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noting that the customary rate was $350 to $375 for experienced litigators representing clients in ADA matters five to eight years prior to this case, but awarding a $400 hourly rate to account for "ordinary inflation"
Summary of this case from Indep. Project, Inc. v. Ventresca Bros. Constr. Co.Opinion
No. 10 Civ. 7592 (RJS)
08-01-2013
TODD KREISLER, Plaintiff, v. SECOND AVENUE DINER CORP., et al., Defendants.
Plaintiff Todd Kreisler is represented by Adam T. Shore, of the Law Offices of Adam Shore, 100 Park Avenue, Suite 1600, New York, New York 10017, and Ben-Zion Bradley Weitz, of the Weitz Law Firm, P.A., 18305 Biscayne Boulevard, Aventura, Florida 33160. Defendants Second Avenue Diner Corp. and J.J.N.K. Corp. are represented by Paul Stamatelatos, Esq., 36-19 Broadway, 2nd Floor, Astoria, New York 11106.
MEMORANDUM AND ORDER :
Todd Kreisler ("Plaintiff") brings this action against the Second Avenue Diner Corp. - parent of a restaurant by the same name (the "Diner") - and J.J.N.K Corp. (collectively, "Defendants"), alleging thirteen violations of Title III of the Americans With Disabilities Act ("ADA"), 42 U.S.C. § 12181 et seq.; the New York City Human Rights Law, ("NYCHRL"), N.Y.C. Admin. Code § 8-107(4)(a); and the New York State Human Rights Law ("NYSHRL"), N.Y. Exec. L. § 296(2)(a). Following a bench trial, the Court found Defendants liable for four violations and ordered them to make various modifications to the Diner's interior and exterior. The Court also awarded Plaintiff $1,000 in damages, as well as attorneys' fees and costs. Now before the Court is (1) Plaintiff's motion for attorneys' fees and costs and (2) Defendants' motion for a stay pending appeal. For the reasons set forth below, the Court awards Plaintiff $60,417.05 in attorneys' fees and costs and denies Defendants' motion for a stay pending appeal.
I. BACKGROUND
Plaintiff commenced this action on October 4, 2010, alleging that Defendants violated the ADA, NYCHRL, and NYSHRL by operating the Diner in a manner that is inaccessible to individuals who use wheelchairs. Plaintiff identified numerous barriers to access, including a step at the Diner's entrance, a vestibule and seating area that are difficult to maneuver, inadequate signage, and a non-ADA-compliant bathroom. (Doc. No. 1 ¶ 13.) Plaintiff sought injunctive relief to remove those alleged barriers, as well as attorneys' fees and compensatory damages. On October 5, 2011, the Court denied Defendants' motion for summary judgment (Doc. No. 39), and on October 11, 2011, the case proceeded to a two-day bench trial. The Court issued its opinion on September 11, 2012. See Kreisler v. Second Ave. Diner Corp., No. 10 Civ. 7592 (RJS), 2012 WL 3961304 (S.D.N.Y. Sept. 11, 2012). On October 9, 2012, Plaintiff filed a motion for fees and costs associated with the litigation (Doc. No. 54). On November 9, 2012, Defendants filed an opposition (Doc. No. 60), and Plaintiff filed a reply on November 15, 2012 (Doc. No. 63). Defendants filed a separate motion for a stay pending appeal on October 11, 2012. (Doc. No. 58.) That motion is unopposed.
II. FEES AND COSTS
Plaintiff moves for attorneys' fees and costs from the litigation pursuant to the ADA and NYCHRL. (Fee Mem. 5.) Both statutes permit courts to award prevailing plaintiffs reasonable attorneys' fees and costs. See 42 U.S.C. § 12205; N.Y.C. Admin. Code § 8-502(f). Courts apply the same standard under both statutes to determine a reasonable award for a prevailing party's fees and costs. See Hugee v. Kimso LLC, 852 F. Supp. 2d 281, 297 (E.D.N.Y. 2012).
In deciding Plaintiff's motion for fees and costs, the Court has considered Plaintiff's memorandum of law in support of the motion ("Fee Mem."), Defendants' memorandum of law in opposition ("Opp'n"), Plaintiff's reply ("Reply"), and the declarations and exhibits attached thereto.
