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502524/2025
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SUPREME COURT OF THE STATE OF NEW YORK

COUNTY OF KINGS

-----------------------------------------------------------------X
JASON CAMACHO,

Plaintiff, Index No. 502524/2025

v.

HORN AND HARDART INC.,

Defendant.
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MEMORANDUM OF LAW IN SUPPORT OF DEFENDANT’S MOTION TO DISMISS

PLAINTIFF’S COMPLAINT FOR FAILURE TO STATE A CAUSE OF ACTION AND
FOR LACK OF STANDING

Jordan LaVine, Esq.

(N.Y. Bar No. 5061932)
FLASTER/GREENBERG P.C.
295 Madison Avenue, 12th Floor
New York, NY 10017
[email protected]
215.279.9389
Attorney for Defendant

and

Charles J. Arena, Esq.

(Pro hac vice admission pending)
583 Skippack Pike, Suite 100
Blue Bell, PA 19422
[email protected]
215.540.0300
Attorney for Defendant
March 1, 2025

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TABLE OF CONTENTS

Preliminary Statement…………………………………………………………………………..…1

Statement of Facts…………………………………………………………………………………3

Argument………………………………………………………………………………………….8

1. Mr. Camacho Fails to Adequately Allege Standing…………………………………...8

2. Mr. Camacho Fails to Allege that Defendant Intended to Discriminate Against Him
Because of His Disability, Because He Does Not Allege that Defendant Had Notice of
His Disability, That He Requested an Accommodation, or that Requesting an
Accommodation Would Have Been Futile……………………………………..……10

A. Mr. Camacho Has Not Alleged a Discriminatory Motive, as Necessary for a

Disparate Treatment Claim………………………………………………….10
B. Mr. Camacho Has Not Alleged a Discriminatory Policy or Practice that
Defendant Refuses to Correct………………………………………………..13
C. Mr. Camacho Does Not Allege that a Request for Accommodation Would
Have Been Futile…………………………………………………………….15

3. Mr. Camacho’s Claims Should Also Fail Because Defendant Operates Only From its
Owners’ Residence and Does Not Offer a Place of Public Accommodation………...16

Conclusion……………………………………………………………………………………….18

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TABLE OF AUTHORITIES

Cases

219 Broadway Crop. v. Alexander’s, Inc., 46 N.Y.2d 506, 509 (1979)……………………………8

Athenaeum Blue & White (R.A.), Inc. v. American Studies Association, Inc., 173 A.D.3d 953, 101
N.Y.S.3d 430 (2019)………………………………………………………………………………2

Andrews v. Exceeding Expectations, Inc., Index No. 513301/2017, 2019 N.Y. Misc. LEXIS
49271 (King County 2024)……………………………………………………………….……….7

Castillo v. Hudson Theatre, LLC, 412 F. Supp. 3d 447, 451 (S.D.N.Y.

2019)…………………………………………………………………………………………11, 12

CIBC Bank & Tr. Co. (Cayman) Ltd. v. Credit Lyonnais, 270 A.D.2d 138, 138 (1st Dep’t 2000)..8

Dominski v. Frank Williams & Son, LLC, 46 A.D.3d 1443, 1444 (4th Dep’t 2007)……………...8

Erkan v. Hildago, 2025 U.S. Dist. LEXIS 10404, 2025 WL 253298 (E.D.N.Y. Jan. 21, 2025)….9

Hispanic Aids Forum v. Estate of Bruno, 16 Misc. 3d 960, 966 (Sup. Ct. N.Y. Cnty. 2007)…....12

Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992)………..1

Mejia v. High Brew Coffee, Inc., 2024 WL 4350912 (S.D.N.Y. Sept. 30, 2024)…………....passim

Pimentel v. Citibank, N.A., 29 A.D.3d 141, 148 (1st Dep’t 2006)………………………….……12

Roberman v. Alamo Drafthouse Cinemas Holdings, LLC, 67 Misc. 3d 182, 188 (Sup. Ct. Kings
Cnty. 2020)………………………………………………………………………………….……14

Rodriguez v. Bitchin, Inc., Index. No. 152619/2023, 2024 NY Slip Op 31560(U) (Sup. Ct. NY
County 2024)………………………………………………………………………………..passim

Rendon v. Berry Global Inc., 2023 U.S. Dist. LEXIS 93809 (S.D.N.Y. 2023)…………………...9

Shaywitz v. Am. Bd. of Psychiatry & Neurology, 848 F. Supp. 2d 460, 467 (S.D.N.Y. 2012)…...12

Sullivan v. Bdg Media, 71 Misc. 3d 863, 871 (Sup. Ct. N.Y. Cnty. 2021)………...……..11, 15, 18

Suris v. Crutchfield New Media, LLC, 2023 WL 3792512 (E.D.N.Y. June 2, 2023)……………...9

Winegard v. Golftec Intellectual Property, 674 F.Supp.3d 21 (E.D.N.Y. 2023)…………..…1, 2, 8

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Statutes

N.Y. Exec. Law § 290 et seq………………………………………………………………..passim

N.Y. Civ. Rights Law § 40-c et seq…………………………………………………………passim

N.Y.C. Admin. Code § 8-101 et seq…………………………………………………….…..passim

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Defendant Horn & Hardart Inc. (“Defendant” or “Horn & Hardart’”) respectfully submits

this memorandum of law, the Affirmation of David Arena (“Arena Aff.”), and the Affirmation of

Jordan LaVine (“LaVine Aff.”), in support of its motion to dismiss the complaint (“Complaint”)

of Jason Camacho (“Plaintiff” or “Mr. Camacho”) with prejudice pursuant to the New York Civil

Practice Law and Rules (“CPLR”) §§ 3211(a)(3) and (7) for lack of standing and failure to state

a cause of action.

