542 F.3d 363 (2nd Cir. 2008), 06-4730, Roberts v. Royal Atlantic Corp.

Docket Nº:06-4730-cv.
Citation:542 F.3d 363
Party Name:June ROBERTS, Stephen Lee and Suffolk Independent Living Organization (SILO), Plaintiffs-Appellants, Anita Bradley, Elizabeth Gardner, Plaintiffs, v. ROYAL ATLANTIC CORPORATION, Royal Atlantic North Corporation, Royal Atlantic Restaurant Corporation, Themistocles Kalimnios, Anthony Kalimnios, Steven Kalimnios, Ocean Realty Holding Corporation, DES
Case Date:September 18, 2008
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit

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542 F.3d 363 (2nd Cir. 2008)

June ROBERTS, Stephen Lee and Suffolk Independent Living Organization (SILO), Plaintiffs-Appellants,

Anita Bradley, Elizabeth Gardner, Plaintiffs,


ROYAL ATLANTIC CORPORATION, Royal Atlantic North Corporation, Royal Atlantic Restaurant Corporation, Themistocles Kalimnios, Anthony Kalimnios, Steven Kalimnios, Ocean Realty Holding Corporation, DES Realty Corporation, and Star Development Realty Holding Corporation, Defendants-Appellees.

No. 06-4730-cv.

United States Court of Appeals, Second Circuit.

September 18, 2008

Argued: Dec. 11, 2007.

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[Copyrighted Material Omitted]

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Martin J. Coleman, Hauppauge, NY, for Plaintiffs-Appellants.

Allan M. Cane, Fairfield, CT, for Defendants-Appellees.

Before: JACOBS, Chief Judge, POOLER and SACK, Circuit Judges.

SACK, Circuit Judge:

The plaintiffs-appellants are disabled individuals-most of whom require a wheelchair for mobility-and a non-profit organization that provides services for, and advocates on behalf of, disabled persons in Suffolk County, New York. In a complaint filed in the United States District Court for the Eastern District of New York, the plaintiffs allege that the defendants, who own and manage a resort complex in Suffolk County (“Resort" ), violate Title III of the Americans With Disabilities Act (“ADA" ), 42 U.S.C. § 12182 et seq., because the Resort's rooms and facilities are not wheelchair-accessible. The plaintiffs sought injunctive and declaratory relief, attorneys' fees, and costs. Following a bench trial, the district court (Leonard D. Wexler, Judge ) filed Findings of Fact and Conclusions of Law and, on the basis thereof, entered judgment in favor of the defendants.

For the reasons that follow, we vacate the district court's judgment and remand for further proceedings.


We summarize here those findings of fact relevant to this appeal that were made by the district court judge following the bench trial.

The Resort consists of several buildings containing apartment units located on oceanfront property in Montauk, New York. The Resort is organized for legal purposes as distinct residential cooperative corporations. Two of them are among the defendants here-the Royal Atlantic Corporation (“Royal Atlantic South" ) and the Royal Atlantic North Corporation (“Royal Atlantic North" ).

Royal Atlantic North owns thirty-nine units of the Resort in a complex of five two-storey buildings. Royal Atlantic South owns ninety-eight units in a complex of six two-storey buildings. None of the buildings has an elevator.

Most of the Resort's units are between 250 and 450 square feet in area and include a bathroom and small kitchen. Each complex has one pool surrounded by a narrow deck. Each complex also has an associated parking lot. Although there are ramps leading from these lots to the Resort buildings, they are too narrow for a wheelchair to navigate and, for that reason among others, are not ADA-compliant. Both parking lots are relatively narrow (approximately fifty feet wide) and have gravel surfaces.

The two cooperative corporations also own the Resort's land and buildings. They lease units to individuals and entities known as “proprietary tenants" who are in turn shareholders in one or more of the corporations. Many proprietary tenants rent their units to members of the general public during the summer, although they may, of course, choose to occupy their own units during that period instead.

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Units available for rent are typically advertised on the Resort's website. Defendant Double K Management Corporation (“Double K" ) acts as a sales agent for the rentals. Double K also serves as a management agent to provide maid, maintenance, and other services for each unit.

Each proprietary tenant leases his or her unit from one of the two corporations on terms that require that the tenant keep the interior of the unit-anything within its walls-in good repair. The corporations bear the responsibility for all other maintenance and repair related to the buildings, walkways, surrounding areas, and other common areas.

In June 2003, plaintiff Stephen Lee (“Lee" ), who because of his disability must use a wheelchair to move about, was a guest at the Resort. Upon his arrival, he had difficulty navigating his wheelchair through the gravel-covered parking lot and was unable to ascend steps leading to the Resort office in order to check in.