A. Legal Standard
The Second Circuit has articulated the method for determining reasonable attorneys' fees in Arbor Hill Concerned Citizens Neighborhood Ass'n. v. Cnty. of Albany, 522 F.3d 182 (2d Cir. 2008). Under this approach, the Court must first set forth a "reasonable hourly rate" for each attorney and staff member, keeping in mind all case-specific variables. Id. at 190. Second, the Court must determine the number of hours reasonably expended. Id. Third, the Court must multiply the reasonable hourly rate by the number of hours reasonably expended to determine the presumptively reasonable fee. See Hensley v. Eckerhart, 461 U.S. 424, 433 (1983); Margolies v. Cnty. of Putnum N.Y., No. 09 Civ. 2061 (RKE) (GAY), 2011 WL 721698, at *1 (S.D.N.Y. Feb. 23, 2011). The product of these two figures is known as the "lodestar." See, e.g., LeBlanc-Sternberg v. Fletcher, 143 F.3d 748, 763-64 (2d Cir. 1998). Though this Circuit maintains a strong presumption that the lodestar is reasonable, a court may adjust this amount for a variety of reasons. See Quaratino v. Tiffany & Co., 166 F.3d 422, 425 (2d Cir. 1999). For example, a court may reduce the amount if a party does not prevail on all the claims it initially brought. Hensley, 461 U.S. at 433. "The Second Circuit has stated that the 'most important factor in determining the reasonableness of a fee is the degree of success obtained.'" Weingarten v. Optima Commc'ns Sys., Inc., 544 F. Supp. 2d 193, 196 (S.D.N.Y. 2008) (quoting Pino v. Locascio, 101 F.3d 235, 237 (2d Cir. 1996)).
The burden is on the party seeking attorneys' fees to establish entitlement to an award and to submit sufficient evidence to support the hours worked and the rates claimed. See, e.g., Hensley, 461 U.S. at 437. Accordingly, "[t]he applicant should exercise billing judgment with respect to hours worked . . . and should maintain billing time records in a manner that will enable a reviewing court to identify distinct claims." Id.
Pursuant to Federal Rule of Civil Procedure 54(d)(1), a prevailing party is also entitled to taxable costs. The term "costs," as used in Rule 54, is defined in 28 U.S.C. § 1920 and Local Rule 54.1 as including the costs of transcripts, depositions, witness fees, printing, copying, and the like. Moreover, where statutes provide for the shifting of attorneys' fees, awards may "include those reasonable out-of-pocket expenses incurred by attorneys and ordinarily charged to their clients." Amaprop Ltd. v. Indiabulls Fin. Servs. Ltd., No. 10 Civ. 1853 (PGG), 2011 WL 1002439, at *9 (S.D.N.Y. Mar. 16, 2011). In ADA litigation, a court may award legal costs to a prevailing party including costs for experts. See 42 U.S.C. § 12205; Access 4 All, Inc. v. Park Lane Hotel, Inc., No. 04 Civ. 7174 (SAS), 2005 WL 3338555, at *5 (S.D.NY. Dec. 7, 2005).
B. Discussion
1. Fees
Plaintiff proposes a lodestar amount of $86,742.50 based on an hourly rate of $425 and 204.1 hours worked. (Fee Mem. 6, Ex. A.) The Court first assesses whether the hourly rate and hours worked are reasonable and then considers whether reductions to the lodestar amount are warranted.
a. Reasonable Hourly Rate
A reasonable hourly rate is the rate a paying client would be willing to pay. Arbor Hill, 522 F.3d at 190. To determine this rate, the Second Circuit has directed courts to look to the twelve factors identified by the Fifth Circuit in Johnson v. Georgia Highway Express Inc., 488 F.2d 714 (5th Cir. 1974). These include, inter alia, the time and labor required; the level of skill necessary to perform the legal service properly; the attorneys' customary hourly rates; whether the fee is fixed or contingent; the amount of money involved in the case; the results obtained; and the experience, reputation, and ability of the attorneys. See Arbor Hill, 522 F.3d at 190. A court should also "bear in mind that a reasonable, paying client wishes to spend the minimum necessary to litigate the case effectively." Id. In evaluating these factors, a court may rely on "its own knowledge of comparable rates charged by lawyers in the district." Morris v. Eversley, 343 F. Supp. 2d 234, 245 (S.D.N.Y. 2004).
