Dunbar v. Empire Szechuan Noodle House Inc.

Background

Kirkpatrick B. Dunbar, who uses a wheelchair and is disabled as defined by the Americans with Disabilities Act (ADA), alleged that he could not enter or use the property at 4041 Broadway because of physical barriers. He sought injunctive relief under Title III of the ADA, the New York City Human Rights Law, and the New York State Human Rights Law.

Empire Szechuan previously operated a restaurant at the property. New Gold Equities Corp. owned and managed the property. After Empire failed to pay rent, New Gold enforced a rental-arrears agreement and evicted Empire in August 2019. New Gold later leased the property to Café Prime & Buffet Inc. for a buffet-style delicatessen and began renovations. New Gold stated that construction plans had been sent to an outside ADA-compliance expert, but it had not provided Dunbar with an ADA remediation plan.

Motions and Legal Standard

New Gold moved to dismiss under Federal Rule of Civil Procedure 12(b)(1), arguing that the case had become moot. Empire joined the motion. A case is moot when there is no longer a live dispute or a legally available remedy, which means the federal court lacks subject-matter jurisdiction.

The court explained that a private plaintiff may obtain injunctive relief under Title III of the ADA but may not recover damages. The court also applied the voluntary-cessation exception to mootness. Under that doctrine, a defendant generally cannot make a case moot simply by stopping the challenged conduct after being sued. The defendant asserting mootness must show that the alleged violation is not reasonably expected to recur and that the effects of the alleged violation have been completely and permanently eliminated.

Ruling as to Empire Szechuan

The court granted Empire Szechuan’s motion to dismiss under Rule 12(b)(1). Dunbar conceded that his only federal claim against Empire became moot when Empire vacated the premises because injunctive relief against Empire was no longer possible. The court therefore dismissed the ADA claim for lack of subject-matter jurisdiction and declined to exercise supplemental jurisdiction over Dunbar’s related state and city claims against Empire.

Ruling as to New Gold

The court denied New Gold’s motion to dismiss under Rule 12(b)(1). The court rejected New Gold’s argument that the case was moot merely because Empire had left and a new tenant was contractually required to comply with the law. The property was not permanently closed; instead, New Gold had secured a new food-service tenant and begun construction. The court stated that the new tenant might correct the alleged accessibility problems, but the incomplete renovations did not establish that the problems had been permanently eliminated or could not recur.

The court also stated that a landlord has an independent obligation to comply with the ADA that cannot be eliminated by a lease provision. Because New Gold had not met the required burden to establish mootness, the court found that it had no basis at that stage to dismiss the ADA claim against New Gold.

Next Steps and Disposition

Chief Judge McMahon allowed the parties 60 days to conduct discovery about whether the premises, as reconstructed for the new tenant, complied with the ADA. The court invited New Gold to seek summary judgment if its ADA-compliance expert concluded that the premises complied. The court indicated that, if the federal claim against New Gold were later dismissed, it likely would not exercise supplemental jurisdiction over the related state and city claims.

The order therefore granted Empire Szechuan’s Rule 12(b)(1) motion and denied New Gold Equities Corp.’s Rule 12(b)(1) motion. The opinion does not provide the case docket number or the judge’s full first and middle names.