Antolini v. Thurman

Background

Dino Antolini moved under Rules 34 and 37 of the Federal Rules of Civil Procedure to compel a site inspection of property at 82–88 Fulton Street, New York, New York. His request sought entry for himself and his expert to inspect alleged access barriers, including businesses covered by the Americans with Disabilities Act as public accommodations.

The defendants objected that Antolini and his counsel already had access to the exterior stairs identified in the complaint. They also argued that they did not have authority or permission over public accommodations controlled by other parties. In a supplemental response, the defendants stated that the landlord lacked keys to the retail stores, the leases did not allow access by third parties without permission, and the store tenants had not affirmatively granted permission. The plaintiff argued that the lease allowed the inspection and that the defendants possessed or controlled the property.

Legal standard

Rule 34 allows a party to request entry onto land or other property possessed or controlled by another party for inspection and related purposes. Rule 37 allows a party to ask the court to compel discovery. The court also cited the rule that, once an ADA plaintiff establishes standing concerning one barrier at a public accommodation, the plaintiff may challenge other barriers on the premises that affect the plaintiff’s disability.

Court’s analysis

The court found that the requested inspection was relevant and proportional to the needs of the case. It overruled as meritless the defendants’ objection that Antolini’s inspection was limited to the exterior stairs. The court relied on the cited ADA precedent concerning inspection and challenges to other barriers on the premises.

The court also noted that 33 BRE Inc. admitted in its answer that it was the owner, lessee, or operator of the building at issue. Although the defendants relied on the lease to argue that they could not allow third-party access, they did not submit the lease. The court further stated that legal conclusions about the lease in a declaration by Brad Thurman were improper. It overruled as meritless and unsupported by evidence the defendants’ objection that they lacked authority or permission over public accommodations controlled by others.

Disposition

Judge Kevin Nathaniel Fox granted Antolini’s motion to compel the defendants to allow a site inspection, including inspection by his expert. The defendants were ordered to permit inspection of their entire property at 82–88 Fulton Street on or before October 23, 2020.