursuant to which the motion is brought, (2) a memorandum of law setting forth the cases and other authorities relied upon in support of the motion, and (3) supporting affidavits and exhibits containing any factual information and portions of the record necessary for the decision of the motion. See L. Civ. R. 7.1. Plaintiff complied with the procedural requirement enshrined in Local Civil Rule 7.1 by filing a notice of motion (Dkt. No. 12-1), a memorandum of law (Dkt. No. 13), and affidavits and exhibits (Dkt. Nos. 18-1, 182) in support of the motion.

C. Local Civil Rule 55.2

Additionally, Local Civil Rule 55.2(b) requires that a plaintiff attach to a motion for default judgment the Clerk's Certificate of Default, a copy of the complaint, and a proposed form of default judgment. L. Civ. R. 55.2(b). Local Civil Rule 55.2(c) also requires that all papers submitted in connection with a motion for a default judgment be mailed to the “last known business address” of non-individual defendants. L. Civ. R. 55.2(c).

Plaintiff complied with the procedural requirements of Local Civil Rule 55.2 by attaching to their application for default judgment (1) the Clerk's Certificate of Default (Dkt. No. 12-4); (2) a copy of the complaint (Dkt. No. 15-3); and (3) a proposed form of default judgment (Dkt. Nos. 15-2, 16). Plaintiff also mailed all papers to Defendant's last known business address. Dkt. Nos. 12-4, 17. In light of the above, the jurisdictional and procedural prerequisites to entry of a default judgment have been satisfied by Plaintiff.

Moreover, Defendant's failure to respond to the Complaint here was willful. The Court ordered Plaintiff to serve Defendant at its business address (343 Tomkins Avenue, Brooklyn, New York 11216) with a copy of its motion as well as the Court's October 19, 2024 order regarding the motion for default judgment. Notwithstanding the notice and service of both Plaintiff's motion and the Court's order described above, Defendant did not respond to the Complaint, did not appear, and have not in any way attempted to defend this action, thus constituting willfulness in the context of default judgment. See, e.g., Sola Franchise Corp. v. Solo Salon Studios Inc., No. 14-CV-946 (JS) (AKT), 2015 WL 1299259, at *6 (E.D.N.Y. Mar. 23, 2015) (“Defendant has not responded to Plaintiffs' motion for default judgment, has not appeared in this action, and has not communicated with the Court in any way. Accordingly, Defendant's failure to answer the Complaint and to respond to the instant motion is sufficient to establish willfulness.”).

Accordingly, the Court respectfully recommends that Plaintiff be found to have satisfied the jurisdictional requirements to proceed with her motion.

V. 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 or public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” 42 U.S.C. § 12182(a); Hashimi, 2024 WL 1006833, at *4.

“To establish a prima facie case of disability discrimination based on a failure to accommodate, a plaintiff must demonstrate (1) that they have a disability under the meaning of the ADA; (2) an employer covered by the statute had notice of that disability; (3) with reasonable accommodation, the plaintiff could perform the essential functions of the job at issue; and (4) the employer refused to make such accommodations.” Cayetano v. Fed. Express Corp., No. 19-CV-10619 (AT), 2022 WL 2467735, at *4 (S.D.N.Y. July 6, 2022) (citing McBride v. BIC Consumer Prod. Mfg. Co., 583 F.3d 92, 97 (2d Cir. 2009)); see also Adams, 2023 WL 5279355, at *4; Hashimi, 2024 WL 1006833, at *4; Gomez v. W. Shore Inn Rest., Inc., No. 22 CV 277 (EK) (CLP), 2023 WL 5337864, at *3 (E.D.N.Y. June 30, 2023), report and recommendation adopted, No. 22-CV-277 (EK) (CLP), 2023 WL 5334415 (E.D.N.Y. Aug. 18, 2023).