PRELIMINARY STATEMENT

Mr. Camacho’s Complaint is one of over sixty (60) similar complaints that Mr. Camacho

has filed in New York against businesses around the country, asserting claims under the New

York State Human Rights Law (“NYSHRL”), the New York State Civil Rights Law

(“NYSCRL”), and the New York City Human Rights Law (“NYCHRL”) (collectively, the

“Disability Laws”), alleging that he was discriminated against as a visually-impaired individual,

because he tried to access the businesses’ websites and the websites were not sufficiently

accessible to him. 1

The Complaint should be dismissed for three reasons. First, Defendant submits that like

the plaintiff in Winegard v. Golftec Intellectual Property, 674 F.Supp.3d 21 (E.D.N.Y. 2023), Mr.

Camacho has no standing because he is a “serial filer,” who (even assuming that the allegations

in Mr. Camacho’s boilerplate Complaint are true) has not demonstrated any real interest in or

intent to buy Defendant’s products. See Winegard, 674 F.Supp.3d. at 25 (“To find standing on

1
Defendant attaches the results of a docket search, showing Mr. Camacho’s filings in the SDNY
and Kings County, as Exhibit A to the LaVine Aff. See Liberty Mut. Ins. Co. v. Rotches Pork
Packers, Inc., 969 F.2d 1384, 1388 (2d Cir. 1992) (“A court may take judicial notice of a
document filed in another court ‘not for the truth of the matters asserted in the other litigation,
but rather to establish the fact of such litigation and related filings.’” (quoting Kramer v. Time
Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)).

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the paltry allegations here would allow any sensory-impaired person to sit down at their

computer, visit 50 websites ... and bring 50 lawsuits. Standing requires more.”) When examining

the complaints that Mr. Camacho recently filed in this Court, which allege that Mr. Camacho

intended to purchase a wide array of different products from the defendants’ websites, all on the

same days, it is difficult not to reach the same conclusion that the court did in Winegard and

other cases:

It is hard to avoid the conclusion that these cases, instead of achieving greater accessibility
for disabled persons, instead settle for a nominal monetary recovery and what is likely an
equally nominal attorney’s fee without any involvement by the court. If that is what’s
happening, it amounts to a perversion of the ADA’s purpose and Congress’s intent. The Act
was never intended to turn a lofty and salutary mission into a fee-generating mill for some
lawyers to exploit the statutory scheme to see how many billable hours they could cram
into a case before it is either tried or settled. They do a disservice to the disabled, and to
the vast majority of lawyers who carry out their duties under the ADA with skill, dedication,
and professionalism. … I am not the first to describe this phenomenon as a scheme of
systematic extortion, designed to harass and intimidate business owners into agreeing to
cash settlements such that the means for enforcing the ADA (attorney’s fees) have become
more important and desirable than the end (accessibility for disabled individuals).

Id. at *7 (quotations omitted). See also Athenaeum Blue & White (R.A.), Inc. v. American Studies

Association, Inc., 173 A.D.3d 953, 101 N.Y.S.3d 430 (2019) (Dismissing NYCHRL and NYHRL

claims for lack of standing because plaintiff did not demonstrate an “injury in fact”). At no point

in the Complaint does Mr. Camacho allege that he was actually unable to purchase Defendant’s

coffee products due to his disability2; rather, Mr. Camacho alleges that he was “denied a

shopping experience similar to a sighted person,” (Complaint, ¶ 51), that the website was

“difficult and confusing to navigate” (¶ 58), and that he “intends to immediately return once the

2
Defendant’s understanding is that its coffee could have been purchased by Mr. Camacho or any
other visually impaired individuals at any time through the use of a screen-reader, like the one
Mr. Camacho allegedly used. Although the Complaint alleges that there was a pop-up window
that would not close, a broken hyperlink, and confusing elements on the website (see, e.g.,
Complaint, at ¶ 58), there is no allegation that these features were on the shopping page of the
website and specifically prevented Mr. Camacho from making a purchase.
2

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access barriers are removed.” (¶ 61). Mr. Camacho does not allege that he intends to return to

the website to make a purchase, or any facts demonstrating a real and particularized interest in

making a purchase. This is insufficient to establish that he suffered an injury in fact due to

Defendant’s website.

Second, Mr. Camacho’s Complaint fails to state a claim because Mr. Camacho does not

allege that he had any contact with Horn & Hardart at any time prior to filing the Complaint, that

Horn & Hardart knew of his disability, or that Mr. Camacho had reason to believe that reaching

out to request an accommodation would be futile. Therefore, Mr. Camacho cannot state a claim

that Horn & Hardart knew of his visual impairment, refused to provide him with reasonable

accommodations, and discriminated against him or treated him differently “because of” his

disability. See, e.g., Rodriguez v. Bitchin, Inc., Index. No. 152619/2023, 2024 NY Slip Op

31560(U) (Sup. Ct. NY County 2024), attached to LaVine Aff. as Exhibit B (granting defendant’s

motion to dismiss the same causes of action on the same ground).