Lee experienced daily frustration and embarrassment during the remainder of his stay. He was unable to use the bathroom in his unit because its doorway was too narrow to accommodate his wheelchair. As a result, he was forced to enlist family members to assist him. Lee was also unable to reach either of the Resort's pool areas in his wheelchair.

One of the other plaintiffs, June Roberts, uses a wheelchair and is the director of plaintiff Suffolk Independent Living Organization (“SILO" ), a not-for-profit corporation that acts as an advocate for disabled individuals in Suffolk County. Roberts testified that she visited the resort in April 2003 hoping to find a suitable location for a SILO conference, found that the Resort was not accessible, and was unable to use a grant for a conference because of the lack of accessible, affordable accommodations in Montauk. In February 2004, Lee and the other plaintiffs filed the complaint initiating this lawsuit.

A bench trial began on May 31, 2005. The district court examined the following issues relating to accessibility at the Resort: (1) the creation of accessible routes to Royal Atlantic South and Royal Atlantic North from their respective parking areas by way of ramps; (2) the configuration and modification of the parking areas at the Resort; (3) the creation of accessible parking spaces at Royal Atlantic South and Royal Atlantic North without substantially limiting the number of parking spaces or interfering with maintenance access to a cesspool; (4) access to the pool areas located at the Resort; and (5) the modification of some, but not all, of the previously altered apartment units. Roberts v. Royal A. Corp., 445 F.Supp.2d 239, 244, 246 (E.D.N.Y.2006).

At one point in the proceedings, the parties agreed that a report by an independent architect evaluating the feasibility of bringing the resort into compliance with the ADA would be prepared in hopes that it would facilitate a settlement.

On August 15, 2006, the court rendered its Findings of Fact and Conclusions of Law. Among the latter, it decided, that Lee had standing to bring this action, and that the Resort was a place of public accommodation under 42 U.S.C. § 12181(7)(A).1

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As the court further recognized, regulations adopted pursuant to the ADA impose access requirements on alterations made to public accommodations after January 26, 1992. See 28 C.F.R. § 36.402(a); 2see also28 C.F.R. § 36.402(b) (an “alteration" is “a change to a place of public accommodation ... that affects or could affect the usability of the building or facility or any part thereof" ). The court decided, however, that the ADA's access requirements did not apply here because “[t]here was no evidence that the Resort underwent any alteration after 1992" within the meaning of ADA regulations. Roberts, 445 F.Supp.2d at 247.

As the district court also noted, the ADA requires removal of architectural barriers, regardless of whether alterations have been made, “where such removal is readily achievable." 42 U.S.C. § 12182(b)(2)(A)(iv); 3 see42 U.S.C. § 12181(9) (“ ‘[R]eadily achievable’ means ‘easily accomplishable and able to be carried out without much difficulty or expense.’ " ). The court concluded, however, that the plaintiffs had the burden of proving that the modifications they sought would be “readily achievable" and that they failed to meet that burden. Roberts, 445 F.Supp.2d at 248.

Based on these conclusions, the court entered judgment in favor of the defendants. The plaintiffs appeal.


On appeal from a judgment after a bench trial, we review the district court's findings of fact for clear error and its conclusions of law de novo. Mixed questions of law and fact are also reviewed de novo. Well-Made Toy Mfg. Corp. v. Goffa Int'l Corp., 354 F.3d 112, 115 (2d Cir.2003).

I. Standing

The defendants do not dispute, and we agree with, the district court's determination that Lee had standing to seek all of the relief that he pursued before the district court at trial: wheelchair access to, from, and within the parking lots, pools, and within at least two apartment units. However, we note that SILO is asserting standing as an organization based on its inability to book hotel rooms in Montauk for its disabled employees and conference

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participants. In light of the number of disabled SILO employees and conference participants, it may be that SILO's injury as an organization would not be redressed by an injunction requiring Royal Atlantic to bring several units into ADA compliance. Therefore, on remand to the extent that SILO or any other plaintiff seeks relief distinct from that sought by Lee or on different claims than those pursued by Lee, the district court should consider whether each such plaintiff has standing.4 In this connection, we note that 42 U.S.C. § 12188(a)(1) provides that “[n]othing in this section shall require a person with a disability to engage in a futile gesture if such person has actual notice that a person or organization covered by this subchapter does not intend to comply with its provisions."

II. Legal Framework

Title III of the ADA prohibits discrimination against individuals “on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation...." 42 U.S.C. § 12182(a). A Title III claim therefore requires that a plaintiff establish that (1) he or she is disabled...

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