This motion, by defendant, for an order:

a) pursuant to CPLR 3211(a) (2) dismissing the First and Second Causes of Action on the grounds this court lacks subject matter jurisdiction; and

b)pursuant to CPLR 3211(a) (7) dismissing the First and Second Causes of Action on the grounds that plaintiff fails to state a cause of action;

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c)awarding defendant attorney's fees in the sum of $5,000.00 on the grounds that the action is frivolous within the meaning of 22 NYCRR 130-1.1 and ADA Title V Section 505, 42 U.S.C. 12205; and

d)such other and further relief as to this Court may deem just and proper,

is determined as hereinafter set forth.

In August 2003, the plaintiff visited the defendant's facility located at 1840 Grand Ave., Baldwin, New York. The plaintiff has a physical disability known as cerebral palsy and claims the defendant has failed to make adequate accommodations and modifications to its facility (Carvel) which denies her and other persons similarly situated the opportunity to benefit from services or accommodations on the basis of their disability. The plaintiff further claims the defendant's facility has not been designed, constructed, or altered in compliance with the accessibility standards of Title III of the Americans with Disabilities Act (ADA). The plaintiff sought class certification and on August 4, 2004, the plaintiff commenced this action against the defendant. The plaintiff asserts two causes of action, the first claim pursuant to New York State Executive Law (Human Rights Law) and the second claim pursuant to the Americans with Disabilities Act, 42 USC 12182; 28 C.F.R. 36.104 (ADA).

The defendant seeks dismissal of both claims pursuant to CPLR 3211 (a) (2) lack of subject matter jurisdiction. The defendant also seeks dismissal of both claims pursuant to CPLR 3211 (a) (7) failure to state a cause of action.

The defendant states that plaintiff relies on Executive Law § 292(9) as the basis for the discrimination claim and that plaintiff asserts that the defendant owns or leases a "place of public accommodation." The defendant provides an affidavit asserting that the premise at issue was a Carvel ice cream store which sells ice cream as take out only, and is not retailed "for consumption on the premises". The defendant argues that the premises was not a place of public accommodation, within the meaning of New York Law, and therefore this Court lacks subject matter jurisdiction. The defendant claims this Court also lacks subject matter jurisdiction on the plaintiff's second claim because an

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ADA claim must be commenced in federal court. Jurisdiction under the ADA is determined in accordance with Title VIII, 42 U.S.C. 2000e-5(f) (3), 28 USC 1331 and 1343.

The defendant further argues that both claims should be dismissed pursuant to CPLR 3211 (a) (7) for failure to state a cause of action. The defendant states that the plaintiff failed to plead the elements of a cause of action under either state or federal law and refers to CPLR 3013 which requires that, "statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." The defendant claims that the plaintiff failed to state that the premises is a "place of public accommodation" within the meaning of the statute. The defendant claims the plaintiff also failed to specifically cite what law was violated by defendant. The defendant argues that the complaint does not indicate when plaintiff or other similarly situated persons attempted to use the premises or what conditions prevented such use.

The defendant claims that the plaintiff failed to assert that she is a disabled person within the meaning of the ADA; and that she further failed to allege any nexus between the alleged discrimination and her claimed disability. The plaintiff is precluded from seeking compensatory damages because the ADA does not provide a private right of action for damages, but rather only authorizes injunctive relief. Since the business is closed and the building is vacant, the plaintiff is incapable of establishing a real and immediate threat of repeated injury. Therefore, the plaintiff has no standing to seek injunctive relief.

Finally, the defendant requests sanctions and an award of attorney's fees in the sum of $5,000.00 on the grounds that the instant action is frivolous in that it was commenced without any basis in fact or law under 22 NYCRR 130-1.

The plaintiff states that this Court does not lack subject matter jurisdiction over the first and second cause of action. The defendant's facility is a Carvel ice cream store which falls under New York's Executive Law 292(9). Moreover, an ADA claim may be commenced in state court or in federal court; State courts have concurrent jurisdiction over ADA claims.

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The plaintiff further claims to have stated a well pleaded cause of action because defendant is provided with notice of their violations of the New York State's Executive and Civil Rights Law, violations of the ADA, the material elements of the causes of action, and a description of how it has damaged her and the similarly situated class of people. [*3]

The defendant's attorney asserts that the plaintiff's complaint has failed to show that she has sustained, or is in immediate danger of sustaining, direct injury as a result of the defendant's conduct. Counsel argues that the plaintiff has also failed to show a plausible intention or desire to return to the premises. Moreover, New York State Executive Law specifically exempts ice cream stores where the product is not consumed on the premises.

