15‐785
Richard Howard Bernstein v. City of New York
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY
ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF
APPELLATE PROCEDURE 32.1 AND THIS COURT=S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL
APPENDIX OR AN ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY
CITING TO A SUMMARY ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY
COUNSEL.
At a stated term of the United States Court of Appeals for the Second
Circuit, held at the Thurgood Marshall United States Courthouse, 40 Foley
Square, in the City of New York, on the 26th day of October, two thousand fifteen.
PRESENT: CHESTER J. STRAUB,
RICHARD C. WESLEY,
DEBRA ANN LIVINGSTON,
Circuit Judges.
_____________________________________
RICHARD HOWARD BERNSTEIN,
Plaintiff‐Appellant,
‐v.‐ 15‐785
CITY OF NEW YORK, NEW YORK CITY
DEPARTMENT OF TRANSPORATION
Defendants‐Appellees.
_____________________________________
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FOR APPELLANT: ALI W. CHARARA, The Sam Bernstein Law
Firm, Farmington Hills, MI.
FOR APPELLEES: ZACHARY W. CARTER (Fay Ng, Marta Ross,
on the brief), Corporation Counsel of the City of
New York, NY.
Appeal from the United States District Court for Southern District of New
York (McMahon, J.).
UPON DUE CONSIDERATION, IT IS HEREBY ORDERED,
ADJUDGED AND DECREED that the District Court’s order granting the
Defendants’ motion to dismiss is VACATED and REMANDED.
Plaintiff‐Appellant Richard Howard Bernstein (“Bernstein”) appeals from
an order of the United States District Court for the Southern District of New York
(Colleen McMahon, J.), entered on February 20, 2015. The district court adopted
as its opinion the Report and Recommendation of Magistrate Judge Sarah
Netburn, granting Defendants‐Appellees City of New York and the New York
City Department of Transportation (collectively, “the City”)’s motion to dismiss
for lack of standing. The district court did not address the City’s motion to
dismiss Bernstein’s amended complaint for failure to state a claim.
Bernstein seeks declaratory and injunctive relief for the City’s alleged
failure to comply with the Americans with Disabilities Act of 1990, (“ADA”), 42
2
U.S.C. 12101 et seq., and the Rehabilitation Act of 1973, 29 U.S.C. 794, et seq.,
based on various alleged violations preventing him, a blind person, and others
similarly situated from gaining “equal or reasonable access” to Central Park. We
assume the parties’ familiarity with the additional underlying facts, the
procedural history, and the issues presented for review, which we reference only
as necessary to explain our decision to vacate and remand.
1. Standing
We review “de novo a judgment of dismissal pursuant to Fed. R. Civ. P.
12(b)(6), assuming all facts alleged within the four corners of the complaint to be
true, and drawing all reasonable inferences in plaintiffʹs favor.”1 Interpharm, Inc.
v. Wells Fargo Bank, Nat. Assʹn, 655 F.3d 136, 141 (2d Cir. 2011). To satisfy
constitutional standing requirements, a plaintiff must prove: (1) injury in fact,
which must be (a) concrete and particularized, and (b) actual or imminent; (2) a
causal connection between the injury and the defendant’s conduct; and (3) that
1 We note that the City moved to dismiss Bernstein’s amended complaint under Fed. R.
Civ. P. 12(b)(6) “for failure to state a claim upon which relief can be granted, and for
lack of standing.” App. 46. This Court has recognized “that dismissals for lack of
standing may be made pursuant to Fed. R. Civ. P. 12(b)(6).” Rent Stabilization Assʹn of
City of New York v. Dinkins, 5 F.3d 591, 594 (2d Cir. 1993). Accordingly, we consider the
City’s dismissal for lack of standing pursuant to Fed. R. Civ. P. 12(b)(6), rather than
construing the motion to dismiss for lack of standing to fall under Fed. R. Civ. P.
12(b)(1).
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the injury is likely to be redressed by a favorable decision. See Lujan v. Defenders
of Wildlife, 504 U.S. 555, 560–61 (1992). Plaintiffs seeking injunctive relief must
also prove that the identified injury in fact presents a “real and immediate threat
of future injury,” often termed “a likelihood of future harm.” Shain v. Ellison, 356
F.3d 211, 215–16 (2d Cir. 2004).