Finally, although Mr. Camacho alleges that Horn & Hardart’s website is a “place of

public accommodation” under New York law, Horn & Hardart has no brick and mortar, physical

location. Currently, Horn & Hardart operates out of its owner’s home residence in Pennsylvania.

Horn & Hardart submits that consistent with the SDNY’s recent decision in Mejia v. High Brew

Coffee, Inc., No. 1:22cv3667, 2024 WL 4350912 (S.D.N.Y. Sept. 30, 2024), attached to LaVine

Aff. as Exhibit C, a small, online business that sells coffee solely through an online platform is

also not a “place of public accommodation” under the Disability Laws.

STATEMENT OF FACTS

Horn & Hardart began in 1888, opening an automat on Times Square in 1912, and

quickly becoming one of America’s most successful and well-known businesses. See Horn &

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Hardart Website Printout, attached to Affidavit of David Arena, as Exhibit A. Around its peak in

1952, there were 171 Horn & Hardart restaurants, automats, and retail shops in the United States,

serving over 750,000 people a day. Id. Horn & Hardart’s last automat, which was located at 200

East 42nd Street, shut down in 1991. Id. Around the same time, a history buff named David

Arena was born, who is a Pennsylvania resident and the current CEO of Horn & Hardart. Id.

In 2023, Mr. Arena purchased the rights to the Horn & Hardart trademarks and began

working to revive the business, shortly before the birth of his second child. Arena Aff., at ¶ 6.

Currently, the company is staffed by Mr. Arena and his extremely patient wife, who, occasionally

assisted by their preschooler and baby, ship out coffee from their home in Pennsylvania to fulfill

online orders. Id. at ¶ 2. Although he one day hopes to get enough funding to open another

automat at a brick-and-mortar location, currently, Horn & Hardart only operates from their

residence, which is not open to the public. Id. at ¶ 3. Horn & Hardart sells its products

exclusively through its website HornandHardart.com, but can also be readily contacted by phone,

text, email or through its social media accounts. Id. at ¶ 7.

Mr. Arena never heard of the plaintiff, Mr. Camacho, until Mr. Camacho filed this lawsuit

against Horn & Hardart. Id. at ¶ 8. Mr. Camacho alleges that he visited defendant’s website

(www.hornandhardart.com) on December 18, 2014 and December 24, 2024, to purchase

“automat pods”.3 See Complaint, ¶ 55. Mr. Camacho claims that certain “access barriers”

prevented him from making the purchase, including a pop-up screen that would not close

3
Although for the purpose of this motion, all of Plaintiff’s factual allegations are accepted as true
and not disputed here, Defendant notes that “automat pods” do not exist. An “automat” is a
cafeteria in which food and drink are distributed via a vending system. See Definition of
Automat, Ex. B to Arena Aff. Horn & Hardart sells coffee, including coffee that comes in pods
and bags, but does not sell “automat pods,” or coffee pods that go in anything but a standard
Keurig or K-cup coffee machine. Arena Aff., ¶ 5. This allegation betrays Plaintiff’s complete
lack of understanding of and interest in Defendant’s business.
4

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properly and “website elements missing alternative text.” Id. ¶ 56. As a result, and without

notifying Defendant of the alleged “access barriers,” or that Defendant was having technical

issues, Mr. Camacho filed this lawsuit alleging violations of NYSHRL, NYSCRL, and

NYCHRL.

Mr. Camacho apparently has a long history of filing lawsuits against small businesses

alleging that their websites are not accessible to the visually impaired. This action is one of

twelve (12) lawsuits recently filed in this court by Mr. Camacho against website owners. See

Website Dockets, Ex. A to LaVine Aff. Around the same time that Mr. Camacho was allegedly

visiting Defendant’s website, he was also allegedly visiting defendant Pharmacare US Inc.’s

website to purchase pharmaceutical products, defendant Fear of God, LLC’s website to purchase

clothing, defendant GN Audio USA, Inc.’s website to purchase earbuds, and defendant DLC

Laboratories, Inc.’s website to purchase products like anti-itch creams.

Prior to these filings, Mr. Camacho filed over fifty (50) similar complaints in the

Southern District of New York, alleging that businesses’ websites were non-complaint under the

Americans with Disabilities Act (“ADA”). Id. Threatening defendants with looming attorneys’

fees, Mr. Camacho was apparently able to extract quick settlements, but in late 2024, the

Southern District of New York put a stop to it when it ruled that websites alone were not a “place

of public accommodation” under the ADA. See Mejia v. High Brew Coffee, Inc., No.

1:22cv3667, 2024 WL 4350912 (S.D.N.Y. Sept. 30, 2024), attached to LaVine Aff. as Exhibit C.

In the SDNY, Mr. Camacho would no longer be able to argue that Horn & Hardart, operating

only from Mr. Arena’s home in Pennsylvania, is a place of public accommodation. Id. In

January 2025, Mr. Camacho moved his filings to state court. See Ex. A to LaVine Aff.