In the Southern District of New York, the customary rate for experienced litigators representing clients in ADA matters ranges from $350 to $375 per hour. See Spalluto v. Trump Int'l Hotel & Tower, No. 04 Civ. 7497 (RJS) (HBP), 2008 WL 4525372, at *13 (S.D.N.Y. Oct. 2, 2008) (awarding $375 per hour); Access 4 All, Inc. v. Hi 57 Hotel LLC, No. 04 Civ. 6620 (GBD), 2006 WL 196969, at *3 (S.D.N.Y. Jan. 26, 2006) (awarding $350 per hour); Park Lane Hotel, 2005 WL 3338555, at *5 (awarding $350 per hour). Indeed, in each of the foregoing cases, as in the instant case, the fee applicant was an experienced litigator seeking $425 per hour. However, courts in this Circuit are to use current rather than historic figures. See Farbotko v. Clinton Co., 433 F.3d 204, 210 n.11 (2d Cir. 2005). Accordingly, because the cases cited were decided five to eight years ago, the Court finds that, in light of ordinary inflation, an hourly rate of $400 is reasonable.
Plaintiff cites two additional cases where courts awarded rates above this range, but neither case involves an analogous ADA claim. See Allende v. Unitech Design, Inc., 783 F. Supp. 2d 509 (S.D.N.Y. 2011); Topp. Inc. v. Uniden Am. Corp., No. 05 Civ. 21698 (AMS), 2007 WL 2155604 (S.D. Fla. July 25, 2007).
b. Hours Reasonably Expended
The Court must next determine the number of hours reasonably expended by Plaintiff's counsel. In reviewing the submitted billing sheet for reasonableness, a court relies on its own familiarity with the case, as well as its experience with the parties' evidentiary submissions and arguments. See Lucky Brand Dungarees Inc. v. Ally Apparel Res., LLC, No. 05 Civ. 6757 (LTS) (MHD), 2009 WL 466136, at *1 (S.D.N.Y. Feb. 25, 2009). A court has discretion to impose an across-the-board reduction if an attorney has billed excessive, redundant, or unnecessary hours. See N.Y. Ass'n for Retarded Children v. Carey, 711 F.2d 1136, 1146 (2d Cir. 1983); see also Robinson v. City of New York, No. 05 Civ. 9545 (GEL), 2009 WL 3109846, at *5 (S.D.N.Y. Sept. 29, 2009). Additionally, a court has discretion to impose an across-the-board reduction for vague billing entries that prevent the court from determining if the hours billed were excessive. See Katzenberg v. Lazzari, No. 04 Civ. 5100 (CBA), 2007 WL 2973586, at *9-10 (E.D.N.Y. Oct. 9, 2007) (reducing fee award by 50% for vague time entries); see also Mr. X v. N.Y. State Educ. Dep't, 20 F. Supp. 2d 561, 564 (S.D.N.Y. 1998) (reducing fee award by 20% to account for vague and duplicative time entries).
Here, Defendants argue that Plaintiff billed excessively and provided vague time entries. They identify several specific examples of excess, such as 14.3 hours spent preparing an opposition to Defendants' summary judgment motion, 24.9 hours spent preparing for a two-day trial, and 18.9 hours spent preparing a written closing argument. (Opp'n 6.) The Court, however, does not find that Plaintiff billed excessively for these tasks, which were crucial to ensuring that Plaintiff prevailed at trial. See Pastre v. Weber, 800 F. Supp. 1120, 1126 (S.D.N.Y. 1991) (crediting attorneys for ninety-nine hours of trial preparation for a two-day trial); Spalluto, 2008 WL 4525372, at *7 (finding that eighteen hours spent drafting an opposition to a dispositive motion and preparing for oral argument was reasonable). Thus, the Court does not impose an across-the-board reduction for excessive billing.
