As noted in a recent article published by Ansell.Law Partner Seth M. Rosenstein, nuisance Americans with Disabilities Act (ADA) cases have cost American businesses millions of dollars, and settlement is often the path of least resistance. It is often the case that an aggressive defense of the claims – particularly when the claims are frivolous – benefits both the business or property owner defending the action, as well as the greater community, by deterring vexatious litigation primarily focused on lining counsel’s pockets.
In one particularly egregious ADA case, the plaintiff claimed that he traveled from Lower Manhattan to Midtown for the purpose of having a document notarized — and that he was unable to access the defendant’s building as a result of a single, small step from the sidewalk. The plaintiff conveniently ignored numerous issues with his case, particularly those stemming from a dearth of facts and crucial information from his cookie-cutter complaint. This is hardly surprising as plaintiffs in ADA cases often profit from the sheer number of cases filed, and the complaints filed in these actions tend to be identical to one another.
The Ansell.Law team aggressively defended this action, and after reviewing the extensive and meticulously detailed moving papers drafted by Rosenstein, the Honorable Lorna G. Schofield of the United States District Court for the Southern District of New York questioned the “tester” plaintiff’s intent to return to the subject property and found that he had “not shown a sufficiently concrete intent to return under the heightened standard” of the Second Circuit’s standard set in Calcano v. Swarovski North America. Put another way, the court rejected the plaintiff’s laughable assertion that he (i) traveled to Midtown Manhattan to notarize a document, (ii) frequently needs documents notarized or has a specific document requiring notarization in the future, and (iii) intended to return to Midtown Manhattan for notarization services in the future. The property owner could have rolled over and negotiated a settlement of questionable claims, but instead, it elected to fight – and ADA plaintiffs will think twice before bringing an action against the owner in the future.
If you or your business have been named as defendants in an ADA case, please contact Ansell.Law Partner Seth M. Rosenstein to discuss the path forward.
