        Case 3:19-cv-01581-BKS-ML Document 18 Filed 06/19/20 Page 1 of 6




UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
DEBORAH LAUFER, Individually,                                Case No.: 3:19-cv-1581 (BKS/ML)
                          Plaintiff,
-against-
JEGG REALTY NORWICH, LLC,
                          Defendant.
-------------------------------------------------------X
                            DEFENDANT’S MEMORANDUM OF LAW
                            CHALLENGING PLAINTIFF’S STANDING
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                                  TABLE OF CONTENTS
ARGUMENT ………….………………………………………………………………………… 1
CONCLUSION …………………………………………………………………….……………. 4


                                TABLE OF AUTHORITIES
Cases
Lauffer v. Laxmi & Sons LLC, 2020 WL 2200207 (NDNY 2020) ……………………….. 1,2,3,4
Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187, 187-88 (2d Cir. 2013)………...............1
Harty v. Greenwich Hosp. Grp., LLC, 536 F. App'x 154, 155 (2d Cir. 2013) ………………..….2
Harty v. Simon Prop. Grp., L.P., 428 F. App'x 69, 71–72 (2d Cir. 2011) …………………..……2
Griffin v. Dep't of Labor Fed. Credit Union, 912 F.3d 649, 656 (4th Cir. 2019)…………..……..2


Statutes/Regulations
28 U.S.C. §36.302 ………………………………………………………..………………………3
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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF NEW YORK
---------------------------------------------------------X
DEBORAH LAUFER, Individually,                                  Case No.: 3:19-cv-1581 (BKS/ML)
                          Plaintiff,
-against-
JEGG REALTY NORWICH, LLC,
                          Defendant.
-------------------------------------------------------X
                            DEFENDANT’S MEMORANDUM OF LAW
                            CHALLENGING PLAINTIFF’S STANDING
        Defendant, Jegg Realty Norwich, LLC, offers the within memorandum challenging

Plaintiff’s standing. Based on the rationale espoused in Lauffer v. Laxmi & Sons LLC, 2020 WL

2200207 (NDNY 2020) (the “Laxmi” decision) and cases cited therein, this Court should dismiss

the current suit, and all of Plaintiff’s blunderbuss lawsuits, for lack of standing.

                                                ARGUMENT
        In the ADA context, the Second Circuit has found standing “where (1) the plaintiff

alleged past injury under the ADA; (2) it was reasonable to infer that the discriminatory

treatment would continue; and (3) it was reasonable to infer, based on the past frequency of

plaintiff’s visits and the proximity of defendants’ restaurants to plaintiff’s home, that plaintiff

intended to return to the subject location.” Laxmi, 2020 WL 2200207, * 2, citing Kreisler v.

Second Ave. Diner Corp., 731 F.3d 184, 187, 187-88 (2d Cir. 2013). Whether an ADA plaintiff

intends to return to a place of public accommodation is a fact-specific inquiry. Id., citing

Kreisler (finding the plaintiff had standing to challenge a diner’s wheelchair inaccessible

entrance and barriers inside where the plaintiff alleged that the seven-to-eight-inch step at the

front entrance“ deterred him from frequenting the Diner; the Diner has not indicated an intent to

                                                           1
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remedy this barrier; and [the plaintiff’s] testimony and proximity to the Diner create a reasonable

inference that he would frequent the Diner were the violation remedied”); Harty v. Greenwich

Hosp. Grp., LLC, 536 F. App'x 154, 155 (2d Cir. 2013) (finding Florida resident did not have

standing to bring an ADA action against the owner of a Hampton Inn in Stamford, Connecticut;

absent evidence of “any concrete plan to stay overnight in Stamford in the future,” his claim

“lacks the specificity necessary to establish an ongoing injury caused” by the alleged ADA

violation); Harty v. Simon Prop. Grp., L.P., 428 F. App'x 69, 71–72 (2d Cir. 2011) (finding

Florida resident who “avows a present intent to return to” the defendant’s mall in New York,

“the likelihood of which finds some support in professional and family reasons,” has standing to

pursue an injunctive relief claim under the ADA challenging its lack of accessibility).

         As in Laxmi, Lauffer again admits that she considers herself an ADA “tester.” Also as in

Laxmi, “[t]here are no facts in the Complaint or Plaintiff’s affidavit indicating that she has ever

traveled to Rensselaer, New York, or anywhere in New York, or that she has any reason to travel

anywhere in New York or any reason to seek lodging anywhere in New York.” Id. at *4.

Accordingly, this Court’s citation to and use of Greenwich Hosp. and Griffin 1 to question

Lauffer’s standing was and is prescient. Indeed, and as in Laxmi, the same Plaintiff does not

allege that she has, will, or ever intends to come to New York to avail herself of Defendant’s

lodging services. As such, Plaintiff has no standing.