Therefore, we have found standing in ADA suits seeking injunctive relief,
“where (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 plaintiffʹs visits and the
proximity of defendants’ [services] to plaintiff’s home, that plaintiff intended to
return to the subject location.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184,
187–88 (2d Cir. 2013) (per curiam), cert. denied, 134 S. Ct. 2295 (2014); see also
Camarillo v. Carrols Corp., 518 F.3d 153, 158 (2d Cir. 2008) (per curiam). Applying
this standard in Camarillo, for example, we found standing where (1) defendants
had failed to effectively communicate menu items to the legally blind plaintiff—
an alleged ADA violation, (2) this discriminatory treatment was likely to
continue, and (3) the plaintiff’s past visits and proximity to the restaurant made it
reasonable to infer her intent to return. See Camarillo, 518 F.3d at 158.
4
While Bernstein’s amended complaint is certainly broad, it includes two
categories of concrete factual allegations in support of his claim that the City has
denied him and others similarly situated “equal or reasonable access” to the
Park, in violation of the ADA and the Rehabilitation Act. First, the amended
complaint includes a list of allegedly violative conditions. For example, the
amended complaint alleges that the City “[f]ail[ed]to provide signage at all
inaccessible entrances to each of its facilities, directing users to an accessible
entrance or to a location at which they can obtain information about accessible
facilities in violation of 28 CFR 35.163(b).” Am. Compl. ¶3(k).
Second, the amended complaint and attached expert report2 describe
particular instances of the Park’s alleged inaccessibility. The complaint explains
how these alleged violations deny blind individuals “reasonable” access to the
Park, alleges that Bernstein has personally experienced these violations, and
describes how Bernstein has been personally harmed by the violations as a result
of his blindness. For instance, Bernstein’s amended complaint alleges that “[d]ue
to the missing detectable warnings at crosswalks, Plaintiff is unable to perceive
that he is nearing a roadway with moving traffic. Accordingly, Plaintiff is unable
We may consider “documents attached to the complaint as an exhibit” in assessing a
2
motion to dismiss. Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993).
5
to cross any streets in the Park without the assistance of able‐sited [sic]
individuals, and has been forced to rely on the kindness of strangers to get across
the streets on several occasions.” Am. Compl. ¶20(e). Bernstein further alleges
that “[a]s a result of these violations, Plaintiff cannot safely enter Central Park on
his own, and upon several attempts, has been stranded and forced to rely on the
kindness of strangers to cross streets, pathways, or ramps in the Park.” Am.
Compl. ¶20(g). These allegations—though not a model of specificity—
sufficiently allege not just generalized injury, but injury personal to Bernstein.3
Our decisions in Kreisler and Camarillo lend support to Bernstein’s standing
to pursue this claim. First, Bernstein has alleged past injury under the ADA
(namely, that he was denied “equal or reasonable access to Central Park” due to
its failure to comply with the ADA and the Rehabilitation Act). Second, it is
3 The amended complaint also includes a description of an alleged incident in which
Bernstein was struck by a bicycle while attempting to walk in a path in the Park. Am.
Compl. ¶15. Bernstein alleges in his complaint that “[t]his incident was a direct and
proximate result of the City’s failure to bring the Park in compliance with the ADA.
Specifically, had the City followed the communication, signage, and other requirements
of the ADA listed above, this incident would have been avoided.” Am. Compl. ¶16.
Bernstein provides no details about the accident other than that it occurred on a
“pedestrian path in Central Park” on August 13, 2012. Am. Compl. ¶15. For this
incident to be relevant to our standing analysis, Bernstein would have to allege facts
sufficient to suggest, as he alleges, that ADA violations denying blind individuals
“reasonable,” or meaningful, access to the Park in fact caused this accident. We thus
find the allegation that ADA violations cause Bernstein’s biking accident overly
conclusory to contribute to our analysis.
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reasonable to infer from Bernstein’s amended complaint that the alleged
violations—including the allegedly violative conditions in Bernstein’s amended
complaint and the attached expert report—will continue.
However, we cannot yet infer intent to return from Bernstein’s complaint.
