Hirsch v. Hilltop Grocery At Grand Inc. et al, No. 1:2011cv07202 - Document 18 (S.D.N.Y. 2013)

Court Description: OPINION: re: 10 MOTION to Dismiss filed by Hilltop Grocery At Grand Inc. It is well established that, at the motion to dismiss stage, a court must accept as true the facts alleged in the complaint, drawing all reasonable inferences in the plaintif fs favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The court may not, at this stage, entertain evidence submitted by the parties and resolve factual disputes. Accordingly, defendants' motion is denied. SO ORDERED. (rsh)

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USDCSDNY . DOCUMENT UNITED STAT'ES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK ELECfRONICALLY FILED . DOC I: DATE FILED: ZOLTAN HIRSCH, f\tCk t~ ,JAn Plaintiff, v. 11 Civ.7202 OPINION HILLTOP GROCERY AT GRAND, INC., et al., Defendant. Plaintiff Zoltan Hirsch brings this action under the Americans with Disabilities Act, 42 U.S.C. § 12181 et seq., as well as New York City Human Rights Law, NYC Admin Code § 8-107(4)(a), and New York State Human Rights Law, NYS Exec. Law § 296 (2)(a). Hirsch, a double-amputee who relics upon a wheelchair for mobility, alleges that defendants' facility, Hilltop Grocery, is in violation of the ADA in at least 23 respects, largely (but not exclusively) relating to defendants' failure to install appropriate ramps, and their having installed many important items (sales counters, cash registers, scales, paper towel dispensers, etc.) at too great a height from the floor. Defendants move to dismiss dle complaint on the ground that they have already satisfied Hirsch's claims. Defendants claim dlat they have paid Hirsch $500 in damages, $350 in costs, and that they have remedied the numerous specific violations identified in Hirsch's complaint. 1 Hirsch, however, contends that these violations have not, in fact, been remedied. Therefore, Hirsch argues, the complaint's prayer for a court order requiring defendants to modify their facilities to comply with the ADA, NYCHRL, and NYSHRL has not been satisfied. It is well established that, at the motion to dismiss stage, a court must accept as true the facts alleged in the complaint, drawing all reasonable inferences in the plaintiffs favor. ATSI Commc'ns, Inc. v. Shaar Fund, Ltd., 493 F.3d 87, 98 (2d Cir. 2007). The court may not, at this stage, entertain evidence submitted by the parties and resolve factual disputes. Accordingly, defendants' motion is denied. So ordered. Dated: New York, New York March 19, 2013 Thomas P. Griesa United States DistrictJudge 2

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