A. Disability

Plaintiff has adequately alleged that she has a disability within the meaning of the ADA. The ADA defines a statutorily protected disability to include “a physical or mental impairment that substantially limits one or more major life activities of such individual.” 42 U.S.C. § 12102(1)(A). Plaintiff alleges that her left leg was amputated in 2015 due to complications with a surgical procedure (Dkt. No. 1 ¶ 2), resulting in her needing to use a wheelchair to maneuver (id. at ¶ 8 (eluding to Plaintiff's use of a wheelchair)). The ADA's definition of “major life activities include[s] . . . walking.” 42 U.S.C. § 12102(2)(A); 29 C.F.R. 1630.2(i)(1)(i) (same). Therefore, Plaintiff is a statutorily protected person with a disability because the amputation of her left leg necessitating use of a wheelchair substantially limits the major life activity of walking. See Dkt. No. 1 ¶ 2; see also 42 U.S.C. § 12102(1)(A)-(2)(A); Volman v. Peri Peri 2 LLC, No. 21-CV-4449 (RPK) (RER), 2022 WL 21842356, at *4 (E.D.N.Y. Aug. 16, 2022) (“Since Plaintiff is bound to ambulate in a wheelchair and suffers from medical conditions that inhibit walking and restrict body motion, Plaintiff is clearly a disabled individual under the ADA.”) (internal quotation marks omitted); cf. Wenc v. New London Bd. of Educ., 702 Fed.Appx. 27, 29 (2d Cir. 2017) (noting that neither party in litigation disputed that the plaintiff, who was an amputee that used a leg prosthetic for mobility, was disabled).

The ADA provides three definitions for a statutorily protected disability: “(A) a physical or mental impairment that substantially limits one or more major life activities of [an] individual; (B) a record of such an impairment; or (C) being regarded as having such an impairment (as described in [42 U.S.C.A. § 12102(3)]).” 42 U.S.C. § 12102(1).

B. Public Accommodation

Plaintiff has adequately alleged that Defendant leased or operated a place of public accommodation. The ADA defines public accommodation to include “a restaurant, bar, or other establishment serving food or drink[.]” 42 U.S.C. § 12181(7)(B). Plaintiff alleges that Defendant “is the lessee and operator of the business known as Sincerely Tommy.” Dkt. No. 1 ¶ 4. Plaintiff adequately describes Sincerely Tommy as a “public accommodation,” “restaurant,” and “service establishment.” Id. at ¶¶ 5-7. Accordingly, Plaintiff's allegations are sufficient to establish that Sincerely Tommy is a place of public accommodation that Defendant leases and operates that must be compliant with the ADA. See Rouse v. Broadway & Cooper LLC, No. 23-CV-7849 (RER) (JAM), 2024 WL 4379070, at *11 (E.D.N.Y. Oct. 3, 2024) (finding similar allegations sufficient to establish a facility of public accommodation); Norman, 2024 WL 488181, at * (finding restaurant that was owned or operated by defaulting defendant a public accommodation in violation of the ADA); Volman, 2022 WL 21842356, at *4 (same).

C. Discrimination

Plaintiff has adequately alleged that she has been discriminated against within the meaning of the ADA. The ADA defines discrimination to include “a failure to remove architectural barriers . . . that are structural in nature, in existing facilities . . . where such removal is readily achievable.” 42 U.S.C. § 12182(b)(2)(A)(iv). The ADA defines “readily achievable” as “easily accomplishable and able to be carried out without much difficulty or expense.” 42 U.S.C. § 12181(9). Further, “[a] plaintiff can establish discrimination in violation of the ADA by showing that the defendant violated the applicable accessibility standards set forth in the [ADAAG].” Hashimi, 2024 WL 1006833 (quoting Dunston v. Spice of India Inc., No. 20-CV-493 (PKC) (VMS), 2022 WL 994502, at *5 (E.D.N.Y. Feb. 14, 2022)); Adams, 2023 WL 5279355, at *4 (quoting Hashimi, 2021 WL 3478174 at *3); Harti v. Spring Valley Marketplace LLC, No. 15-CV-8190 (NSR), 2017 WL 108062, at *5 (S.D.N.Y. Jan. 9, 2017).