Defendants also argue that several entries in Plaintiff's billing records are vague and inconsistent. (Opp'n 7-8.) For at least some of these entries, the Court disagrees and finds that it can infer the necessary detail from the surrounding entries. For example, the "[p]hone conversation with Plaintiff regarding the case" took place on February 14, 2011, just three days before counsel had a February 17 "[p]hone conversation with [P]laintiff in preparation for [a] court conference" the following day. (Fee Mem. Ex. A.) Thus, the Court infers that, like the February 17 call, the February 14 call was in preparation for the February 18 conference.
Several other allegedly vague entries involved phone conversations with opposing counsel. (Opp'n 8.) Though these entries are in some instances vague, they are dated and involved Defendants. Consequently, Defendants should know what topics were discussed on these calls. Furthermore, Defendants neither challenge the fact of these calls nor the lengths Plaintiff recorded for them. Finally, several of the entries that Defendants highlight are not, in fact, vague. For example, Defendants highlight a 1.2 hour charge for "[r]esearch of owner of company, including letter to New York State Department of State requesting name of corporation doing business at 1066 2nd Avenue." (Opp'n 7.) Plaintiff was clearly attempting to determine which corporation owned the property in question. Consequently, the Court finds that Plaintiff's time entries were not improperly vague.
Accordingly, in calculating the lodestar amount, the Court finds that Plaintiff's application for 204.1 hours is reasonable. At a $400 hourly rate, the Court calculates the lodestar amount as $81,640.
c. Lodestar Reductions
Of course, calculating the lodestar amount does not end a court's analysis of a fee application. Kirsch v. Fleet St., Ltd., 148 F.3d 149, 173 (2d Cir. 1998). "[O]ther considerations may lead to an upward or downward departure from the lodestar." Grant v. Martinez, 973 F.2d 96, 101 (2d Cir. 1992). Here, the Court reduces the lodestar amount because Plaintiff (1) did not prevail on all of its initial claims and (2) billed travel time at the full hourly rate.
To receive attorneys' fees, a party must be the prevailing party. To be the prevailing party, a party must achieve some alteration of the legal relationship between parties and the Court must sanction the change. Robertson v. Giuliani, 346 F.3d 75, 79 (2d Cir. 2003); see Tex. State Teachers Ass'n v. Garland Indep. Sch. Dist., 489 U.S. 782, 791-92 (1989) (holding that a party may obtain a fee award as long as the party has succeeded on a significant issue in the litigation). Here, Plaintiff was the prevailing party because the Court ordered Defendants to make modifications to the Diner.
Even if a party has prevailed, however, a court may reduce that party's overall hours if the party did not prevail on all of its claims. A court may sever hours spent on unsuccessful and unrelated claims, Hensley, 461 U.S. at 433-35, or apply an across-the-board time reduction, see Gierlinger v. Gleason, 160 F.3d 858, 877 (2d Cir. 1998). Of these two options, severance is clearly the more surgical, and therefore preferable, approach. It is only possible, however, when claims are in fact severable; thus, a court may still award fees for "work done in connection with an unsuccessful claim" that was "intertwined" with a successful one. Gleason, 160 F.3d at 877; see also Reed v. A.W. Lawrence & Co., 95 F.3d 1170, 1183 (2d Cir. 1996) (holding that a court may award fees for unsuccessful claims that "involve a common core of facts or [are] based on related legal theories"). Here, the unsuccessful and successful claims were "intertwined" and hard to separate out on an hourly basis. Plaintiff brought all the claims pursuant to the ADA and NYCHRL and so utilized the same legal theories for both the successful and unsuccessful claims. See Hensley, 461 U.S. at 433-35 (holding that unrelated claims are often based on different legal theories and facts). The key difference between the successful and unsuccessful claims turned on the nature of the modifications sought and whether they were "readily achievable" as that term is defined by law. For the most part, such distinctions are not discernible from the record. Accordingly, the Court cannot surgically sever the hours that Plaintiff spent on these unsuccessful claims.
