Velasquez v. Kiner's Corner LLC

Background

Ricardo Velasquez brought claims under the Americans with Disabilities Act, the New York City Human Rights Law, and the New York State Human Rights Law. He alleged that he uses a wheelchair and was denied full and equal access to a restaurant that was not wheelchair accessible. The opinion also states that the complaint identified several entities or people whose relationships to the property and lawsuit were unclear, including Kiner’s Corner LLC doing business as Two Boots Hell’s Kitchen, George Papadopoulos, PGGS Gourmet, Inc., Partnership 92 West, L.P., and City Pizza.

At an initial pretrial conference, defense counsel told the court that the corporate defendant named in the caption was incorrect and that City Pizza had replaced Two Boots Hell’s Kitchen at the premises. The court allowed Velasquez to amend the complaint to name the proper parties and ordered defense counsel to provide leases for the current and former tenants. Defense counsel later said the leases could not be found.

Motion to Compel

The court granted Velasquez’s motion to compel. It ordered the defendant to provide the leases within twenty days. If the leases could not be located, a defendant’s principal had to submit an affidavit stating that all relevant locations had been searched, listing the people asked and locations searched, and identifying who occupied the premises, when, and under what agreement. If the leases were oral, a principal had to confirm that under oath and identify the people with whom the oral agreements were made.

If no leases could be produced, the defendant instead had to provide information identifying the past and present tenants, including their names and addresses, or the name and address of someone who had that information and could be deposed. The defendant also had to provide the names and addresses of all members of Kiner’s Corner LLC, a managerial contact for City Pizza, and the bookkeeper or accountant who prepared the defendant enterprise’s records or tax returns.

The court extended the deadline for amending the complaint to December 4, 2020, so Velasquez could conduct discovery needed to identify the proper corporate defendant or defendants.

Sanctions and Fees

The court denied the motion for sanctions without prejudice to renewal. It explained that a court cannot require production of documents that do not exist, and that the record did not establish whether the leases existed. The court stated that sanctions could be sought again if the defendant failed to provide the leases or other information that would allow Velasquez to identify the correct entities to sue. The court also denied Velasquez’s requests for costs, expenses, and attorney’s fees.

Disposition

The court granted the motion to compel, denied the sanctions motion, and ordered the defendant to provide the leases or an authorized alternative within twenty days, ending November 7, 2020. The Clerk was directed to remove the motions at Docket Number 33 from the list of open motions.