Here, Plaintiff properly alleges that she had difficulty accessing Sincerely Tommy due to several physical barriers in violation of the guidelines set forth in the ADAAG, including steps at the front entrance that did not include a ramp, inaccessible interior and exterior dining tables and dining counter, and inaccessible components of the restroom. Dkt. No. 1 ¶ 14 (citing various applicable sections of the ADAAG, including §§ 206 (Accessible Entrances), 207 (Accessible Means of Egress), 226 (Dining Surfaces and Work Surfaces), 402 (Accessible Routes), 403 (Walking Surfaces), 404 (Doors, Doorways and Gates), 603 (Toilet and Bathing Rooms), and 902 (dining surfaces and work surfaces)).

Plaintiff also alleges that “the removal of the physical barriers . . . is readily achievable and can be carried out without much difficulty or expense.” Dkt. No. 1 ¶ 16; see also Adams, 2023 WL 5279355, at *4 (citing Hashimi, 2021 WL 3478174, at *3 (finding plaintiff established discrimination where complaint stated, and court accepted as true, that removal of architectural barriers was “readily achievable and would not impose an undue hardship on defendant”).

Plaintiff has adequately alleged Defendant's failure to remove multiple ADAAG architectural barriers and that “the removal of [those] physical barriers . . . can be accomplished and carried out without much difficulty or expense.” Dkt. No. 1 ¶ 16; 42 U.S.C. §§ 12182(B)(2)(A)(iv), 12181(9); 28 C.F.R. § 36.304.

Therefore, because Defendant's default “constitutes a concession of all well-pleaded allegations concerning liability” Chavez, 2021 WL 982865, at *5, this Court respectfully recommends that Defendant be found liable, pursuant to 42 U.S.C. § 12182(b)(2)(A)(iv), for violating of the ADA and thus discriminating against Plaintiff for purposes of default judgment.

VI. Damages

A. Injunctive Relief

“Title III of the ADA allows only for injunctive relief, not monetary damages.” Brown, 2018 WL 2722454 at *5. “Conjunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities.” 42 U.S.C. § 12188(a)(2). “[T]he often-used method in this district for awarding injunctive relief in ADA cases is to require defendants to submit a compliance plan within a prescribed period of time.” Grinblat v. Apna Food & Oil Corp., No. 19-CV-6746 (EK) (LB), 2020 WL 7481508, at *6 (E.D.N.Y. Aug. 26, 2020), report and recommendation adopted, 2020 WL 7481327 (E.D.N.Y. Dec. 18, 2020).

Plaintiff is “not seeking damages” here. Dkt. No. 13 at 4. Instead, Plaintiff seeks injunctive relief and requests that Defendant submit to “Plaintiff's counsel an architectural plan that remedies” the existing ADA violations at Sincerely Tommy within 90 days after the entry of default judgment. Dkt. No. 13 at 9; Dkt. No. 12 at 12; see also Dkt. No. 1 at ¶ 19. Plaintiff also seeks 30 days from receipt of Defendant's architectural plan to consent or to seek further relief from the Court. Dkt. No. 13 at 9. Further, Plaintiff requests that Defendant make the necessary alterations within 60 days of Plaintiff's consent or any ruling on Plaintiffs request for further relief from the Court. Id.

Plaintiff adds that although “the [New York State Human Rights Law] provides for monetary compensation, Plaintiff is not seeking monetary relief from the damages,” but rather only injunctive relief under the ADA. Dkt. No. 12 at 4.