1
  See e.g., Greenwich Hosp. Grp., LLC, 536 F. App’x at 155 (finding the plaintiff’s “assertion that he visits public
accommodations as an ADA ‘tester’ ” failed to establish standing as it lacked “the requisite link to Stamford,
Connecticut” -- the location of the defendant’s Hampton Inn), and Griffin v. Dep't of Labor Fed. Credit Union, 912
F.3d 649, 656 (4th Cir. 2019) (holding that a plaintiff who was ineligible to be a member of a credit union failed to
establish standing to bring an ADA claim concerning its website because tester status “cannot create standing in the
absence of an otherwise plausible assertion that a return to the website would allow [the plaintiff] to avail himself of
its services”) (emphasis added).


                                                           2
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        Plaintiff attempts to distance herself from the rationale of Laxmi, Greenwich Hosp. and

Griffin (and the other cases cited in those decisions) by arguing that there is a distinction between

“physical barrier” cases and website cases. Plaintiff’s argument is unavailing and contrary to

both the plain language and the intent of the ADA.

        Indeed, the plain language of the regulation cited by Plaintiff uses the same language

from the above cases which require the plaintiff to make a plausible assertion that a return to the

subject website would allow the plaintiff to avail him/herself of the defendant’s services. To wit:

        28 U.S.C. § 36.302 Modifications in policies, practices, or procedures.
        (a) General. A public accommodation shall make reasonable modifications in
        policies, practices, or procedures, when the modifications are necessary to afford
        goods, services, facilities, privileges, advantages, or accommodations to
        individuals with disabilities, unless the public accommodation can demonstrate
        that making the modifications would fundamentally alter the nature of the goods,
        services, facilities, privileges, advantages, or accommodations.
(Emphasis added.) The prefatory language of the regulation at issue clearly evidences

that a putative plaintiff must have made an attempt, or have some intent, to use the goods

and services being discussed on the christensenalexander@example.com. 2 Here, and as in Laxmi, there are no

plausible assertions made by Plaintiff’s about any alleged attempt or intent to use

Defendant’s lodging services in New York – none.

        Likewise, the ADA is not a simple fairness in advertising statute regulating content with

that goal in mind. Rather, the intent and design of the ADA is to promote accommodations to

assist people with disabilities, and thereby allow those who need and intend to use those

accommodations the ability to access the related goods and services. The ADA does not and can



2
 Notably, the language cited by Plaintiff in her complaint arguably complies with section (e). See Complaint at ¶11.
Moreover, if Plaintiff had any follow-up question she could have sent an email or called.


                                                         3
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not extend to a psychological grievance deriving from alleged technical shortcomings in a

website advertising a place that a person has not been, and/or a place or service they have no

intention to visit or use. 3

                                                CONCLUSION

         For the foregoing reasons, and pursuant to the rationale espoused in Lauffer v. Laxmi &

Sons LLC, 2020 WL 2200207 (NDNY 2020) and cases cited therein, this Court should dismiss

the Plaintiff’s actions for lack of standing.


                                                      LEVINE & LEVINE, PLLC
                                                      Attorneys for Defendant Frederick M. Rogers

                                                      By: /s/ John T. Shaban
                                                      John T. Shaban (JS1049)
                                                      2 Jefferson Plaza, Suite 100
                                                      Poughkeepsie, New York 12601
                                                      Tel. (445)460-3235

                                                      29 Ledgewood Road
                                                      Redding CT, 06896
                                                      christensenalexander@example.com

                                                      Dated: June 19, 2020




3
  Likewise, the cases cited in Plaintiff’s brief show that courts look for some link to the use of the goods and
services, and/or some intent to visit the venue in question. See e.g., Pl Memo at 8-9, citing Harty v. Simon Property
Group, L.P., 428 Fed. Appx. 69, 71 (2nd Cir. 6/29/2011) (court held that “Harty's allegations are sufficient, for
pleading purposes, to establish ADA standing based upon a plausible intention to return to the Nanuet Mall. The
amended complaint alleges that Harty plans to return both as a patron “to avail himself of the goods and services
offered to the public at the property” and as a tester “to determine whether the property has been made ADA
compliant”) (emphasis added); Access 4 All, Inc. v. Absecon Hospitality Corp., 2006 WL (445)460-3235, 1:04-cv-6060
(D.N.J. 2006) (plaintiff was an admitted ADA “tester” and the court denied summary judgment, reasoning that:
“because Plaintiff Esposito is a frequent litigant with the stated goal of ensuring ADA compliance, his claim of
intent to return to the [hotel] to do additional examinations is made more, not less, credible”) (emphasis added).

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