Bernstein v. City of New York
Bernstein v. City of New York
Opinion of the Court
SUMMARY ORDER
Plaintiff-Appellant Richard Howard Bernstein (“Bernstein”) appeals from an order of the United States District Court for the Southern District of New York (Colleen McMahon, /.), entered on February 20, 2015. The district court adopted as its opinion the Report and Recommendation of Magistrate Judge Sarah Net-burn, granting Defendants-Appellees City
Bernstein seeks declaratory and injunc-tive relief for the City’s alleged failure to comply with the Americans with Disabilities Act of 1990, (“ADA”), 42 U.S.C. 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 794, et seq., based on various alleged violations preventing him, a blind person, and others similarly situated from gaining “equal or reasonable access” to Central Park. We assume the parties’ familiarity with the additional underlying facts, the procedural history, and the issues presented for review, which we reference only as necessary to explain our decision to vacate and remand.
1. Standing
We review “d<e novo a judgment of dismissal pursuant to Fed.R.Civ.P. 12(b)(6), assuming all facts alleged within the four corners of the complaint to be true, and drawing all reasonable inferences in plaintiffs favor.”
Therefore, we have found standing in ADA suits seeking injunctive relief, “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 plaintiffs visits and the proximity of defendants’ [services] to plaintiffs home, that plaintiff intended to return to the subject location.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187-88 (2d Cir. 2013) (per curiam), cert. denied, — U.S. -, 134 S.Ct. 2295, 189 L.Ed.2d 174 (2014); see also Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008) (per curiam). Applying this standard in Camarillo, for example, we found standing where (1) defendants had failed to effectively communicate menu items to the legally blind plaintiff— an alleged ADA violation, (2) this discriminatory treatment was likely to continue, and (3) the plaintiffs past visits and proximity to the restaurant made it reasonable to infer her intent to return. See Camarillo, 518 F.3d at 158.
While Bernstein’s amended complaint is certainly broad, it includes two categories of concrete factual allegations in support of his claim that the City has denied him and others similarly situated “equal or reason
Second, the amended complaint and attached expert report
Our decisions in Kreisler and Camarillo lend support to Bernstein’s standing to pursue this claim. First, Bernstein has alleged past injury under the ADA (namely, that he was denied “equal or reasonable access to Central Park” due to its failure to comply with the ADA and the Rehabilitation Act). Second, it is reasonable to infer from Bernstein’s amended complaint that the alleged violations — including the allegedly violative conditions in Bernstein’s amended complaint and the attached expert report — will continue.
However, we cannot yet infer intent to return from Bernstein’s complaint. Bernstein alleges only that he has visited New York “approximately 30 times per year, for over 10 years,” and that he has made “hundreds of visits to Central Park.”
Accordingly, we remand this issue for further fact-finding.
2. Failure to State a Claim
The City also argues that we should affirm the judgment below on the alternate ground that Bernstein’s amended complaint fails to state a claim upon which relief can be granted under Fed.R.Civ.P. 12(b)(6). Because the district court did not address this alternate ground for dismissal, we remand this motion for consideration. We do note, however, that Bernstein’s amended complaint advances the incorrect standard for the City’s alleged ADA violation.
Specifically, Bernstein asserts that the City has violated Section 504 of the Rehabilitation Act and Title II of the ADA. “Section 504 of the Rehabilitation Act ‘prohibits programs and activities receiving federal financial assistance from excluding, denying benefits to, or discriminating against otherwise qualified’ individuals with a disability.” Disabled in Action v. Bd. of Elections in City of New York, 752 F.3d 189, 196 (2d Cir. 2014) (quoting 29 U.S.C. § 794(a)). Title II of the ADA provides that “no qualified individual with a disability shall, by reason of such disability, be excluded from participation in or be denied the benefits of the services, programs, or activities of a public entity, or be subjected to discrimination by any such entity.” 42 U.S.C. § 12132.
To establish a violation of Title II of the ADA or the Rehabilitation Act, “a plaintiff must demonstrate that ‘(1) he is a qualified individual with a disability; (2) the defendant is subject to one of the Acts; and (3) he was denied the opportunity to participate in or benefit from the defendant’s services, programs, or activities, or was otherwise discriminated against by the defendant because of his disability.’ ” Disabled in Action, 752 F.3d at 196 (quoting McElwee v. Cnty. of Orange, 700 F.3d 635, 640 (2d Cir. 2012)). Only the third element is in dispute here.
Title II and the Rehabilitation Act require only that entities make “reasonable accommodations” to enable “meaningful access” to services, programs, and activi
For the foregoing reasons, the district court’s judgment is VACATED and the case is REMANDED for further proceedings consistent with this order.
. We note that the City moved to dismiss Bernstein’s amended complaint under Fed. R.Civ.P. 12(b)(6) "for failure to state a claim upon which relief can be granted, and for lack of standing.” App. 46. This Court has recognized "that dismissals for lack of standing may be made pursuant to Fed.R.Civ.P. 12(b)(6).” Rent Stabilization Ass’n of City of New York v. Dinkins, 5 F.3d 591, 594 (2d Cir. 1993). Accordingly, we consider the City’s dismissal for lack of standing pursuant to Fed.R.Civ.P. 12(b)(6), rather than construing the motion to dismiss for lack of standing to fall under Fed.R.Civ.P. 12(b)(1).
. We may consider “documents attached to the complaint as an exhibit” in assessing a motion to dismiss. Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
. The amended complaint also includes a description of an alleged incident in which Bernstein was struck by a bicycle while attempting to walk in a path in the Park. Am. Compl. ¶ 4 15. Bernstein alleges in his complaint that "[t]his incident was a direct and proximate result of the City's failure to bring the Park in compliance with the ADA. Specifically, had the City followed the communication, signage, and other requirements of the ADA listed above, this incident would have been avoided.” Am. Compl. ¶ 5 16. Bernstein provides no details about the accident other than that it occurred on a “pedestrian path in Central Park” on August 13, 2012, Am. Compl. ¶ 5 15. For this incident to be relevant to our standing analysis, Bernstein would have to allege facts sufficient to suggest, as he alleges, that ADA violations denying blind individuals “reasonable,” or meaningful, access to the Park in fact caused this accident. We thus find the allegation that ADA violations cause Bernstein's biking accident overly conclusory to contribute to our analysis.
.The concluded that the frequency of Bernstein’s alleged visits to New York City and the Park were “facially implausible.” App. 98. We disagree. Because we must "assum[e] all facts alleged within the four corners of the
. On June .24, 2014, the district court granted Bernstein’s motion for leave to amend. The district court instructed Bernstein to address the pleading defects identified by the City, and noted that no further opportunities to amend the. complaint would be provided should the City file a second motion to dismiss.
. See Warth v. Seldin, 422 U.S. 490, 501, 95 S.Ct. 2197, 45 L.Ed.2d 343 (1975) C[I]t is within the trial court’s power to allow or to require the plaintiff to supply, by amendment to the complaint or by affidavits,,further particularized allegations of fact deemed supportive of plaintiff’s standing.”).
Reference
- Full Case Name
- Richard Howard BERNSTEIN v. CITY OF NEW YORK, Department of Transportation
- Cited By
- 62 cases
- Status
- Published