Nevertheless, because Plaintiff did not prevail on all of his initial claims, including the most costly ones, the Court finds that it is appropriate to impose an across-the-board reduction of 30%. Hensley, 461 U.S. at 434. In calculating a reduction, a court need not take a strict proportionality approach. Rivera v. Dyett, No. 88 Civ. 4707 (PKL), 1993 WL 36159, at *4 (S.D.N.Y. Feb. 10, 1993) (refusing a defendant's request that the fee award be reduced by two-thirds because the plaintiff was successful on only one of three claims). Rather, the quantity and quality of relief obtained is the critical factor in determining the reasonableness of a fee award in civil rights actions. Carroll v. Blinken, 105 F.3d 79, 81 (2d Cir. 1997); see Spalluto, 2008 WL 4525372, at *16 (reducing lodestar hours by 20% because the plaintiff achieved only partial success in having the defendant hotel make modifications); Levy v. Powell, No. 00 Civ. 4499 (SJF), 2005 WL 1719972, at *12 (E.D.N.Y. July 22, 2005) (reducing lodestar hours by 25% because the plaintiff was successful only on one of three claims).
Defendants urge the Court to impose a 50% across-the-board reduction to the lodestar amount. (Opp'n 9.) The Court rejects that contention and notes that the "quantity and quality of relief" in the case at bar are somewhat analogous to that obtained in Spalluto. In that case, the plaintiff sought injunctive relief for thirty-four violations. 2008 WL 4525372, at *16. After the defendant successfully moved for summary judgment on the majority of the claims, the parties signed a consent decree that required the defendant to modify eight hotel rooms to make them accessible. This decree was a significant but not "complete success" for the plaintiff. Id. The Court also noted that the consent decree provided benefits not only to the plaintiff but also to "all disabled who visit the [defendant's h]otel in the future." Id. Accordingly, the Court imposed a 20% across-the-board reduction.
In the instant case, Plaintiff's success likewise was not "complete." Defendants must make two notable modifications to the property: renovations to the bathroom and building a permanent entrance ramp. See Kreisler, 2012 WL 3961304, at *9, 12-13. These mandated modifications benefit Plaintiff and also ensure that other physically disabled individuals will be able to eat at the Diner. At the same time, Plaintiff requested, but the Court denied, costly modifications to Defendants' vestibule, aisle, counter, and seating areas, as well as an expansion to the bathroom. Id. at *9-11. Based on the costs of the modifications ordered, the success Plaintiff achieved here is slightly less than that realized by the plaintiff in Spalluto. By contrast, the costs of modifying the Diner's vestibule, aisle, counter, and seating areas as well as expanding the bathroom, would have far exceeded the costs Defendants now face in making modifications to the bathroom and building a permanent entrance ramp. Based on this mixed verdict, the Court concludes that a 30% across-the-board reduction is warranted. Accordingly, the Court credits Plaintiff for working a total of 142.87 hours in relation to the trial.
d. Travel Time
Plaintiff's counsel concedes that they failed to separate out travel time from the other hours expended on the litigation. (Reply ¶¶ 3-6.) Courts in this Circuit have held that attorneys should be compensated at 50% of their rate for travel time "because of the lack of productivity that results when an attorney travels to appointments." Colbert v. Furumoto Realty Inc., 144 F. Supp. 2d 251, 261 (S.D.N.Y. 2001); see also In re PaineWebber Ltd. P'ships Litig., No. 94 Civ. 8547 (SHS), 2003 WL 21787410, at *4 (S.D.N.Y. Aug. 4, 2003) ("[W]hen determining attorney's fees, courts in the Southern District of New York generally do not credit travel time at the attorney's full hourly rate and customarily reduce the amount awarded for travel to at least 50% of that rate."); (Reply ¶ 5 (conceding that counsel should receive only 50% of the regular rate for travel time).) Thus, Plaintiff's counsel should receive an hourly rate of $200 for travel time.
Because Plaintiff failed to record travel time separately, the Court must estimate that figure. The Court assumes that Plaintiff's counsel traveled to and from all in-person client meetings, in-person meetings with Defense counsel, the parties' depositions, and meetings at the Courthouse. Based on the parties' records of meetings, which are undisputed, the Court estimates that Plaintiff's counsel expended 15 hours travelling. (See Decl. of Paul Stamatelatos, dated Nov. 9, 2011, Doc. No. 61, ¶ 3.) Because some of that travel - for example, for Court conferences and the depositions - was necessary irrespective of the number of claims Plaintiff brought, the Court does not impose the 30% across-the-board reduction to the sum total of travel time. Rather, it imposes the reduction only for travel to those meetings that likely were affected by the wide scope of Plaintiff's claims, such as meetings with Plaintiff and opposing counsel. Accordingly, the Court finds that Plaintiff's counsel expended 12 hours travelling, justifying an award of $2,400, and worked 130.87 non-travel hours, justifying an award of $52,348.