The aforementioned requests for injunctive relief are reasonable under the circumstances. 42 U.S.C. § 12188 (a)(2) (“In the case of violations [under the relevant sections of the ADA], injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities to the extent required by this subchapter”); Kreisler, 731 F.3d at 188-89 (“The ADA's remedial scheme is not limited to orders for the removal of encountered barriers, but instead dictates that injunctive relief shall include an order to alter facilities to make such facilities readily accessible to and usable by individuals with disabilities” (internal quotations and citations omitted)); Adams, 2023 WL 5279355, at *5 (“As Plaintiff's allegations are deemed true in light of Defendants' default, Defendants are liable pursuant to 42 U.S.C. § 12182(b)(2)(A)(iv) and renovations to bring the Facility into compliance with the ADA are readily achievable.”); Rouse, 2024 WL 4379070, at *12 (finding same); Ross v. Royal Pizza Cafe Corp., No. 17-CV-6294 (FB) (RML), 2018 WL 6313208, at *4 (E.D.N.Y. Aug. 1, 2018) (same), report and recommendation adopted, 2018 WL 6313182 (E.D.N.Y. Dec. 3, 2018); O'Rourke v. Drunken Chicken in NY Corp., No. 19-CV-3942 (NGG) (SMG), 2020 WL 4013187, at *5 (E.D.N.Y. July 16, 2020) (same).

Plaintiff also requests that Sincerely Tommy be closed pending the completion of the necessary structural alterations. Dkt. No. 1 at 15; Dkt. No. 12 at 3; Dkt. No. 13 at 7. Such a request, however, is unreasonable given the current record. The time required to implement the necessary alterations to Sincerely Tommy is unknown, and closing the facility could deprive Defendant of the financial resources needed to carry out the necessary structural alterations discussed above. See Adams, 2023 WL 5279355, at *5 (“this Court recommends that Plaintiff's request to close the Facility be denied because it is uncertain how long the remediation would take and closing the Facility in the interim would not necessarily advance Plaintiffs goal of making the premises accessible to people with disabilities”) (citing O'Rourke, 2020 WL 4013187, at *4 (denying plaintiffs request to close a restaurant until barriers were remedied when they did not indicate how long modifications would take or why they could not be made while the restaurant remained open); Taylor v. 312 Grand St. LLC, No. 15-CV-5410 (BMC), 2016 WL 1122027, at *4 (E.D.N.Y. Mar. 22, 2016) (declining to close a bar while architectural barriers were remedied because “shutting down . . . [the] business is not going to get plaintiff or other disabled persons access”)); Rouse, 2024 WL 4379070, at *12 (denying request to close non-compliant restaurant due to potential to financially deprive the defendant). In short, closing Sincerely Tommy is more likely to delay the removal of its barriers to access than to further Plaintiff's desire to bring Sincerely Tommy within ADA compliance, as closure would likely deprive Defendant of the funds necessary to implement the remediation.

Accordingly, the Court respectfully recommends the issuance of an injunction which should require Defendant to submit an ADA-compliance plan. See Hashimi, 2024 WL 1006833, at *6 (“[T]he often-used method in this district for awarding injunctive relief in ADA cases is to require defendants to submit a compliance plan with a prescribed period of time.”) (quoting Grinblat, 2020 WL 7481508, at *6); see also Dunston, 2022 WL 994502, at *6). The recommended injunction should: (1) enjoin Defendant from continuing its discriminatory practices; (2) require Defendant to prepare architectural plans remedying the violations described in the Complaint and to provide Plaintiff's counsel with those plans for review within 90 days of any order adopting this Report and Recommendation; (3) require Plaintiff to consent to or seek further relief from the Court regarding such plans within 30 days of receipt; and (4) require Defendant to complete the necessary alterations within 60 days after Plaintiff consents to the alterations or an order is granted on Plaintiff's request for further relief. Adams, 2023 WL 5279355, at *5 (recommending similar injunctive relief); Rouse, 2024 WL 4379070, at *12 (same); Ross, 2018 WL 6313208, at *4 (E.D.N.Y. Aug. 1, 2018) (same), O'Rourke, 2020 WL 4013187, at *5 (same). As noted above, however, this Court respectfully recommends denying Plaintiff's request to close Sincerely Tommy pending the completion of structural alterations.

