De La Rosa v. Lewis Foods of 42nd St., LLC

• Decision Date: 13 August 2015
• Docket Number: No. 13–CV–696 (VEC).,13–CV–696 (VEC).
• Parties: Dedra DE LA ROSA, Plaintiff, v. LEWIS FOODS OF 42ND STREET, LLC, Defendant.
• Court: U.S. District Court — Southern District of New York

124 F.Supp.3d 290

Dedra DE LA ROSA, Plaintiff,

v.LEWIS FOODS OF 42ND STREET, LLC, Defendant.

No. 13–CV–696 (VEC).

United States District Court, S.D. New York.

Signed Aug. 13, 2015.

Adam Saul Hanski, Glen Howard Parker, Robert Gerald Hanski, Parker Hanski LLC, New York, NY, for Plaintiff.

Steve A. Miller, Scott C. Fanning, Fisher & Phillips LLP, Chicago, IL, Gregg H. Salka, Jason Alex Storipan, Fisher & Phillips, LLP, Murray Hill, NJ, for Defendant.

MEMORANDUM OPINION & ORDER

VALERIE CAPRONI, District Judge:

Plaintiff Dedra De La Rosa initiated this lawsuit against McDonald's Restaurants of New York, Inc., in January 2013, alleging, inter alia, that McDonald's Restaurants designed and constructed a restaurant that did not comply with the Americans with Disabilities Act ("ADA"), 42 U.S.C. § 12183(a). Compl. ¶ 45. De La Rosa has added and settled with a number of defendants, including McDonald's USA LLC; the sole remaining defendant, Lewis Foods of 42nd Street, LLC ("Lewis Foods"), currently operates the allegedly non-compliant McDonald's restaurant on 42nd Street in Manhattan. Lewis Foods moves to dismiss¹ De La Rosa's claims that pertain to noncompliant alterations that were made to the premises before Lewis Foods had any role at the restaurant. The parties dispute whether a previous owner's alteration of a property in violation of Section 12183(a)(2) constitutes a continuing violation of the ADA that runs with the property, requiring a subsequent tenant of the property to rectify the past violation, irrespective of when it occurred and whether such a project is, at this point, "readily achievable."² Based on the plain text of the statute, the Court concludes that it does not; accordingly, Defendant's motion is GRANTED.

BACKGROUND³

Dedra De La Rosa is a New York City resident who suffers from medical conditions that leave her wheelchair-bound. Second Am. Compl. ("SAC") ¶¶ 5–6. She regularly travels to Times Square and patronizes the Times Square-based McDonald's restaurant. Id. ¶¶ 34–35, De La Rosa Dep. at 52–53. In fact, De La Rosa has visited the McDonald's "[o]ver 50 times," dating back to her childhood. De La Rosa Dep. at 52–53. In or around 2003, the restaurant was renovated; this renovation constituted an "alteration" within the meaning of the ADA. See Storipan Letter of Oct. 3, 2014, Dkt. 85. Among other changes made as part of the renovation, a mezzanine, which is accessible only via a stairway, and a raised area, which is also accessible only via stairs, were created. See Def. Mem. Ex. A, De La Rosa Dep. at 94, 115. Since the renovation, De La Rosa has continued to visit the McDonald's regularly, including in 2003 and 2004. De La Rosa Dep. at 94–95, 116. Although she has asked about access to the upper floors of the restaurant, De La Rosa has been informed that there is no way for her to access the second floor, the mezzanine, or the raised area. Id. at 94.⁴

Plaintiff, a frequent filer in this district,⁵ initiated this lawsuit in January 2013. In February 2013, she filed an amended complaint naming Lewis Foods among the defendants in the action. Other defendants included the out-of-possession owners of the building and prior tenants, including McDonald's Restaurants of New York, Inc., Six Times Square Center Partners, L.P., Epic Candler LLC, and McDonald's USA, LLC; they have all been dismissed by various stipulations and amendments throughout this litigation. Lewis Foods, the current operator of the McDonald's restaurant, is the sole remaining defendant.

Lewis Foods has leased and operated the McDonald's pursuant to a Franchise Agreement since 2010. Def. Stip. of Facts, Dkt. 142, ¶ 2; see also Def. Mem. Ex. C. Pursuant to the Franchise Agreement, Lewis Foods is obligated to make necessary repairs and construction on the premises and "to comply with all federal, state, and local laws, ordinances, and regulations affecting the operation of the Restaurant." Id. ¶¶ 3–5. Lewis Foods has not "altered" the premises. See Lewis Dep. at 26.

DISCUSSION

There are two unsettled legal questions that are potentially dispositive of this motion. First, is the current operator of a place of public accommodation liable for alterations that do not comply with the strictures of 42 U.S.C. § 12183(a)(2) that were made after 1992 but before the current operator owned, leased, or operated the premises?⁶ Second, how does the statute of limitations apply to a claim pursuant to 42 U.S.C. § 12183(a)(2) ? The plain language of the statute leads the Court to conclude that a current operator of a premises is not liable for a predecessor's failure to make alterations in accordance with the specifications of Section 12183(a)(2). Even if Defendant could be liable, Plaintiff's claim would be time-barred. Accordingly, Defendant's motion to dismiss Plaintiff's alterations claim is granted.