The Court devised these estimates by comparing the numbers of hours the Plaintiff billed for each contested meeting against the number of hours the Defendants listed in the Opposition. The Court assumed that the difference in hours represented travel time. Based on that assumption, the Court found the following average travel times: Plaintiff's attorneys spent on average one hour travelling roundtrip for each meeting with the client, one hour roundtrip for each meeting at the Courthouse, two hours roundtrip for the April 9, 2011 meeting with defense counsel, and three hours travelling roundtrip for the June 30, 2011 deposition. Since it is Plaintiff's burden to establish the number of hours worked, the Court has drawn all reasonable inferences in favor of Defendants' with respect to travel time.
e. Reply Memorandum
In his Reply Memorandum, Plaintiff also requests that the Court allow him to file a supplemental motion for attorneys' fees associated with the Reply Memorandum. (Reply ¶ 18.) Plaintiff does not, however, list the amount of time spent on the Memorandum. (Id.) A court may award attorneys' fees associated with fee applications, including reply memoranda. See Gagne v. Maher, 594 F.2d 336, 343-44 (2d Cir. 1979); Greenbaum v. Svenska Handelsbanken, N.Y., 998 F. Supp. 301, 305 (S.D.N.Y. 1998). For the Court now to allow Plaintiff to file a supplemental motion would only invite an additional round of briefing and potentially impose unnecessary work and costs on Defendants. Given the relative ease of writing a reply, the Court estimates that Plaintiff's counsel drafted the Reply in one-third of the time they spent writing the initial memorandum. Thus, the Court estimates that counsel spent approximately two hours writing the Reply and awards Plaintiff $800 for this work.
To the extent that Plaintiff's counsel expended less time on the Reply, Plaintiff is directed to advise the Court of the hours actually expended on the Reply.
f. Appellate Fees
After Plaintiff filed its motion for attorneys' fees and costs, Defendants appealed the Court's judgment to the Second Circuit. Accordingly, Plaintiff now requests leave to file a supplemental motion for fees associated with the appeal. (Reply ¶ 18.) A party prevailing on appeal may apply to the district court for attorneys' fees associated with the appeal. See Litton Sys. Inc. v. Am. Tel. & Tel. Co., 613 F. Supp. 824, 827 n.1 (S.D.N.Y. 1985) ("[A] successful litigant does not apply directly to the appellate courts to recover costs and attorney's fees incurred on appeal, but instead applies to the district court.") Because Plaintiff lacked notice of the appeal when he filed the instant motion, the Court grants him leave to file a supplemental motion for appellate fees if he prevails on appeal.
2. Legal Costs and Expenses
Plaintiff next seeks $5,919.05 in reimbursement for legal costs and expenses, including costs associated with meeting twice with a CPA to review Defendants' tax returns. (Fee Mem. 10-11, Ex. A.) Defendants contend that the Court should deny reimbursement of the CPA costs - which equal $1,050 - because the consultation was unnecessary. (Opp'n 9.) Having carefully scrutinized Plaintiff's papers, the Court finds that Plaintiff has failed to justify that consultation, and the Court cannot determine why the consultation was necessary. Thus, the Court denies Plaintiff's request for $1,050 in reimbursement for these two meetings. The Court nevertheless awards the remaining $4,869.05 in legal costs and expenses, which Defendants do not oppose.
III. STAY PENDING APPEAL
Defendants move for a stay pending appeal pursuant to Federal Rule of Civil Procedure Rule 62(c). Courts weigh the following four factors in determining whether to grant a stay pending appeal:
In deciding Defendants' motion for a stay pending appeal, the Court has considered Defendants' memorandum of law in support of the motion ("Stay Mem."). --------
(1) whether the movant will suffer irreparable injury absent a stay,Hirschfeld v. Bd. of Elections, 984 F.2d 35, 39 (2d Cir. 1993) (citation and internal quotations omitted).