B. Attorney's Fees

“A prevailing plaintiff in an ADA case is entitled to recover reasonable attorneys' fees and costs.” Dunston, 2022 WL 994502, at *6 (citing 42 U.S.C. § 12205). Plaintiff requests 180 days after the entry of a default judgment to make such a motion. See Dkt. No. 13 at 9. “The request to submit a motion for attorneys' fees and costs six months after entry of a default judgment is reasonable here, as courts in this District prefer to evaluate such motions after the attorney can demonstrate reasonable efforts to enforce the injunction.” Id. (citations omitted); see also Adams, 2023 WL 5279355, at *3 (same); Grinblat v. Apna Food & Oil Corp., No. 19-CV-6746 (EK) (LB), 2020 WL 7481508, at *7 (E.D.N.Y. Aug. 26, 2020), report and recommendation adopted, 2020 WL 7481327 (E.D.N.Y. Dec. 18, 2020).

Accordingly, should this report and recommendation be adopted, the undersigned respectfully recommends that Plaintiff be given 180 days after the entry of a default judgment to make a full motion for attorneys' fees and costs.

VII. Conclusion

In sum, the Court finds that Plaintiff sufficiently alleges Defendant's violations of the ADA. Accordingly, the Court respectfully recommends that Plaintiff's motion for default judgment be granted in part and denied in part. The Court respectfully recommends that an injunction be issued enjoining Defendant from continuing its discriminatory practices; to wit, Defendants should be ordered to: (i) prepare architectural plans remedying the violations identified by Plaintiff and to (ii) provide Plaintiff's counsel with those plans for review within 90 days after the entry of default judgment. Plaintiff should then be granted 30 days from receipt of Defendant's architectural plans to consent or to seek further relief from the Court. Defendant should, in turn, be permitted to complete the necessary alterations within 60 days after either (i) Plaintiff consents to the architectural plans or (ii) any ruling on Plaintiff's request for further relief. Finally, Plaintiff should be granted 180 days after the entry of a default judgment to move for attorney's fees and costs.

A copy of this Report and Recommendation is being electronically served on counsel. This Court directs Plaintiff's counsel to serve a copy of this Report and Recommendation by overnight mail and first-class mail to Defendant and to file proof of service on ECF by December 20, 2024.

Copies shall be served at the following address:

St Cafe LLC
343 Tompkins Ave,
Brooklyn, NY 11216

Any objections to this Report and Recommendation must be filed within 14 days after service of this Report and Recommendation. See 28 U.S.C. § 636(b)(1); Fed.R.Civ.P. 72(b)(2). See also Fed.R.Civ.P. 6(a) & (d) (addressing computation of days). Any requests for an extension of time for filing objections must be directed to Judge Merchant. Failure to file objections within this period designating the particular issues to be reviewed waives the right to appeal the district court's order. See 28 U.S.C. § 636(b); Fed.R.Civ.P. 72(b)(2); Wagner & Wagner, LLP v. Atkinson, Haskins, Nellis, Brittingham, Gladd & Carwile, P.C., 596 F.3d 84, 92 (2d Cir. 2010); Kotlyarsky v. United States Dep't of Just., No. 22-2750, 2023 WL 7648618 (2d Cir. 2023); see also Thomas v. Arn, 474 U.S. 140 (1985).

SO ORDERED.


Summaries of

Dunston v. Babushka LLC

United States District Court, E.D. New York
Dec 19, 2024
No. 24-CV-2969 (E.D.N.Y. Dec. 19, 2024)
Case details for

Dunston v. Babushka LLC

Case Details

Full title:NATOSHA DUNSTON, Plaintiff, v. BABUSHKA LLC, and ST CAFE LLC, Defendants.

Court:United States District Court, E.D. New York

Date published: Dec 19, 2024

Citations

No. 24-CV-2969 (E.D.N.Y. Dec. 19, 2024)