Kreisler v. Second Ave. Diner Corp.
| Decision Date | 10 September 2012 |
| Docket Number | No. 10 Civ. 7592 (RJS),10 Civ. 7592 (RJS) |
| Parties | TODD KREISLER, Plaintiff, v. SECOND AVENUE DINER CORP., et al., Defendants. |
| Court | U.S. District Court — Southern District of New York |
OPINION AFTER BENCH TRIAL
Plaintiff Todd Kreisler brings this action against Defendants Second Avenue Diner Corp. and J.J.N.K. Corp. pursuant to 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).
Having held a bench trial in this action, the Court issues the following Findings of Fact and Conclusions of Law, as required by Rule 52(a) of the Federal Rules of Civil Procedure. For the reasons set forth below, the Court finds that Plaintiff has met his burden of establishing that Defendants must construct a permanent ramp outside of the Plaza Diner, post clearer signage, and install a rear grab bar in the men's restroom, but that Plaintiff has failed to carry his burden with respect to the rest of the alleged violations. The Court also finds that Defendants must pay $1,000 in damages and are liable for attorneys' fees in an amount to be determined upon further submissions by Plaintiff.
Plaintiff commenced this action on October 4, 2010. The Complaint alleges that Defendants have violated the ADA, the NYCHRL, and the NYSHRL by operating a place of public accommodation -- namely, a diner -- that is inaccessible to individuals who use wheelchairs due to a step at the entrance, a vestibule that is difficult to maneuver, and an interior that isinaccessible in numerous respects. Plaintiff seeks injunctive relief to remove alleged architectural barriers at Defendants' facility, 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 non-jury trial. At trial, Plaintiff called four witnesses -- Todd Kreisler, Konstantinos ("Mike") Aronis, John Kalas, and Leon Geoxavier -- all of whom were cross-examined by Defendants. At the conclusion of Plaintiff's case, Defendants called two witnesses -- David Gentile and Panagis Georgopoulos -- each of whom Plaintiff cross-examined. On November 1, 2011, the parties submitted post-trial memoranda ("Post-Trial Mem.") in lieu of closing arguments.
Plaintiff Todd Kreisler resides at 250 East 60th Street, New York, New York, which is about four blocks from the Plaza Diner (the "Diner"). (Tr. 20:18-19, 24:7-8.) He has cerebral palsy, as well as rheumatoid arthritis and asthma. He can stand, but he cannot walk. (Id. at 21:1-6.) Accordingly, he uses a motorized wheelchair to travel in and around his neighborhood. (Id. at 35:5-11).
Plaintiff first passed by the Diner in September of 2008. (Id. at 22:15-16.) At that time, he observed a step that was approximately seven or eight inches high and concluded that he would be unable to enter the premises. Accordingly, he made no attempt to enter the Diner. (Id. at 23:11-12.) In fact, Plaintiff has never entered the Diner (Id. at 26:22-24, 27:15-16), although he passes by it three to four times a week (id. at 24:4-6). Since the start of this litigation, Plaintiff has noticed the addition of a buzzer outside the Diner, which presumably is designed to enable wheelchair-bound patrons to ring for assistance in entering the Diner. Nevertheless, Plaintiff has made no attempt to enter the Diner (id. at 28:14-24), though he indicated that he might attempt to enter were there some indication that Plaintiff might be able to access the facilities, such as a sign explicitly stating that a ramp was available (id. at 32:9-22).
Plaintiff frequents diners and other restaurants in his neighborhood, is interested in eating at the Diner, and likely would do so, provided it were accessible. (Id. at 24:9-12.) Although the Diner provides delivery service, the Court finds credible Plaintiff's assertion that he has not ordered from the Diner because he does not order from places he cannot access, and not because he is uninterested in eating at the Diner. (Id. at 29:25-30:4.) Plaintiff has filed other lawsuits in the past against restaurants and other places of public accommodation in his neighborhood, and has accessed or eaten at several of the restaurants that he has sued subsequent to the resolution of those lawsuits. (Id. at 56:12-59:3.)
Second Avenue Diner Corp., known as the Plaza Diner, is located at 1066 Second Avenue, New York, New York, at the northeast corner of Second Avenue and 56th Street.
Second Avenue Diner Corp. is owned by Konstantinos Aronis, and leases the premises from J.J.N.K. Corp. pursuant to a rental agreement that increases the rent each year. (See Pl.'s Ex. 2.) From October 2010 until September 2011, the Diner paid $15,462 per month in rent; after October 2011, the rent increased to $16,000 per month. (Tr. 164:17-24.) The Diner earns roughly $12,000 in gross sales each week. (Id. at 132:22-25.) In 2010, the Diner's gross sales totaled $615,799, and its net profit was $23,383. (Pl.'s Ex. 6; Tr. 134:5.)2 Because the Diner has struggled to cover its rent, J.J.N.K. Corp. has not charged it for real estate tax increases. (Tr. 170:7-9, 171:11-18.)