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However, New York state judges have also become frustrated with these types of serial

plaintiffs. In May 2024, Judge Ramseur ruled that plaintiffs who do not reach out to a business

before suing cannot plausibly support an inference of a defendant’s discriminatory motive and

cannot show that any request for an accommodation was made. Rodriguez v. Bitchin’, Inc., No.

152619/2023, 2024 NY Slip Op 31560(U) (Sup. Ct. NY County 2024) at *3. Had Mr. Camacho

reached out to Mr. Arena and said that he was having technical issues purchasing a product

through the Horn & Hardart website, Mr. Arena would have attempted to immediately rectify the

issue. Arena Aff., ¶ 10. Horn & Hardart wants its website to be fully accessible to everyone and

certainly does not want to lose prospective customers. Id. Had Mr. Camacho brought his

concerns to Defendant’s attention prior to commencing litigation, Defendant would have

resolved the matter expeditiously and probably sent him free coffee for his trouble. Id. at ¶ 11.

Before being served with the Complaint, Horn & Hardart had no knowledge suggesting

that its website might not be fully accessible to visually-impaired individuals. Horn & Hardart

had received no complaints (from Mr. Camacho or any others) and was not aware of any broken

hyperlinks, pop ups that would not close, and/or website elements missing text, as set alleged in

the Complaint. Id. at ¶ 12. The Website contains a contact form that can be used to contact Horn

& Hardart regarding any questions or issues, but Mr. Camacho never contacted Defendant. Id. at

¶ 13. Mr. Arena’s understanding was that the Website was legally compliant and accessible to

visually impaired persons with a screen reader. Id. at ¶ 14. The day he received Mr. Camacho’s

complaint, Mr. Arena did additional research into the issue and learned that there are no clear

legal requirements for what makes a website sufficiently accessible to the visually impaired.

Although the Complaint references adaptive technologies like JAWS and WCAG 2.1 guidelines,

those are guidelines, not laws, and the most a business owner can do is try to comply with

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guidelines and hope that he or she will not be sued. See Andrews v. Exceeding Expectations,

Inc., Index No. 513301/2017, 2019 N.Y. Misc. LEXIS 49271 (King County 2024) (“There is not

sufficient information in the record for this court to find that violation of the WCAG 2.0

Standards violates the ADA or any other discrimination statute as a matter of law.”)

Shortly after receiving the Complaint, just to ensure that the website was as accessible as

possible, Defendant purchased services from a vendor purporting to resolve any website

accessibility issues and to advertise a business’ ADA compliance – Accessibe.com, paying

approximately $1,500 for the annual subscription. Id. at ¶ 16. Defendant’s website now features

an “Accessibe” icon that advertises its website accessibility. Id. Defendant also did a manual

review of his website and, as an additional measure, scanned the website with a Google program

to ensure that it was fully accessible. Id.

Although Mr. Camacho’s Complaint summarily states that “Plaintiff intends to

immediately return to Defendant’s Website once the access barriers are removed” (Complaint, ¶

61), Defendant has no evidence that Mr. Camacho ever visited his website again or tried to make

a purchase from Defendant. Id. at ¶ 18-19. Mr. Camacho does not specifically allege any facts

that would indicate a real interest in Defendant’s business. The only alleged times that Mr.

Camacho visited the website were on two occasions around the time that Mr. Camacho was

preparing the complaints he filed in this Court – December 18 and December 24, 2024. At that

time, Mr. Camacho allegedly tried to purchase “automat pods”, although, as explained above,

that is not a product that exists. Id. There is no allegation by Mr. Camacho supporting the

conclusion that Mr. Camacho ever had a real intent to purchase any product from Defendant, or

that he ever intends to make a purchase. Rather, Mr. Camacho’s status as a serial plaintiff calls

into question whether he simply visited Defendant’s website to file another lawsuit.

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ARGUMENT

On a motion to dismiss for failure to state a cause of action pursuant to CPLR §

3211(a)(7), the complaint’s factual assertions are taken as true to determine whether the plaintiff

can succeed on any reasonable view of the facts. 219 Broadway Crop. v. Alexander’s, Inc., 46

N.Y.2d 506, 509 (1979). Legal conclusions, as well as factual statements contradicted by

documentary evidence, are not assumed to be true. CIBC Bank & Tr. Co. (Cayman) Ltd. v. Credit

Lyonnais, 270 A.D.2d 138, 138 (1st Dep’t 2000). Likewise, conclusory allegations lacking

factual support are not assumed to be true. Dominski v. Frank Williams & Son, LLC, 46 A.D.3d

1443, 1444 (4th Dep’t 2007).

1. Mr. Camacho Fails to Adequately Allege Standing.

Defendant submits that Mr. Camacho’s conclusory allegations about his two visits to

Defendant’s website are insufficient to establish standing to sue and that he suffered an injury in

this case. In Winegard v. Golftec Intellectual Property LLC, 674 F.Supp.3d 21 (E.D.N.Y. 2023),

where the plaintiff alleged that he couldn’t watch golf videos on the defendant’s website because

of a hearing disability, and alleged that he intended to visit the defendant’s website to watch golf

videos again, these types of conclusory allegations were insufficient to establish standing:

If plaintiff really wants to watch golf videos rather than bring lawsuits, this would not have
been a hard problem to fix. The Court is not going to suggest what would be adequate
allegations, but he could have set forth his golfing experience or what inspired him to start
learning now; named other golf instruction websites that he has successfully visited or
noted prior golf lessons he has taken; listed some of the courses he has played; or any other
facts that show he is, or, perhaps, wants to be a golfer. Anything like that would be far more
useful in establishing standing than the pages and pages of hornbook law and
citations…But it seems implausible that plaintiff can do even that. With 49 cases filed and
counting, the range of his interests would have to be unusually substantial, ranging from
industrial supplies to etiquette classes to robotics to freediving and spearfishing to
instructions for assembling a “Nashville Hot Chicken” kit he didn’t claim to have
purchased. Where a “tester plaintiff discovers and is offended by ADA violations on a
website, but that website has no actual, specific relevance to that particular plaintiff beyond

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the plaintiff's desire to seek out and remedy ADA violations, no concrete and particularized
injury has been alleged.”

