The Rise of ADA Litigation in New York
November 7, 2019
By: Samuel G. Dobre
The Rise of ADA Litigation in New York
As published in WestViewNews, Volume 15, No. 11, November 2019
Restaurants, bars, stores, and theaters throughout New York City continue to fight against sprees of federal lawsuits brought pursuant to Title III of the Americans with Disabilities Act (ADA). These ADA lawsuits raise claims that physical and webpage barriers discriminate against the disabled.
Many businesses hire an ADA consultant to work with an architect to focus solely on physical accessibilities, yet they still may be hit with a surprise ADA lawsuit. The ADA Accessibility Guidelines are complex. For example, the rules respecting bathrooms impose over 95 requirements. There also are requirements for entrances, parking, ramps, windows, signage, telephones, doors, stairs and many more elements and spaces throughout a business’s place of public accommodation. These requirements essentially encourage federal litigation, with thousands of lawsuits being filed in New York courts each year.
A major point of dispute: How much compensation should be awarded to a wheel-chair bound patron who cannot access a place of public accommodation such as a restaurant due to a staircase or entrance lacking an ADA compliant ramp or bathroom? Federal courts in New York have opined on this question. If a plaintiff has not established any specific damages other than alleging compensatory damages, courts in the Second Circuit have found an award of $1,000 to be appropriate. For example, in Shariff v. Beach 90th St. Realty Corp., the plaintiff was awarded $1,000 due to a failure to establish any specific damages other than "that he fe[lt] discriminated against."
While the patron’s damages in most of these cases are small, the ADA creates an incentive for plaintiff’s lawyers to pursue these cases because the ADA permits the award of attorneys’ fees. The availability of attorneys’ fees, even for small violations, creates hydraulic pressure to settle these cases. This plaintiff-friendly law that rewards attorneys’ fees and costs enables single complainants to file dozens of ADA “cookie cutter” accessibility lawsuits against different stores and restaurants usually with representation by the same plaintiff’s attorney.
In an ADA case brought by a wheelchair-bound patron who alleged he was unable to access a Subway restaurant, Judge Sterling Johnson in the Eastern District of New York noted that “One such legal giant, Charles Hamilton Houston, famously said that ‘a lawyer is either a social engineer or he’s a parasite on society.’ The conduct of counsel is indicative of a parasite disguised as a social engineer. It must stop.”
While the intent of the ADA is very clear – to prohibit discrimination on the basis of disability in “places of public accommodation,” – Congress may not have effectively anticipated the influx of Title III lawsuits. The ADA should not be used as a weapon for exorbitant monetary benefit to plaintiffs’ bar through the creation of serial complainants at the expense of many businesses that are forced to shut down.
Every business that operates a place of public accommodation and/or a website is at risk of potential litigation and should seek experienced legal guidance to best avoid and protect against ADA lawsuits.
