Supreme Court, New York County, March 26, 2021

Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York City (Scott A. Rader of counsel), and Washington, D.C. (Tara M. Corvo, Alyssia J. Bryant and Elana R. Safner of counsel), for defendant.

Lee Litigation Group, PLLC, New York City (C. K. Lee of counsel), for plaintiff.

Plaintiff, Phillip Sullivan, Jr., commenced this action against defendant, BDG Media, Inc., doing business as Elite Daily (Elite Daily), alleging that defendant violated his civil rights by denying him equal access to services offered on defendant's website.

Elite Daily owns and operates the website www.elitedaily.com. This website allows users to access the news, read articles about current events and trends, and browse videos relating to popular culture. Sullivan is deaf. He alleges that in June 2019, he attempted to watch seven videos on the website, but was unable to do so properly due to their lack of closed captioning. Without closed captioning, Sullivan could not understand the audio portions of the videos he tried to access.

Sullivan then brought this action against Elite Daily. His complaint alleges that Elite Daily discriminates against deaf and hard-of-hearing individuals by posting videos on its website without closed captioning, in violation of the New York State (NYSHRL) and New York City (NYCHRL) Human Rights Laws. Sullivan seeks damages and declaratory and injunctive relief.

Elite Daily now moves to dismiss this complaint under CPLR 3211 (a) (7). The motion is granted, because Sullivan has not alleged that he requested—and was denied—a reasonable modification of the videos on Elite Daily's website that Sullivan asserts are inaccessible to him.{**71 Misc 3d at 866}

On a motion to dismiss under CPLR 3211 (a) (7), courts must give the pleadings a liberal construction, accept the allegations in the complaint as true, and accord a plaintiff every possible favorable inference. (See Chanko v American Broadcasting Cos. Inc., 27 NY3d 46, 52 [2016].) However, allegations consisting of bare legal conclusions, or factual claims contradicted by documentary evidence, are not entitled to such consideration. (See CIBC Bank & Trust Co. v Credit Lyonnais, 270 AD2d 138, 138 [1st Dept 2000].)

I. Elite Daily's Argument That Sullivan's Claims are Preempted

Elite Daily contends that Sullivan's claim must be dismissed as preempted by the federal Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The CVAA directed the Federal Communications Commission (FCC) to "revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol that was published or exhibited on television with captions." (47 USC § 613 [c] [2] [A].) The resulting 2012 FCC regulations require closed captioning on "all nonexempt full-length video programming delivered using Internet protocol . . . if the programming is published or exhibited on television in the United States with captions." (47 CFR 79.4 [b] [1].)

In other words, federal law requires closed captioning on Internet-based video content only for video content that was previously shown on television with captions. Elite Daily argues that this regulatory framework preempts application of the NYSHRL and NYCHRL to require content providers to include captioning for online-only videos. This court concludes that the CVAA does not have the preemptive effect that Elite Daily ascribes to it.

A. Field Preemption

Elite Daily asserts that the CVAA and its implementing regulations occupy the field of accessibility requirements for online video content, precluding any state regulation in this area. Federal law will be considered to impliedly preempt state law under the Supremacy Clause of the United States Constitution only when "federal law so thoroughly occupies a legislative field 'as to make reasonable the inference that Congress left no room for the States to supplement it.' " (Balbuena v IDR Realty LLC, 6 NY3d 338, 356 [2006], quoting Cipollone v Liggett Group, Inc., 505 US 504, 516 [1992].) Several reasons lead{**71 Misc 3d at 867} this court to conclude that the CVAA (and the accompanying FCC regulations) do not occupy the legislative field of online-video accessibility requirements for preemption purposes.

[1] The CVAA amended the Telecommunications Act of 1996. In so doing, the CVAA left intact the Telecommunications Act's savings clause, which provides that the act or any amendments thereto "shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such Act or Amendments." (Telecommunications Act of 1996, Pub L 104-104, 110 US Stat 56, § 601 [c] [1].) This savings clause undercuts any inference that Congress intended to occupy the entire legislative field of captioning requirements. (See Greater Los Angeles Agency on Deafness, Inc. v Cable News Network, Inc., 742 F3d 414, 428 [9th Cir 2014].)

There also is little reason to think that Congress intended to occupy the field with respect to online-video accessibility requirements such as captioning. The CVAA does not contain express language providing that it impairs or supersedes state law regarding video captioning, as [*3]would be needed under the Telecommunications Act's savings clause.

Further, the captioning requirements of CVAA and its implementing regulations are limited to full-length video programs (and clips excerpted from full-length programs) that previously appeared on television. These regulatory requirements simply do not address one way or another the large and ever-growing field of online-only video content. Nor is this court persuaded by Elite Daily's argument that federal regulatory silence in this area should be understood as evincing an intent to wholly occupy the field and thereby displace preemptively any state or local regulation of accessibility of online-only video content. (See Greater Los Angeles Agency on Deafness, 742 F3d at 428 [similarly rejecting a version of this argument].)