Id. (quoting Laufer v. Dove Hess Holdings, No. 20-cv-00379, 2020 WL 7974268, at *11

(N.D.N.Y. Nov. 18, 2020). See also Rendon v. Berry Global Inc., 2023 U.S. Dist. LEXIS 93809

(S.D.N.Y. 2023) (Dismissing similar claims for lack of standing where Plaintiffs did not include

any facts that established a particularized interest in the defendant’s website or “explain why

Plaintiffs wish to return to the website as soon as the barriers are lifted, or specify when they plan

to return to Defendant’s website.”); Suris v. Crutchfield New Media, LLC, 2023 WL 3792512

(E.D.N.Y. June 2, 2023) (Dismissing for lack of standing where “[a]lthough Plaintiff does offer

some factual context for his past visits, including the date on which he visited Defendant’s

website and the names of the videos he was unable to access, he offers no factual context for his

intent to return to the website.”); Erkan v. Hildago, 2025 U.S. Dist. LEXIS 10404, 2025 WL

253298 (E.D.N.Y. Jan. 21, 2025) (Dismissing for lack of standing where plaintiff “asserts in

conclusory fashion” that she “will visit the website again immediately upon Defendant correcting

the numerous accessibility barriers on it,” but has not demonstrated any particularized reason

why she visited the website and why she would return).

Although Mr. Camacho alleges that he visited Defendant’s website on two occasions and

intends to do so again, there are no other facts alleged supporting the idea that Mr. Camacho has

standing to sue in this case. There is no explanation as to why Mr. Camacho wanted to make a

purchase from Defendant’s website, why he did not in fact make a purchase, why he didn’t

contact Defendant if he was having issues making a purchase, and why he apparently has not

visited Defendant’s website to make the purchase since instituting litigation. There is no known

actual, specific relevance of Defendant’s website to Mr. Camacho, and Defendant remains

confused by Mr. Camacho's allegation that he sells a product that doesn’t exist - “automat pods.”

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2. Mr. Camacho Fails to Allege that Defendant Intended to Discriminate Against

Him Because of His Disability, Because He Does Not Allege that Defendant Had
Notice of His Disability, That He Requested an Accommodation, or that
Requesting an Accommodation Would Have Been Futile.

Mr. Camacho alleges claims under the NYSHRL (N.Y. Exec. Law § 290 et seq.), the

NYSCRL (N.Y. Civ. Rights Law § 40-c et seq.), and the NYCHRL (N.Y.C. Admin. Code § 8-101

et seq.) See Compl. ¶¶ 64-111. Under these laws, plaintiffs can allege three types of disability

discrimination: “(1) intentional discrimination (disparate treatment); (2) disparate impact, and (3)

failure to make reasonable accommodations.” See Rodriguez v. Bitchin’, Inc., Index No.

152619/2023, 2024 NY Slip Op 31560(U) (Sup. Ct. NY County 2024), *2-3.

A. Mr. Camacho Has Not Alleged a Discriminatory Motive, as Necessary for a

Disparate Treatment Claim.

For disparate treatment claims, “proof of [a discriminatory] motive is critical.” Id. at *3

(quoting Brooklyn Ctr. For Psychotherapy, Inc. v Phila Indem. Ins. Co., 955 F3d 305, 311 (2d

Cir. 2020)). Specifically, Section 296(2)(a) of the NYSHRL provides:

It shall be an unlawful discriminatory practice for any person, being the owner, lessee,
proprietor, manager, superintendent, agent or employee of any place of public
accommodation . . . because of the . . . disability . . . of any person, directly or
indirectly, to refuse, withhold from or deny to such person any of the accommodations,
advantages, facilities or privileges thereof…

N.Y. Exec. Law § 296(2)(a) (emphasis added). Similarly, Section 40-c of the NYSCRL states:

“No person shall, because of . . .disability . . . be subjected to any discrimination in his or her

civil rights . . . in the exercise thereof, by any other person or by any firm, corporation or

institution . . . .” N.Y. Civ. Rights Law § 40-c(2) (emphasis added). Finally, Section 8-107(a)(4)

of the NYCHRL includes similar language prohibiting the “refus[al], withhold[ing]… or

den[ial]” of “accommodations, advantages, facilities or privileges” “because of” or “on account

of” a person’s membership in a protected class. See N.Y.C. Admin. Code § 8-107(4)(a) (“It shall

10

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be an unlawful discriminatory practice for any person who is the owner, franchisor, franchisee,

lessor, lessee, proprietor, manager, superintendent, agent or employee of any place or provider of

public accommodation [b]ecause of any person’s actual or perceived . . . disability . . .

status…directly or indirectly, [t]o refuse, withhold from or deny to such person…any of the

accommodations, advantages, facilities or privileges of the place or provider of public

accommodation . . ..” (emphasis added)).