I. Successor Liability

As a "general rule," Title III⁷ of the ADA prohibits "discrimination ... ‘on the basis of disability in the full and equal enjoyment of ... any place of public accommodation by any person who owns, leases or operates [the] place of public accommodation.’ " Krist v. Kolombos Rest., Inc., 688 F.3d 89, 94 (2d Cir.2012) (quoting 42 U.S.C. § 12182(a) (alterations omitted)). That "general rule" limits the entities that can be liable for discrimination to owners, lessors, lessees, and operators but "does not define what constitutes ‘discrimination.’ " Lonberg v. Sanborn Theaters Inc., 259 F.3d 1029, 1032 (9th Cir.2001). Section 12183(a) provides two non-exclusive examples of "discrimination for purposes of section 12182(a)," including (1) "a failure to design and construct facilities ... that are readily accessible to and usable by individuals with disabilities," ("new construction standard") and (2) "a failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs" ("alteration standard"). 42 U.S.C. § 12183(a).

For the purposes of this motion, the parties agree that Lewis Foods operates McDonald's, which is a "place of public accommodation," and that, seven years prior to Lewis Foods' involvement with the premises, the premises were renovated (or, in the argot of the statute, "altered") in a way that did not comply with Section 12183(a)(2).⁸ Plaintiff contends that Lewis Foods is liable for the non-complying renovation for two reasons—first, because current operators of a public accommodation are liable under the ADA for non-complying alterations made by predecessors, and second, because Lewis Foods contractually assumed liability for any predecessor's lack of compliance. Although the Court is sympathetic with Plaintiff's position, the plain text of the ADA is incompatible with her argument.

A. Successor Liability under 42 U.S.C. § 12183(a)

At the outset, the Court notes that " ‘[a]s a remedial statute, the ADA must be broadly construed to effectuate its purpose of providing a clear and comprehensive national mandate for the elimination of discrimination against individuals with disabilities.’ " Mary Jo C. v. N.Y. State & Local Ret. Sys., 707 F.3d 144, 160 (2d Cir.2013) (quoting Noel v. N.Y.C. Taxi & Limousine Comm'n, 687 F.3d 63, 68 (2d Cir.2012) ). When there is an ambiguity about the ADA's scope, its "broad remedial purpose" provides a compelling justification for an inclusive interpretation. Castellano v. City of New York, 142 F.3d 58, 69 (2d Cir.1998). Although this remedial purpose requires courts to examine the statutory text through a broad lens, it is primarily relevant "[w]here the language is ambiguous." Id. at 67 (citing Robinson v. Shell Oil Co., 519 U.S. 337, 345, 117 S.Ct. 843, 136 L.Ed.2d 808 (1997) ).

The Court has found four other cases in which the issue of the ADA's coverage of successor liability for non-compliant alterations or construction has been discussed. See Rodriguez v. Investco, LLC, 305 F.Supp.2d 1278, 1281 (M.D.Fla.2004) ; Paulick v. Ritz–Carlton Hotel Co., LLC, No. 10–CV–4107(CRB), 2011 WL 6141015, at *3–6 (N.D.Cal. Dec. 9, 2011) ; Lema v. Carson Hotel, LLC, No. 10–CV–7816(MMM), Dkt. 57, June 19, 2012 Order Granting Defendant's Motion for Summary Judgment ("Lema" ); Lemmons v. Ace Hardware Corp., No. 12–CV–3936(JST), 2014 WL 3107842, at *7–11 (N.D.Cal. July 3, 2014). The three courts that have analyzed the issue in the context of the "new construction" standard of subsection 12183(a)(1) have all held that a successor is not liable for the initial owner's failure to adhere to the ADA's requirements for new construction, whereas Lemmons —the only case interpreting subsection 12183(a)(2)'s alteration standard—imposed liability on the successor to the entity that made the non-complying alteration.⁹

Regardless of the policy preferences that explicitly fueled the Lemmons court's analysis, the plain language of the ADA does not permit the Court to draw a distinction between the two subsections and does not contemplate successor liability under either. Instead, this Court joins with the other district courts that have "construed § 12182(a) as identifying the types of individuals and entities that can be held liable under Title III of the ADA, and § 12183(a) as describing ... conduct that give[s] rise to liability." Lema at 16 (citing Paulick, 2011 WL 6141015, at *3 ). The general rule of Section 12182(a) serves to prohibit discrimination in places of public accommodation "by any person who owns, leases (or leases to), or operates a place of public accommodation." Specific acts that constitute discrimination are spelled out in sections 12182(b)(2), 12183(a)(1), and 12183(a)(2). The alleged discrimination at issue in this motion is the "failure to make alterations in such a manner that, to the maximum extent feasible, the altered portions of the facility are readily accessible to and usable by individuals with disabilities." 42 U.S.C. § 12183(a)(2) (...