Case Information
US Dist. Ct., SDNY, Docket No. 1:24 cv. 009208 (AT) Page 2 of 3
Deposit Ins. Corp ., 310 F. Supp 2d 582, 587 (S.D.N.Y. 2004). Magistrate Judge Cott continued in Yan Ping :
The Second Circuit has held that in order to establish standing in the ADA context, a plaintiff must satisfy three requirements: "(1) the plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff's visits and the proximity of defendants' [businesses] to plaintiff's home, that plaintiff intended to return to the subject location." Calcano v. Swarovski N. Am. Ltd ., 36 F.4th 68, 74 (2d Cir. 2022) (quoting Kreisler v. Second Ave. Diner Corp. , 731 F.3d 184, 187-88 (2d Cir. 2013). Finally, Mag. Judge Cott noted: In order to satisfy the third factor, it is not sufficient simply to plead the "magic words" that the plaintiff "intends [*5] to return"; rather, the plaintiff must plausibly allege "a real and immediate threat of future injury." Id. at 74-75 (citation omitted). The "material risk of future harm" must be "sufficiently imminent and substantial." Finally, as previously noted, in Calcano , it was held: “We cannot ignore the broader context of Plaintiffs' transparent cut-and-paste and fill-in-the- blank pleadings. The … Plaintiffs before us filed eighty-one of over 200 essentially carbon- copy complaints between October and December 2019. All of the complaints use identical language to state the same conclusory allegations. Of the roughly 6,300 words in Calcano's complaint against Swarovski, for example, only 26 words—consisting of party names, dates, and Defendants' office addresses and states of incorporation—are different from Dominguez's complaint against Banana Republic. ….This backdrop of Plaintiffs' Mad-Libs-style complaints further confirms the implausibility of their claims of injury. Calcano , 36 F. 4 th at 77 - 78. In the present case, Plaintiff’s complaint presents only conclusory, boilerplate “magic words”
in reference to the requirements to establish standing in an ADA case. Plaintiff does not establish proximity to the location sued, nor any history of past visits, or any facts that would establish an intent to return to patronize the location.
To quote/paraphrase SDNY District Judge Furman in Gannon v. Hua Da, Inc ., 2023 U.S. Dist. LEXIS 53172 (SDNY 2023): [Plaintiff] fails to explain "what is distinctive about" Defendants' [Japanese Restaurant] [1] — one of literally thousands on the island of Manhattan — or "why he wants to" visit the place
US Dist. Ct., SDNY, Docket No. 1:24 cv. 009208 (AT) Page 3 of 3
"'so urgently' that he intends to do so immediately upon the removal of the alleged barriers." Id. Absent "such additional allegations," the Court "is unable to draw an inference that he would return to the Premises in the future" and must dismiss his ADA claims for lack of subject-matter jurisdiction. [2] Based on the above, it is submitted that Defendants have a strong likelihood of success to
prevail on their motion to dismiss. It is therefore requested that the Court adjourn or suspend the obligation to proceed with a case management plan and expensive discovery until after the Court rules on Defendants’ motion to dismiss.
Note finally that pursuant to this Court’s individual rules, I e-mailed Plaintiff’s counsel last night to request his consent to this application and he declined to consent, stating “we do not consent to your stay/adjournment application as we intend to timely prosecute this matter, and there is no issue with Plaintiff’s standing”.
Based on the above, it is therefore requested that Defendants’ application to stay or adjourn the parties’ deadline to submit a joint letter and case management plan be granted. Thanking your Honor for your consideration, I am, Respectfully, Morton S. Minsley
MSM: mm Enc. cc.: Bradley Weitz, Esq. Attorney for Plaintiff (VIA ECF)
DENIED. By April 18, 2025 , the parties shall file their joint letter and jointly proposed case management plan.
SO ORDERED.
Dated: April 15, 2025
New York, New York
NOTES
[1] In Hua Da, the location sued was a deli/grocery. But the same rationale applies to the present case. In fact, Plaintiff’s letter opposing Defendants’ application for leave to file the motion to dismiss attaches google maps printout of an unlikely journey up the FDR Drive from the Brooklyn Bridge to midtown Manhattan, certainly bypassing numerous similar Japanese Restaurants in the process, to access a restaurant which, according to Plaintiff’s complaint, he has never actually dined at or patronized.