Because these laws use the terms “refusal, withhold from, or deny” in conjunction with

“because of…disability” in describing unlawful discriminatory conduct, courts have interpreted

this language to require a potential plaintiff to request or otherwise notify the potential defendant

of their needs and disability and allow for cure of the accessibility issue. In other words, a

plaintiff must sufficiently allege the defendant had an intent to discriminate against plaintiff

because of the plaintiff’s disability. See Rodriguez, 2024 NY Slip Op 31560(U) at * 3 (“In this

context, where the public accommodation is a website instead of a physical public

accommodation, plaintiff has not shown that defendant knew of his visual impairment let alone

discriminated on said basis. As such, since plaintiff cannot plead that defendant discriminated

against him “because of” his disability, he cannot not properly allege injury under a disparate

treatment theory.”; Castillo v. Hudson Theatre, LLC, 412 F. Supp. 3d 447, 451 (S.D.N.Y. 2019)

(“Notice of the alleged…disability is an assumed prerequisite”).

Courts have repeatedly observed that dismissal is warranted where, as here, the complaint

fails to allege that the plaintiff asked for and was refused any accommodation. See, e.g., Sullivan

v. Bdg Media, 71 Misc. 3d 863, 871 (Sup. Ct. N.Y. Cnty. 2021) (granting motion to dismiss

where “complaint cannot establish that [defendant] refused to make necessary modifications…,

or refused to take steps necessary for [plaintiff] to enjoy…content without auxiliary aids, because

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[plaintiff] has not alleged that he ever requested such steps or modifications in the first place”

(emphasis original)); Pimentel v. Citibank, N.A., 29 A.D.3d 141, 148 (1st Dep’t 2006)

(“[D]efendant cannot be held liable for failing to provide the plaintiff with an accommodation

since she failed to adequately explain the extent and limits of her restrictions.”); Hispanic Aids

Forum v. Estate of Bruno, 16 Misc. 3d 960, 966 (Sup. Ct. N.Y. Cnty. 2007) (dismissing

plaintiff’s disability discrimination claims where “complaint fails to allege that plaintiff

requested any specific accommodation”); Castillo, 412 F. Supp. 3d at 451-52 (“A plaintiff's

request for a reasonable modification is necessary to determine whether the defendant could

reasonably provide such modification and whether the defendant's subsequent failure to do so

constitutes discrimination…. Without her requesting an actual modification, though, it is

impossible to determine whether the [defendant was] actually unwilling to accommodate

[plaintiff], rendering her allegations merely conclusory.”); Shaywitz v. Am. Bd. of Psychiatry &

Neurology, 848 F. Supp. 2d 460, 467 (S.D.N.Y. 2012) (finding “defendant must have adequate

knowledge of the plaintiff’s disability” because, “[a]fter all, a defendant can be expected to

respond only to what it knows (or is chargeable with knowing)”).

As in Rodriguez, nothing in the Complaint supports the conclusion that Defendant

committed a “discriminatory practice” or intentionally discriminated against Mr. Camacho

because the Complaint is devoid of any allegation that Defendant “refused” to sell Mr. Camacho

its products “because of” his visual disability, or that Defendant’s operation of a website with

alleged accessibility issues constitutes a refusal to make reasonable modifications to allow Mr.

Camacho to purchase a product from Defendant. The Complaint does not allege that Mr.

Camacho ever requested any sort of modification to the Website or that Defendant had any

knowledge of Mr. Camacho’s visual impairment. Nor does the Complaint allege that Defendant

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was aware that Mr. Camacho had even accessed the Website or that he was trying to make a

purchase. Moreover, the Complaint does not directly allege that Defendant was actually aware of

any problems the Website might have had in interacting with screen reader software.

All the Complaint alleges is that Mr. Camacho experienced technical difficulties in

using his chosen screen reader software to interact with some of the elements on the Website

(allegedly encountered on just two visits to the Website) and that he was trying to purchase

“automat pods.” He does not specifically allege why he was unable to make a purchase. Such

allegations do not even come close to establishing that Defendant intended to discriminate

against Mr. Camacho because of his visual disability.

B. Mr. Camacho Has Not Alleged a Discriminatory Policy or Practice that

Defendant Refuses to Correct.

In addition to alleging a violation of Section 8-107(4) of the NYCHRL (Complaint, at ¶

94), the Complaint also alleges that Defendant’s conduct violates Section 8-107(17) of the

NYCHRL, which provides that an “unlawful discriminatory practice . . . is established . . . [when

plaintiff] demonstrates that a policy or practice of a covered entity or a group of policies or

practices of a covered entity results in a disparate impact to the detriment of any group protected

by the provisions of this chapter.” N.Y.C. Admin Code § 8-107(17)(a)(1) (emphasis added);

(Complaint, at ¶ 99).

