The SDNY in a recent decision entitled Gannon v. Hua Da, Inc., 2023 U.S. Dist. LEXIS 53172 (SDNY 2023), reinforced the importance of establishing standing under the ADA. To show standing, plaintiffs must demonstrate that they have suffered an injury under the ADA, that there is a real and immediate threat of future injury, and that they intend to return to the subject location. Failure to establish any of these elements can result in a case being dismissed, as it was in this case. It also highlights the need for courts to consider the broader context of cases to ensure that litigants are not abusing the ADA to pursue frivolous litigation.
In this case, the plaintiff sued the defendant under Title III of the ADA, alleging that he was unable to access a deli/grocery due to barriers that violated the ADA. The defendant filed a motion to dismiss the case for lack of standing, arguing that the plaintiff failed to show that he had the intent to return to the subject location, which is an essential requirement for standing under the ADA. The court granted the motion to dismiss.
The court relied on the three-prong test laid out in Calcano v. Swarovski N. Am. Ltd. to determine whether the plaintiff had standing. The plaintiff must show (1) past injury under the ADA, (2) it is reasonable to infer that the discriminatory treatment would continue, and (3) it is reasonable to infer that the plaintiff intended to return to the subject location. The court concluded that the plaintiff failed to show the third prong, i.e., he lacked the intent to return.
The court found that the plaintiff's allegations were insufficient to establish that he intended to return to the subject location. The court noted that the plaintiff did not provide any evidence that he had visited the premises in the past, and he did not explain why he wanted to visit the specific deli/grocery urgently. Additionally, the plaintiff did not allege that he resided in close proximity to the property, which would have suggested that he would return to the location.
The court also considered the "broader context" of the case. It noted that the plaintiff had filed 26 identical ADA lawsuits within two months, which suggested that the plaintiff was not genuinely interested in accessing the deli/grocery but instead was using the ADA to pursue litigation.