(2) whether a party will suffer substantial injury if a stay is issued,
(3) whether the movant has demonstrated a substantial possibility, although less than a likelihood, of success on appeal, and
(4) the public interests that may be affected.
Here, Defendants argue that they will suffer irreparable injury absent a stay because building a permanent ramp would "complicate any future renovations to the building" and altering the bathroom would impose a substantial economic burden on them. (Stay Mem. 2.) As the Court has previously explained, however, Defendants could mitigate that burden through tax benefits available to small businesses that undertake modifications designed to make their premises more accessible to persons with disabilities. See 26 U.S.C. § 44; Kreisler, 2012 WL 3961304, at *8. The first factor thus only slightly favors Defendants.
Whereas the harm to Defendants is primarily economic, Plaintiff will continue suffering significant dignitary harm if the Court grants the motion because he will be unable to eat at the Diner. See Disability Advocates Inc. v. Paterson, No. 03 Civ. 3209 (NGG), 2010 WL 933750, at *2 (E.D.N.Y. Mar. 11, 2010) (holding that elevating the defendant's economic interests over the civil rights of the disabled plaintiffs would require "an extremely strong likelihood of success on the merits."). The fact that Plaintiff can dine at other similar restaurants in the neighborhood, as Defendants contend, misses the point. (Stay Mem. 2.) Plaintiff brought this ADA claim precisely so that he would have the opportunity to eat at this restaurant, something that the law allows him to do. Accordingly, the second factor strongly favors Plaintiffs.
Turning to the third factor, the Court finds that Defendants have also failed to demonstrate a substantial possibility that they will succeed on appeal. Defendants cite decisions from other circuits to argue that Plaintiff lacked standing to bring this claim. (See id. at 2-3.) As the Court explained previously, however, courts in the Southern District have repeatedly held that a plaintiff need not enter a specific public building to bring a claim that the building violates the ADA. See Access 4 All, Inc. v. G & T Consulting Co., LLC, No. 06 Civ. 13736 (DF), 2008 WL 851918, at *4 (S.D.N.Y. Mar. 8, 2008) (holding that ADA plaintiffs "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"); Access 4 All, Inc. v. Trump Int'l Hotel & Tower Condo., 458 F. Supp. 2d 160, 167 (S.D.N.Y. 2006) (holding that "awareness of discriminatory conditions - and the avoidance of a public accommodation because of that awareness - is injury in fact," regardless of whether a wheelchair user actually entered the defendant's premises). Defendants also failed to introduce any evidence at trial to demonstrate that the modifications were not readily achievable. Accordingly, this factor weighs heavily against the granting of a stay.
Finally, Defendants have failed to show that public interests weigh in their favor. Defendants argue that the Court's ruling "will impose substantial costs and burdens of compliance" on similar types of restaurants in New York City. (Stay Mem. 3.) That others will be encouraged to comply with their obligations under the ADA, however, is hardly an argument against the public interest. Indeed, granting a stay may have the detrimental effect of emboldening non-ADA-compliant property owners while at the same time preventing other individuals with physical disabilities from eating at the Diner or other establishments.
Because the second, third, and fourth factors clearly weigh against Defendants, the Court denies their motion for a stay.
IV. CONCLUSION
For the foregoing reasons, the Court awards Plaintiff $55,548 in attorneys' fees and $4,869.05 in legal costs and expenses. Furthermore, the Court will permit Plaintiff to file an application for fees associated with the appeal in the event Plaintiff is successful. Finally, the Court DENIES Defendants' motion for a stay pending appeal. SO ORDERED.
/s/_________
RICHARD J. SULLIVAN
United States District Judge Dated: August 1, 2013
New York, New York
* * *
Plaintiff Todd Kreisler is represented by Adam T. Shore, of the Law Offices of Adam Shore, 100 Park Avenue, Suite 1600, New York, New York 10017, and Ben-Zion Bradley Weitz, of the Weitz Law Firm, P.A., 18305 Biscayne Boulevard, Aventura, Florida 33160.
Defendants Second Avenue Diner Corp. and J.J.N.K. Corp. are represented by Paul Stamatelatos, Esq., 36-19 Broadway, 2nd Floor, Astoria, New York 11106.