Doncouse v. Matto MGMT NY LLC

Background

Graciela Doncouse filed a proposed class action under Title III of the Americans with Disabilities Act, alleging that the defendants owned or operated nine locations in New York City that violated the statute. Discovery had been underway for about one year and was scheduled to close on June 16, 2020.

Doncouse asked the defendants to supplement their answers to interrogatories and document requests. At a May 19, 2020 discovery conference, the court ordered written responses concerning two locations that Doncouse had personally visited: 16 W 17th Street and 153 W 27th Street. The court reserved its ruling on discovery about the other locations, which Doncouse had not personally visited.

Court’s analysis

Doncouse argued that she could seek discovery about every location because of the “futile gesture” doctrine. That doctrine can recognize an Americans with Disabilities Act injury when a person has actual knowledge of an accessibility barrier and was deterred from visiting the property because of it. A person does not necessarily have to visit the property if she otherwise encounters the alleged violation, but there must also be a reasonable basis to infer that she intended to return.

The complaint did not explain how Doncouse learned about the alleged barriers at each of the nine locations. At the discovery conference, she said she had personally visited only the two locations already covered by the court’s earlier order. She generally stated that she had called businesses at some other locations and learned about possible barriers, including inaccessible restrooms, shelves, and checkout counters. For certain locations, however, she admitted that she had not personally encountered any barriers.

Because the requested documents were limited, the court permitted discovery about any location where Doncouse had personally encountered a barrier and expressed an intent to visit in the future, even if she had not physically visited that location.

Ruling

Magistrate Judge Sarah Netburn granted in part and denied in part Doncouse’s request for discovery concerning the remaining locations. The defendants were ordered to provide written discovery responses for all locations where Doncouse had encountered a barrier and expressed an intent to visit in the future. The court set July 30, 2020, as the deadline for completing discovery.

Note on the judge

The opinion text identifies Sarah Netburn as the United States Magistrate Judge issuing the order, although the supplied case metadata identifies Analisa Torres as the judge.