In Rodriguez, the court also rejected the argument that websites with technical

issues/design flaws could amount to both a “policy” and “practice”, and a “public place of

accommodation”, noting that in its Legal Enforcement Guidance, the NYC Commission on

Human Rights cites two examples of neutral policies with disparate impacts, both of which

presuppose a distinction the “public accommodation” and the “policy” or “practice” in question:

“No outside food” policies that may exclude individuals who have diabetes, and “No motorized

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devices” policies that affect people who use wheelchairs and electric scooters to move around.

Rodriguez, supra, at *4 (citing NYC Commission on Human Rights, Legal Enforcement Guide

at 30-31, available at https://www.nyc.gov/assets/cchr/downloads/pdf/NYCCHR_LegalGuide-

DisabilityFinal.2.pdf) (accessed May 2, 2024)).

The Rodriguez court concluded:

[P]laintiff’s argument that website owners may be subject to disparate impact claims by
virtue of its site containing alleged technical/design flaws that create “access barriers”
represents a rather novel expansion of disability discrimination under the NYCHRL—an
expansion that undermines the traditional approach of requiring a plaintiff to request a
reasonable accommodation for their disability before commencing suit and— even
accounting for the liberal interpretation given to the City HRL—has yet to be adopted by
a Department of the Appellate Division. In the absence of Court of Appeals or Appellate
Division caselaw suggesting that the operation website, in and of itself, may be the
subject of a disparate impact claim, the Court finds that plaintiff has not adequately pled
an injury arising from a “policy” or “practice” of defendant.

Id.

Mr. Camacho has not adequately pled a disparate impact claim. The operation of

Defendant’s Website is neither a “policy” or a “practice” of the type required for a disparate

impact claim and there was no discriminatory refusal to accommodate. Mr. Camacho alleges that

he encountered technical problems while viewing the Website and goes on to conclude, without

factual support, that these alleged technical issues— allegedly experienced on just two

occasions—demonstrate “a policy, practice, or procedure” resulting in a disparate impact to the

detriment of people with visual disabilities. Complaint, ¶ 99. But that does not suffice to

demonstrate either a “policy” or a “practice,” as “[a] disparate impact claim…cannot prevail

based on conclusory allegations.” Roberman v. Alamo Drafthouse Cinemas Holdings, LLC, 67

Misc. 3d 182, 188 (Sup. Ct. Kings Cnty. 2020). To the contrary, the Website demonstrates that it

is Defendant’s policy and practice to sell its goods to as many people as possible without regard

to their disability status. Cf. Roberman, 67 Misc. 3d at 188; Castillo, 412 F. Supp. 3d at 452. Mr.

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Camacho could have tried to communicate with Defendant and notified Defendant of his interest

in making any purchase at any time. Had Mr. Camacho done so, and had Defendant refused to

accommodate Mr. Camacho due to discriminatory policies or practices of Defendant’s, that

might have established a disparate impact claim, but those are not the facts alleged in the

Complaint.

C. Mr. Camacho Does Not Allege that a Request for Accommodation Would
Have Been Futile.

While the law creates a safe harbor to plaintiffs where efforts to request an

accommodation would be futile, a plaintiff must set forth facts and evidence as to why such

efforts would be futile. See Sullivan v. BDG Media, Inc. 71 Misc. 3d 863, 872, 146 N.Y.S.3d 395

(N.Y. Co. 2021) (where no request for accommodation had been made, plaintiff must “allege[] a

basis to conclude that [defendant] would refuse to make reasonable modifications”); see also

Castillo, 412 F. Supp. 3d at 452. Failure to allege notice or to adequately allege why a request for

accommodation would be futile warrants dismissal of the claims. For example, in Sullivan v.

Bdg Media, a deaf patron of an internet news website sued the website’s operator on the basis

that the website failed to provide closed captioning for some videos in violation of the NYSHRL

and NYCHRL. 71 Misc. 3d at 865. Because the plaintiff never requested an accommodation and

failed to allege any facts supporting the contention that a request for accommodation would have

been futile, the court dismissed the case.

Here, a request for accommodation obviously would not have been futile, because Mr.

Arena invested in ensuring that the Website was as accessible as possible soon after he was

notified of the Complaint. Arena Aff., 16-17. Mr. Camacho has alleged no facts establishing

that contact with Defendant would have been futile.

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3. Mr. Camacho’s Claims Should Also Fail Because Defendant Operates Only
From its Owners’ Residence and Does Not Offer a Place of Public
Accommodation.

Prior to the court’s decision in Mejia v. High Brew Coffee, Inc., there was a split among

New York courts regarding whether a business that operated exclusively through a website

qualified as a “place of public accommodation” under the ADA. In Mejia, the court noted that:

The Court respectfully disagrees with [some] courts’ broad reading of Pallozzi as
reaching internet-only businesses as places of public accommodation. What the Pallozzi
court decided was not whether a standalone website constitutes a place of
accommodation, but rather, whether, if a physical premise of a business constitutes a
place of public accommodation, goods and services sold from those premises are subject
to the equal access mandate of the ADA.

Id. at *9. The court opined that “[b]y listing 50 terms…that almost all refer to physical places,

Congress indicated an intent to limit public accommodations to entities with physical locations.”

Id. at *10. In addition, the ADA “does not explicitly address businesses without a physical

location, such as mail order merchandise and television shopping channels.” Id. at *12. “Thus,

it should not be inferred that Congress intended ‘places of accommodation’ to include websites –

[then] a newly developed business model – when the text of the statue excludes analogous

business models by imposing a physical location requirement for an entity to be considered a

‘place of public accommodation.’” Id. at 12-13. With this recent decision, it seems clear that

prior decisions from the SDNY holding that a business like Defendant’s business was offering a

“place of public accommodation” under the ADA are no longer good law.