The term, "place of public accommodation" as defined under New York Executive Law 292(9), should be construed broadly enough to encompass the statute. The defendant asserts that the Carvel ice cream store in question does not fall under the definition of "place of public accommodation" because the ice cream is not retailed for consumption on the premises. This interpretation would completely hamstring the purpose of the statute. This statute was designed to ensure that all persons be entitled to full and equal accommodations, advantages, facilities and privileges of any places of public accommodations. (see, Camp-Of-The-Pines v New York Times Co., 184 Misc.389, 53 NYS2d 475, 1945). New York law should not be construed as to permit a person to be discriminated against for the sole reason that ice cream is meant to be served as "take out" from the premises. More precisely, the definition includes, "wholesale and retail stores and establishments dealing with goods or services of any kind". Under this definition, a Carvel store is a "place of public accommodation."

The defendant has incorrectly stated that claims based upon violations of the ADA must be brought in Federal Court. On the contrary, state courts have concurrent jurisdiction over ADA claims. (Meadows v. Flemings, Inc., 290 AD2d 386, 387, 737 N.Y.S.2d 272, 1st Dep't 2002). (citing Yellow Freight System, Inc. v. Donnelly, 494 U.S. 820 1990). The U.S. Supreme Court has consistently held that state courts have inherent authority, and are thus competent, to adjudicate claims arising under the laws of the United States. To give Federal Courts exclusive jurisdiction over a federal cause of

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action, Congress must, in an exercise of its powers under the Supremacy Clause, affirmatively divest state courts of their concurrent jurisdiction. (Tafflin v Levitt, 493 U.S. 455 1990). An examination of the ADA legislation does not reveal the existence of such divestiture. Therefore, this Court does not lack subject matter jurisdiction to hear a federal claim such as this one.

When determining whether the plaintiff established a cause of action, this Court

must accept each and every allegation forwarded by the plaintiff. (Broadway Corp. v. Alexander's Inc., 46 NY2d 506, 509, 414 N.Y.S. 2d 889 1979). Under CPLR 3013, all that is required of the statements in a pleading is that they be sufficiently particular to give a court and the parties notice of the transactions and occurrences to be proven and the material elements of [*4]the cause of action. The plaintiff has satisfied that requirement, therefore necessitating an analysis of the sufficiency of the plaintiff's cause of action. If, from the complaint's four corners, factual allegations are discerned, which taken together manifest any cause of action cognizable at law, a motion for dismissal will fail. (Guggenheimer v Ginzburg, 43 NY2d 268, 275, 401 NYS2d 182, 1977). In the case at bar, the plaintiff's complaint specifically included the defendant's alleged violations of the Americans with Disabilities Act and New York State's Executive Law, thus sufficiently pleading a cause of action.

Relief in the form of monetary damages is not permitted by the legislation when the claim is based on violations of the Americans with Disabilities Act. The plaintiff properly seeks monetary damages on the basis of violations of New York Executive Law and an injunction based on violations of the Americans with Disabilities Act. The plaintiff's request for monetary damages is sufficient. However, the defendant is correct in stating that the facts do not support a request for injunctive relief. The defendant has submitted an affidavit establishing that the Carvel business is closed and the building is currently vacant. Since that issue is undisputed, the plaintiff has failed to establish a likelihood of success on the merits and relief in the form of an injunction cannot be obtained. (JDOC Construction, LLC v Balabanow, 306 AD2d 318, 760 NYS2d 678, 2003).

Accordingly, the plaintiff's claim based on violations of the Americans with Disabilities Act must be dismissed because proper relief cannot be granted.

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The defendant's motion to dismiss the first and second causes of action, pursuant to CPLR 3211(a)(2) on the grounds this Court lacks subject matter jurisdiction is denied. The defendant's motion to dismiss the first cause of action pursuant to CPLR 3211(a)(7) on the grounds that plaintiff fails to state a cause of action is denied. The defendant's motion to dismiss the second cause of action pursuant to CPLR 3211(a)(7) on the grounds

that plaintiff fails to state a cause of action is granted. The defendant's request for attorney's fees on the grounds that the instant action is frivolous within the meaning of 22 NYCRR 130-1, in that it was commenced without any basis in fact or law, is denied.

The making of this motion has triggered assignment pursuant to Part 202 of the Uniform Rules for New York State Trial Court. The Preliminary Conference mandated by Section 202.12 shall be held on the first floor of the courthouse, Room 186 in the DCM Part on the 27th day of July 2005 at 9:30 A.M.

So Ordered.

Dated June 30, 2005

J.S.C.