J.J.N.K. Corp. is the owner and landlord of the premises located at 1066 Second Avenue. (Tr. 148:24-25.) John and Nick Kalas, brothers, each own 50% of the stock of J.J.N.K. (Id. at 148:9-12.) It is organized as a holding company such that J.J.N.K. as an organization receives exactly $36,000 in income each year. (Id. at 177:20-21.) The rest of the corporation's income is distributed to John and Nick Kalas as managers of the property, and each earns about $100,000 to $125,000 per year. (Id. at 177:20-25, 185:22-23.) Neither individual is named as a party in this litigation.
The Diner has one entrance that is accessible to the general public on the Second Avenue side and is approximately one to two feet from the corner of the building. (Tr. 352:1-5.) The entrance has one step, which is approximately eight inches high. (Id. at 308:13-14.)
Prior to the start of this litigation, the Diner possessed a small portable ramp made of wood. (Id. at 87:1-6.) Patrons in wheelchairs were usually pulled up the ramp in reverse; on one occasion, Aronis observed a person on a motorized wheelchair entering forward without assistance. (Id. at 87:12-24.) Approximately three or four individuals in wheelchairs eat at the Diner each week. (Id. at 83:7-13.)
Subsequent to the commencement of this litigation, J.J.N.K. Corp. bought a new ramp as a gift for the Diner. (Id. at 112:12-113:1.) The ramp is made of aluminum, worth roughly $300 to $500, contains anti-skid material, and does not have hand rails. (Id. at 113:2-9.) Defendants also installed a buzzer at the entrance of the Diner with a sign, which is printed on what appears to be a white sheet of paper, that says "Please Ring Bell for Assistance." (Id. at 114:10-19; Pl.'s Ex. 14, App. C at 2.) Since the initiation of this lawsuit, the buzzer has been utilized only once, but Diner employees are trained to look out for individuals who may need assistance entering the Diner. (Tr. 114:5-12.) The sign is removed for twice-weekly window cleaning, though Aronis conceded that the sign is sometimes down for longer periods of time. (Id. at 114:23-115:10.) The buzzer is affixed to a metal strip between the panes of glass. (Id. at 115:17-20.)
The sidewalk outside of the Diner along Second Avenue could accommodate a permanent ramp that complies with ADA standards. (Id. at 211:14-16, 215:18-23.) The cost of the ramp would vary depending on design, but would cost between $3,000 and $10,000. (Id. at 222:8-12.)3
Separate from the cost of building a ramp, Defendants' expert, Georgopoulos, testified for the first time at trial that he had learned of a directive from the New York City Department of Transportation that prohibited the construction of a permanent ramp on the corner of Second Avenue and 56th Street. (Id. at 310:8-21.) He stated that he found this directive three weeks prior to the trial, and acknowledged that he had not previously done any research as to whether a permanent ramp could be constructed. (Id. at 311:7-23.) Defendants concede that they have never sought a permit or other regulatory clearance for building a ramp. (Id.)
A ramp could also be built inside of the building, but not within the existing vestibule. (Id. at 214:14-19.) Neither party submitted evidence regarding the potential cost of such a project. (Id. at 216:5-10.)
Upon entering the front door of the Diner, there is a vestibule in which a person must make a left turn before proceeding through another door. Both doors swing outward, and individuals who use wheelchairs generally need assistance opening the doors. (Tr. 88:10-89:4.)
The vestibule is currently five feet by four feet; however, in order to comply with the ADA, it would need to be five feet by seven feet. (Id. at 315:7-18.) To enlarge the vestibule, the Diner would need to remove one booth, resulting in the loss of four seats and annual sales of at least $24,000. (Id. at 123:10-124:9; Pl.'s ex. 15-15 to 15-18.) Rebuilding the vestibule to comply fully with the ADA also would entail a one-time construction cost of between $5,000 and $10,000. (Tr. 316:6-15.)
The Diner has a seating capacity of approximately fifty, with counter seating for approximately ten on stools and the balance made up of booth tables arranged in two rows. (Tr. 124:24-25:11.) Because of the height of the counter, individuals in wheelchairs cannot use the counter seating (id. at 99:11-20), but can sit at the ends of booths (id. at 96:25-97:1-2). There are three to four tables in the Diner...
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