Calcano v. The Finish Line, Inc.

Background

Marcos Calcano sued The Finish Line, Inc. on behalf of himself and other similarly situated people. He alleged violations of Title III of the Americans with Disabilities Act (ADA), the New York State Human Rights Law, and the New York City Human Rights Law. Calcano alleged that he is legally blind, uses Braille, and called Finish Line’s customer service center to ask about buying a gift card containing Braille. According to the amended complaint, Finish Line told him that it did not sell Braille gift cards and did not offer an alternative aid for buying them.

Calcano sought a permanent injunction requiring Finish Line to design, manufacture, and sell gift cards with auxiliary aids for blind and visually impaired customers. Finish Line moved to dismiss the amended complaint.

Standing

The court first addressed standing, meaning whether Calcano had shown a sufficient personal injury and a realistic need for the requested injunction. The court concluded that Calcano adequately alleged that he encountered an accessibility barrier and that Finish Line did not plan to begin selling Braille gift cards. But the court found that he did not provide enough specific facts showing that he intended to return to Finish Line. His allegation that he intended to immediately buy a Braille gift card once one became available was, in the court’s view, a generic and conclusory statement.

The court also stated that Calcano’s state and city human-rights claims were governed by the same federal standing standards. Because he lacked standing for the federal claim, the court said it would decline to exercise supplemental jurisdiction—the court’s authority to hear related state-law claims—over the state and city claims.

Failure to State an ADA Claim

The court separately held that Calcano failed to state a legally recognized ADA claim even if he had standing. It rejected his arguments that gift cards were services requiring accessibility aids or were similar to websites, which the court described as places of public accommodation. The court held that gift cards are goods, not places of public accommodation, and that Title III of the ADA does not require a retailer to change its inventory to include accessible versions of goods.

The court also considered Calcano’s argument that Finish Line denied him equal access by failing to provide Braille. It explained that public accommodations have flexibility in choosing the auxiliary aid or service that provides effective communication. Because Calcano had not tried to find out whether Finish Line could provide another auxiliary aid or service, the court found that he had not plausibly alleged that Finish Line failed to offer alternative assistance.

Disposition

The court granted Finish Line’s motion to dismiss. It allowed Calcano to file a second amended complaint, if he chose to do so, by November 9, 2020. If he did not file one by that date, the Clerk was directed to enter a final judgment of dismissal and terminate the case. The opinion does not state that the dismissal was with or without prejudice.