Similar to the definition of “place of public accommodation” in the ADA, the NYCRL

defines a place of public accommodation as follows:

A place of public accommodation, resort or amusement within the meaning of this article,
shall be deemed to include inns, taverns, road houses, hotels, whether conducted for the
entertainment of transient guests or for the accommodation of those seeking health,
recreation or rest, or restaurants, or eating houses, or any place where food is sold for
consumption on the premises; buffets, saloons, barrooms, or any store, park or enclosure

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where spirituous or malt liquors are sold; ice cream parlors, confectioneries, soda
fountains, and all stores where ice cream, ice and fruit preparations or their derivatives, or
where beverages of any kind are retailed for consumption on the premises; retail stores
and establishments, dispensaries, clinics, hospitals, bath-houses, barber-shops, beauty
parlors, theatres, motion picture houses, airdromes, roof gardens, music halls, race
courses, skating rinks, amusement and recreation parks, fairs, bowling alleys, golf
courses, gymnasiums, shooting galleries, billiard and pool parlors, public libraries,
kindergartens, primary and secondary schools, high schools, academies, colleges and
universities, extension courses, and all educational institutions under the supervision of
the regents of the state of New York; and any such public library, kindergarten, primary
and secondary school, academy, college, university, professional school, extension
course, or other educational facility, supported in whole or in part by public funds or by
contributions solicited from the general public; garages, all public conveyances, operated
on land or water, as well as the stations and terminals thereof; public halls and public
elevators of buildings and structures occupied by two or more tenants, or by the owner
and one or more tenants.

N.Y. Civ. Rights Law § 40. Similar to the ADA definition, the NYCRL and NYNRL definitions

refers to physical places, not businesses without a physical location, such as mail order

merchandise and television shopping channels. Id.; N.Y. Exec. Law § 292.

Finally, under the NYCHRL, the term “place or provider of public accommodation”

includes “providers, whether licensed or unlicensed, of goods, services, facilities,

accommodations, advantages or privileges of any kind, and places, whether licensed or

unlicensed, where goods services, facilities, accommodations, advantages or privileges of any

kind are extended, offered, sold, or otherwise made available.” N.Y.C. Human Rights Law § 8-

102.

Defendant could not locate another Kings County decision examining this issue since the

SDNY’s Mejia decision. Particularly given the similarity of the ADA language and the language

of the NYHRL and NCHRL, Defendant thought that the Court may want to review this issue in

light of the Mejia decision.

However, in full transparency, Defendant acknowledges that the NYCHRL language is

broader than the ADA, NYCRL and NYHRL language, in that “place or provider of public

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accommodation…includes providers…of goods, services, facilities, accommodations,

advantages or privileges of any kind”. Defendant further notes that the New York County

Supreme Court stated that the NYCRL was broader than the ADA and applied to online-only

business in the Sullivan v. BDG Media case, although it ended up dismissing all of the plaintiff’s

claims for other reasons. If the Court does not dismiss Plaintiff's claims on other grounds,

Defendant respectfully requests that the Court consider whether an extremely small, online-only

business is really a “place of public accommodation” under these New York laws as well,

particularly given the SDNY’s new decision in Mejia.

CONCLUSION

For the three reasons set forth above, Plaintiff’s claims against Defendant should be

dismissed with prejudice pursuant to the New York Civil Practice Law and Rules (“CPLR”) §§

3211(a)(3) and (7) for failure to state a cause of action and for lack of standing.

/s/Jordan LaVine
Jordan LaVine, Esq.
(N.Y. Bar No. 5061932)
FLASTER/GREENBERG P.C.
295 Madison Avenue, 12th Floor
New York, NY 10017
[email protected]
215.279.9389
Attorney for Defendant

and

Charles J. Arena, Esq.

(To seek admission pro hac vice)
583 Skippack Pike, Suite 100
Blue Bell, PA 19422
[email protected]
215.540.0300
Attorney for Defendant

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AFFIRMATION OF WORD COUNT

I, Jordan LaVine, hereby affirms the following to be true under penalty of perjury:

1. I am an attorney in good standing, a member of the law firm Flaster Greenberg PC and

represent defendant Horn & Hardart, Inc. (“Defendant”) in this action.

2. In accordance with Rule 202.8-b of the Uniform Civil Rules for the Supreme Court, I

hereby certify to the word count in this Affirmation in Support of Defendant’s Motion to

Dismiss.

3. I make this affirmation in reliance upon the word count feature of the word processing

system used to prepare this document.

4. The above referenced document includes 6,268 words, exclusive of the table of contents

and authorities. As such, this document complies with the requirements in Rule 202.8-b.

I, Jordan LaVine, on this 1st day of March, 2025, hereby declare, under penalty of

perjury, that the foregoing is true and correct.

DATED: March 1, 2025

/s/Jordan LaVine
Jordan LaVine, Esq.
(N.Y. Bar No. 5061932)
FLASTER/GREENBERG P.C.
295 Madison Avenue, 12th Floor
New York, NY 10017
[email protected]
215.279.9389
Attorney for Defendant

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