Mercer v. 1750-1752 Second Avenue Owner, LLC

Background

Stacey Mercer brought this action on May 17, 2024, based on alleged physical barriers that prevented her from visiting Chicken Insider, a restaurant on Second Avenue in Manhattan. She asserted claims under Title III of the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law.

The opinion identifies Chicken Insider Corp. and 1750-1752 Second Avenue Owner, LLC as defendants. Chicken Insider waived service, and Second Avenue Owner was served through an authorized agent. Neither defendant had appeared as of the order. The Clerk issued a certificate of default against Second Avenue Owner twice, but the court previously vacated the first entry. The second certificate was issued after Second Avenue Owner failed to answer.

The court had also ordered Mercer to submit materials before an initial pretrial conference. After repeated failures to comply, the court issued an order requiring Mercer to explain why the case should not be dismissed for failure to prosecute. Mercer then applied for an order requiring Second Avenue Owner to show cause why a default judgment should not be entered. At the February 12, 2025 hearing, no party or attorney appeared. Mercer’s attorney later explained that he had been sick, but the court noted that he had not timely notified the court or requested an adjournment as required by the court’s rules.

Damages

A default judgment is a judgment entered when a party fails to defend. The court held that Mercer had not properly supported her request for $1,000 in compensatory damages. Allegations in the complaint do not establish the amount of damages. The court required an affidavit or other evidence explaining the proposed damages and the basis for each element of the requested amount.

Mercer submitted no affidavit or other evidence supporting her damages calculation. The court therefore found that she had not complied with its Individual Rules of Practice and had not provided an evidentiary basis for awarding damages.

Injunctive Relief

Mercer also requested a permanent injunction requiring the defendants to remove all physical barriers at the property that violated the ADA. The court stated that ADA architectural changes are limited to steps that are “readily achievable,” meaning feasible in light of factors such as the nature and cost of the changes, the facility’s and business’s financial resources, the effect on operations, and the type and structure of the business.

The court found that the record lacked basic information about the proposed alterations, their costs, regulatory and architectural constraints, and the defendants’ resources. The court noted that some measures, such as accessibility signage, might be relatively easy and inexpensive, but it could not determine whether correcting all of the alleged violations would be readily achievable. The court also could not evaluate the required factors for a permanent injunction, including irreparable injury, the adequacy of monetary damages, the balance of hardships, and the public interest.

Disposition

The court denied Mercer’s request for default judgment against Second Avenue Owner. It did not enter the requested damages award or permanent injunction. The court expected Mercer to submit a renewed application for an order to show cause by March 6, 2025, if no notice of dismissal was filed sooner, and directed that any renewed application comply with the court’s Individual Rules, including Attachment A. Mercer was directed to serve the order on the defendants and retain proof of service. The Clerk was directed to terminate the motion pending at docket entry 50.