B. Conflict Preemption

Elite Daily also contends that federal law preempts the NYSHRL and NYCHRL as a matter of conflict preemption.^[FN1] Such implied preemption will be found "where state law stands as an obstacle to the accomplishment and execution of the full{**71 Misc 3d at 868} purposes and objectives of Congress." (English v General Elec. Co., 496 US 72, 79 [1990] [internal quotation marks and citations omitted].) No such obstacle exists here.

[2] By enacting the CVAA, Congress intended to "update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming." (S Rep 111-386, 111th Cong, 2d Sess, republished at 2010 WL 5186403.) Interpreting New York law to require captioning of online-only videos furthers, rather than obstructs the congressional purpose of enhancing the ability of individuals with disabilities to access video programming.

Elite Daily asserts that Congress deliberately chose to balance that objective against the regulatory burden of the CVAA by requiring closed captioning only with respect to online video that had previously aired on television. But Elite Daily has not identified any indication that Congress deliberately refrained in 2010 from requiring captioning of online-only video content because it felt that such a requirement would impose an excessive burden on content providers—rather than for example, deciding to proceed one step at a time in regulating a new (and rapidly growing and changing) form of communication. To the contrary, Elite Daily itself quotes from a CVAA committee report suggesting that Congress was open to the possibility of requiring captioning for online-only content but wished to have the benefit of further study of the issue before proceeding.^[FN2] (See NYSCEF Doc No. 4 at 5, quoting HR Rep 111-563, 111th Cong, 2d Sess at 30, republished at 2010 WL 2902494.) Similarly, the 2014 FCC order on closed captioning cited and quoted by Elite Daily (see id. at 6) expanded federal regulation of online video content by requiring captioning for excerpted clips of previously aired content, in addition to full-length programs.^[FN3] (See {**71 Misc 3d at 869}second order on reconsideration, Matter of Closed Captioning of Internet Protocol-Delivered Video Programming, 29 FCC Record 8687 ¶¶ 1-2, 4-9 [July 14, 2014].) Elite Daily thus has not shown that interpreting the NYSHRL and NYCHRL to require captioning for online-only video content would necessarily obstruct federal captioning policy, such that Sullivan's complaint should be dismissed on that ground at the pleading stage.

II. Elite Daily's Argument That its Website is Not a Place of Public Accommodation

[3] Next, Elite Daily argues that its website is not a place of public accommodation—as required for it to be subject to the accessibility requirements of the NYSHRL and NYCHRL. (See Executive Law § 296 [2] [a]; Administrative Code of City of NY § 8-107 [4] [a] [1] [a].) This court is not aware of any prior decision by a New York court that addresses this question.^[FN4] As a matter of first impression, considering the NYSHRL's text, purpose, and precedent, this court concludes that a website qualifies as a place of public accommodation under the statute.

The NYSHRL treats "place of public accommodation" as an extremely broad category. The statute's definition of this term is expressly framed in illustrative rather than exclusive or limiting terms. (See Executive Law § 292 [9].) And it is clear that "the Legislature intended that the definition of place of accommodation should be interpreted broadly." (Matter of {**71 Misc 3d at 870}United States Power Squadrons v State Human Rights Appeal Bd., 59 NY2d 401, 410 [1983].)

The statutory definition lists a host of examples—most relevantly here, "establishments [*4]dealing with goods or services of any kind."^[FN5] (Executive Law § 292 [9]; accord Matter of Cahill v Rosa, 89 NY2d 14, 21-22 [1996] [construing this example broadly].) Although many of these examples are physical structures or establishments, rather than an intangible "place" like a website, the Court of Appeals emphasized in United States Power Squadrons that "place" in this statute is a "term of convenience, not limitation." (59 NY2d at 411.) That is, public accommodations need not necessarily be "supplied at fixed places," and establishments "may discriminate by denying goods and services without denying individuals access to any particular place"—as in the case of "mail order services." (Id.) Thus, the "place of the public accommodation need not be a fixed location, it is the place where [regulated parties] do what they do." (Id.)

Here, Elite Daily is a media establishment that provides services to the public in the form of articles and videos. And it provides those services through its website. This court concludes that under United States Power Squadrons' expansive, functional understanding of "place," Elite Daily's website—like a mail-order catalog or the like—qualifies as a place of public accommodation notwithstanding the absence of any physical location. Indeed, given the modern prevalence of e-commerce, excluding online-only commercial enterprises from the definition of "public accommodation" would severely frustrate the legislature's intent to enable individuals with disabilities to fully enjoy the goods, services, privileges, and advantages available to the general public.

Elite Daily contends that its website nonetheless does not qualify as a place of public accommodation under the NYSHRL because the website "does not sell or lease goods or services to the public," but instead "offers free content to its online readers" while deriving its revenue "from online ad placements." (NYSCEF Doc No. 4 at 15.) But Elite Daily fails to explain why this distinction should make a dispositive difference under{**71 Misc 3d at 871} New York law; and this court concludes that it does not.^[FN6] That the business model of the "establishment" in this case is based on a more indirect means of earning revenue from the services it provides—i.e., through advertising rather than through subscriptions or per-item charges—does not alter the nature of the services (articles and videos) themselves. And in any event, the statutory definition encompasses "retail stores and establishments dealing with goods or services of any kind." (Executive Law § 292 [9] [emphasis added].)