Bernstein alleges only that he has visited New York “approximately 30 times per
year, for over 10 years,” and that he has made “hundreds of visits to Central
Park.”4 As noted above, past frequency of visits is a key factor in determining
intent to return. See Kreisler, 731 F.3d at 187–88; Camarillo, 518 F.3d at 158. Yet
the complaint does not provide any information regarding Bernstein’s intent to
return to the Park in the future, despite being given the opportunity to do so by
the district court.5
4 The concluded that the frequency of Bernstein’s alleged visits to New York City and
the Park were “facially implausible.” App. 98. We disagree. Because we must
“assum[e] all facts alleged within the four corners of the complaint to be true, and
draw[] all reasonable inferences in plaintiffʹs favor,” we find the frequency of
Bernstein’s visits plausible. See Interpharm, 655 F.3d at 141.
5 On June 24, 2014, the district court granted Bernstein’s motion for leave to amend. The
district court instructed Bernstein to address the pleading defects identified by the City,
and noted that no further opportunities to amend the complaint would be provided
should the City file a second motion to dismiss.
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Accordingly, we remand this issue for further fact‐finding.6 We note,
however, that the location of Bernstein’s home in Birmingham, Michigan is not
determinative to his ability to establish intent to return to the Park. Intent to
return is a highly fact‐sensitive inquiry that incorporates a range of factors
including not only the proximity of the defendant’s services, programs, or
activities to the plaintiff’s home and the frequency of the plaintiff’s past visits, see
Kreisler, 731 F.3d at 187–88; Camarillo, 518 F.3d at 158, but also other factors
relevant to the calculation of the plaintiff’s intent to return such as occupation or
demonstrated travel habits.
2. Failure to State a Claim
The City also argues that we should affirm the judgment below on the
alternate ground that Bernstein’s amended complaint fails to state a claim upon
which relief can be granted under Fed. R. Civ. P. 12(b)(6). Because the district
court did not address this alternate ground for dismissal, we remand this motion
for consideration. We do note, however, that Bernstein’s amended complaint
advances the incorrect standard for the City’s alleged ADA violation.
6 See Warth v. Seldin, 422 U.S. 490, 501 (1975) (“[I]t is within the trial courtʹs power to
allow or to require the plaintiff to supply, by amendment to the complaint or by
affidavits, further particularized allegations of fact deemed supportive of plaintiffʹs
standing.”).
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Specifically, Bernstein asserts that the City has violated Section 504 of the
Rehabilitation Act and Title II of the ADA. “Section 504 of the Rehabilitation Act
‘prohibits programs and activities receiving federal financial assistance from
excluding, denying benefits to, or discriminating against otherwise qualified’
individuals with a disability.” Disabled in Action v. Bd. of Elections in City of New
York, 752 F.3d 189, 196 (2d Cir. 2014) (quoting 29 U.S.C. § 794(a)). Title II of the
ADA provides that “no qualified individual with a disability shall, by reason of
such disability, be excluded from participation in or be denied the benefits of the
services, programs, or activities of a public entity, or be subjected to
discrimination by any such entity.” 42 U.S.C. § 12132.
To establish a violation of Title II of the ADA or the Rehabilitation Act, “a
plaintiff must demonstrate that ‘(1) he is a qualified individual with a disability;
(2) the defendant is subject to one of the Acts; and (3) he was denied the
opportunity to participate in or benefit from the defendant’s services, programs,
or activities, or was otherwise discriminated against by the defendant because of
his disability.’” Disabled in Action, 752 F.3d at 196 (quoting McElwee v. Cnty. of
Orange, 700 F.3d 635, 640 (2d Cir. 2012)). Only the third element is in dispute
here.
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Title II and the Rehabilitation Act require only that entities make
“reasonable accommodations” to enable “meaningful access” to services,
programs, and activities. See Wright v. Giuliani, 230 F.3d 543, 548 (2d Cir. 2000)
(per curiam). At issue in the present case, therefore, is whether Bernstein was
denied meaningful access to the Park. Bernstein’s amended complaint thus
advances the improper standard in asserting that he cannot gain “equal access”,
“reasonable access,” or “equal or reasonable access” to the Park due to the
alleged ADA violations. That inadequacy, however, is not fatal.
For the foregoing reasons, the district courtʹs judgment is VACATED and
the case is REMANDED for further proceedings consistent with this order.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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