Meisner v. 607 10th Ave Properties LLC

Background

Amy Meisner, who uses a motorized wheelchair, sued 607 10th Avenue Properties LLC and other defendants. The case concerns alleged architectural barriers to wheelchair access at a Manhattan building and its restaurant space. Meisner asserted claims under the Americans with Disabilities Act, New York law, and New York City law. A jury trial was scheduled to begin on May 20, 2024.

The defendants identified Yakov Cohen and Jacob Kaner as witnesses in the joint pretrial order. They said Cohen would testify about the lessor’s operations and good-faith efforts to comply with disability-access requirements, and that Kaner would testify about accessibility training and compliance. The defendants’ pretrial memorandum also stated that their architect would testify that the restaurant complied with applicable accessibility laws and that additional modifications would be structurally infeasible because of the building’s age and layout.

Motion and Analysis

Meisner moved to exclude Kaner’s testimony, arguing that he had not been disclosed during discovery as required by Federal Rule of Civil Procedure 26. Rule 26 requires disclosure of witnesses and, for expert witnesses, a report describing their opinions and the basis for those opinions. Rule 37 generally bars a party from using a witness at trial when the party failed to make the required disclosure, unless the failure was substantially justified or harmless.

The court found that the defendants’ interrogatory responses adequately disclosed Kaner as a potential fact witness. Those responses identified him as someone who had provided accessibility training, performed or proposed work at the premises, or communicated with the defendants about accessibility. But the record did not show that Kaner had been disclosed as an expert or had provided an expert report. The defendants also stated that he would not testify as an expert.

The court nevertheless concluded that the testimony described in the defendants’ pretrial submissions was expert testimony. Opinions about whether the premises complied with accessibility laws, whether further modifications were structurally infeasible, and the cost of those modifications require specialized knowledge. Because Kaner had not been disclosed as an expert, he could not give those opinions as a fact witness.

Permitted Testimony

The court identified a narrow subject on which Kaner could testify as a fact witness. Meisner sought punitive damages under the New York City Human Rights Law, and the defendants argued that they acted in good faith by promptly consulting an architect. Kaner could testify that the defendants retained him in response to Meisner’s allegations and about other facts concerning the defendants’ good faith that he personally observed.

The court stated that good faith was relevant only to the amount of any New York City Human Rights Law penalty, not to liability under the Americans with Disabilities Act or Meisner’s other claims. Kaner could not testify about his opinions, the contents of advice he gave concerning legal compliance, or the costs or feasibility of modifications. The defendants also could not have Cohen testify about the contents of Kaner’s advice because that testimony would be hearsay.

Disposition

The court granted in part Meisner’s motion to exclude Kaner’s testimony. Kaner could not offer expert testimony, including testimony about compliance with accessibility standards or the cost and structural feasibility of additional modifications. He could testify only as a fact witness about the defendants’ good-faith efforts to address access barriers, and only to the extent he had personal knowledge of those matters. The clerk was directed to close the motion.