This court is thus not persuaded by Elite Daily's argument that Sullivan's complaint fails to state a cause of action for failure to allege that Sullivan was denied access to the advantages and privileges of a place of accommodation within the meaning of the NYSHRL. And given that the NYCHRL is to be construed more broadly than the NYSHRL in favor of plaintiffs alleging discrimination, Elite Daily's argument fails perforce as to this element of Sullivan's NYCHRL [*5]claim.

III. Elite Daily's Argument That it Did Not Refuse to Make Reasonable Modifications to its Website

[4] Elite Daily also argues that Sullivan's claims should be dismissed because he has not alleged that he sought and was denied a captioning-related modification or accommodation. This court agrees.

Under the NYSHRL, an unlawful discriminatory practice in the context of disability discrimination includes "a refusal to make reasonable modifications in policies, practices, or procedures" that are needed to enable an individual with a disability to take advantage of a place of accommodation; or, similarly, "a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services." (Executive Law § 296 [2] [c] [i]-[ii].)

As Elite Daily argues, though, Sullivan's complaint cannot establish that Elite Daily refused to make necessary modifications to its video content, or refused to take steps necessary for him to enjoy that content without auxiliary aids, because he has not alleged that he ever requested such steps or modifications in the first place. Indeed, Sullivan's opposition to the motion to dismiss effectively concedes as much.{**71 Misc 3d at 872}

Sullivan contends that he can nonetheless state a cause of action because it would have been futile for him to make that request of Elite Daily. But his complaint does not allege any facts supporting this contention—for example, that Elite Daily had affirmatively represented that it was unwilling to add captioning to videos or provide similar accommodations, or that Sullivan was aware that Elite Daily had previously refused similar requests made by other deaf individuals.

Sullivan suggests that such allegations are unnecessary. He asserts that he had actual notice that Elite Daily "does not intend to comply" with its obligations under anti-discrimination law because Sullivan "has affirmatively attempted and failed to access Defendant's services." (NYSCEF Doc No. 13 at 12, 13.) But for present purposes the question is not whether Elite Daily's failure to provide captioning for several videos allegedly prevented Sullivan from meaningfully accessing those videos. Rather, it is whether Sullivan has alleged a basis to conclude that Elite Daily would refuse to make reasonable modifications on request that would afford Sullivan such access. And he has not.

This case is thus similar to the decision of the U.S. District Court for the Southern District of New York in Castillo v Hudson Theatre, LLC, in which the court held that the plaintiff had failed to state a disability-discrimination cause of action because she had not alleged facts indicating either that she had sought and been refused a modification or accommodation for her disability, or that she had a basis to believe that making such a request would be futile. (412 F Supp 3d 447, 451-452 [SD NY 2019].) If anything, Sullivan's position is weaker than that of the plaintiff in Castillo, because Elite Daily undisputedly provides a means of accessing captioned versions of most of the videos at issue via YouTube.^[FN7] (See NYSCEF Doc No. [*6]4 at 17 and n 9.)

Sullivan relies heavily on a decision of the U.S. District Court for the Western District of Texas, which held that the{**71 Misc 3d at 873} wheelchair-using plaintiffs in the case did not need to have actually downloaded Uber and Lyft's mobile apps and requested rides as a precondition to suing defendants under the ADA for failing to provide ride-sharing services to wheelchair-users. (See NYSCEF Doc No. 13 at 12-13, citing Ramos v Uber Tech., 2015 WL 758087, *9, 2015 US Dist LEXIS 20914, *24-28 [WD Tex, Feb. 20, 2015, No. SA-14-CA-502-XR, Rodriguez, J.].) But in reaching this conclusion, the district court in Ramos took into account the detailed affidavits from plaintiffs explaining why they believed that Uber and Lyft would deny services to—and would not accommodate—wheelchair-using customers. (See 2015 WL 758087, *8-9, 2015 US Dist LEXIS 20914, *22-28; accord Lowell v Lyft, Inc., 352 F Supp 3d 248, 253, 256 [SD NY 2018] [same].) This is precisely the kind of information that is not alleged in Sullivan's complaint (or for that matter his motion to dismiss). Sullivan thus cannot satisfy a necessary element of his disability-discrimination claims.^[FN8]

Accordingly, for the foregoing reasons, it is hereby ordered that defendant's motion to dismiss under CPLR 3211 (a) (7) is granted, and the action is dismissed, with costs and disbursements to defendant as taxed by the County Clerk upon submission of a reasonable bill of costs; and it is further ordered that defendant serve a copy of this decision with notice of its entry on plaintiff; on the office of the General Clerk; and on the office of the County Clerk, which shall enter judgment accordingly.