Keung v. Patisseries Saines Corp.

Background

Lin Kwok Keung sued Patisseries Saines Corp., the entity operating a Tous Les Jours bakery on Division Street in Manhattan, and 7 Wu Real Estate Ltd., the property’s lessor. Keung alleged that he has a qualifying disability under the Americans with Disabilities Act (ADA) and uses a wheelchair. He claimed that he visited the bakery but was denied full and equal access and enjoyment of its facilities.

The complaints identified six alleged ADA violations: an inaccessible entrance because of a step without a compliant ramp or lift; an unsafe or inaccessible exit; an overly high dining counter; merchandise placed beyond accessible reach ranges; inadequate directional and informational signs; and inadequate signs identifying accessible services. Keung also sought relief under New York State and New York City law.

After the defendants indicated that they intended to seek dismissal based largely on standing—the legal requirement that a plaintiff have a sufficient personal connection to the dispute—Keung amended his complaint to add allegations about his residence and his visit to the bakery. The Court later set a schedule for a proposed motion to dismiss. Five days after that schedule was issued, and nearly a month before the motion was due, Keung filed a notice voluntarily dismissing the action. Because the defendants had not filed an answer or a motion for summary judgment, the case ended without a court order.

Sanctions Motion

The defendants then sought sanctions against Keung’s attorney, Ben-Zion Bradley Weitz, under 28 U.S.C. § 1927 and the Court’s inherent authority. Section 1927 permits sanctions when an attorney unreasonably and vexatiously multiplies court proceedings. The Court’s inherent authority also permits sanctions for conduct undertaken in bad faith, for harassment, or for oppressive reasons.

The Court explained that sanctions under either authority require specific factual support showing both that the claim lacked a legally and factually supportable basis and that it was brought in bad faith or for an improper purpose. A claim is “colorable” when a reasonable attorney and plaintiff could reasonably believe that supporting facts might be established, even if the facts were not ultimately proven.

The defendants argued that Weitz should have known Keung lacked standing under recent decisions addressing standing in ADA cases, including the need to show a sufficiently real and immediate likelihood of future harm. They also relied on the large number of other ADA cases filed by Keung and Weitz, most of which, according to the defendants, ended in settlements. The defendants characterized the complaints as repetitive and alleged that the litigation was abusive.

Weitz responded that Keung had actually visited the bakery and encountered a step that prevented access. He said Keung voluntarily dismissed the case partly because recent decisions made it more difficult to establish standing, especially the intent to return to the bakery, and partly because Keung became apprehensive about a deposition in light of worsening health problems.

Court’s Analysis

The Court found reason to believe that the original and amended complaints asserted colorable ADA claims. The complaints identified six specific alleged violations and cited the relevant regulations. The Court also noted that defense counsel had acknowledged during a court conference that the bakery’s entrance had a step, although counsel characterized any access barrier as minimal.

The Court recognized that, under some approaches used by other judges, Keung might have lacked standing. But the Court stated that the law governing ADA standing in the circuit was still developing and that one of the defendants’ most factually similar decisions had been issued after Keung filed his amended complaint. The Court therefore declined to find bad faith merely because the defendants argued that Keung lacked standing.

The Court also emphasized that the voluntary dismissal happened before either defendant answered, before any motion to dismiss was filed, before any settlement conference or mediation, and before discovery. The notice was filed only five days after the briefing schedule was set and almost four weeks before the defendants’ proposed motion was due. The Court found no unreasonable delay that would have forced the defendants to incur substantial litigation costs.

Finally, the Court rejected the defendants’ effort to infer vexatious conduct from Keung and Weitz’s numerous prior ADA lawsuits. The defendants provided no information about the merits of those earlier cases and showed mainly that most had settled. The Court held that the number of prior lawsuits and their settlements did not, by themselves, establish vexatious litigation or bad faith.

Disposition

Judge John P. Cronan denied the defendants’ motion for sanctions against Weitz under Section 1927 and the Court’s inherent authority. The Clerk of Court was directed to close the motion on the docket. The opinion did not decide whether Keung ultimately had standing or whether the bakery violated the ADA, because the underlying action had ended before the proposed motion to dismiss was filed.