Perdum v. Forest City Ratner Companies ( 2017 )

16-1240-cv
Perdum v. Forest City Ratner Cos.
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 A SUMMARY ORDER MUST SERVE A
COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
1 At a stated term of the United States Court of Appeals for the Second Circuit, held
2 at the Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New
3 York, on the 8th day of February, two thousand seventeen.
4
5 PRESENT: BARRINGTON D. PARKER,
6 REENA RAGGI,
7 CHRISTOPHER F. DRONEY,
8 Circuit Judges.
9 ----------------------------------------------------------------------
10 JEROME K. PERDUM, SR.,
11 Plaintiff-Appellant,
12
13 v. No. 16-1240-cv
14
15 FOREST CITY RATNER COMPANIES, FIRST NEW
16 YORK PARTNERS MANAGEMENT, LLC,
17 ATLANTIC CENTER FORT GREENE ASSOCIATES,
18 Defendants-Appellees,
19
20 TARGET STORES, PATHMARK STORES,
21 Defendants.
22 ----------------------------------------------------------------------
23
24 FOR APPELLANT: Michael L. Walker, Law Offices of Michael L.
25 Walker, Brooklyn, New York.
26
27 FOR APPELLEES: Richard M. Freiman, Zena Eldada, Richard
28 Freiman & Associates, PLLC, New York, New
29 York.
1
1
2 Appeal from a judgment of the United States District Court for the Eastern District
3 of New York (Pamela K. Chen, Judge).
4 UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED,
5 AND DECREED that the March 29, 2016 judgment of the district court is AFFIRMED.
6 Plaintiff Jerome K. Perdum, Sr., appeals from an award of summary judgment in
7 favor of defendants Forest City Ratner Companies, First New York Partners
8 Management, LLC, and Atlantic Center Fort Greene Associates, which dismissed
9 Perdum’s claim of disability discrimination in violation of the Americans with
10 Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., for lack of standing. We review
11 an award of summary judgment for lack of standing de novo. See Natural Res. Def.
12 Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d 71, 79 (2d Cir. 2013). We assume
13 the parties’ familiarity with the facts and record of prior proceedings, which we reference
14 only as necessary to explain our decision to affirm for substantially the reasons stated by
15 the district court in its thorough and well-reasoned opinion. See Perdum v. Forest City
16 Ratner Cos., 174 F. Supp. 3d 706 (E.D.N.Y. 2016).
17 To establish standing under the ADA, a plaintiff must show, inter alia, an “injury
18 in fact” that is both “concrete and particularized” and “actual or imminent.” Kreisler v.
19 Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013). The district court correctly
20 concluded that Perdum lacks standing to bring his ADA claim because the “barriers to
21 entry” that he alleges do not establish injury in fact. Perdum v. Forest City Ratner Cos.,
22 174 F. Supp. 3d at 715–18. The “harassment” and associated penalties that he alleges
2
1 resulted from his continued use of prohibited parking on a private street posed no
2 obstacle to Perdum’s access to the places of public accommodation here at issue: the
3 Atlantic Mall shopping center and a Pathmark grocery store located therein. Perdum’s
4 argument that such harassment has “deterred” him from shopping at these places,
5 Appellant’s Br. 10; see Kreisler v. Second Ave. Diner Corp., 731 F.3d at 188 (holding
6 deterrence from use of public accommodation may constitute injury under ADA), is
7 belied by undisputed evidence that he has returned to and shopped at the Atlantic Mall
8 after the alleged harassment, using alternative parking. See Perdum v. Forest City
9 Ratner Cos., 174 F. Supp. 3d at 716. Perdum’s argument that he has been “denied
10 access to handicapped parking,” Appellant’s Br. 9, also fails because the record shows
11 that the parking garage associated with the Mall offers 30 designated handicapped
12 parking places and direct elevator access to the Mall. Undisputed evidence establishes
13 that Perdum is capable of entering the garage in his vehicle but chooses not to do so
14 because it allegedly prompts him to experience “claustrophobia.” App’x 304. But he
15 does not allege that condition to be a disability requiring accommodation. See Perdum
16 v. Forest City Ratner Cos., 174 F. Supp. 3d at 717–18. Accordingly, Perdum’s ADA
17 claim was correctly dismissed for lack of standing.
18 We have reviewed Perdum’s remaining arguments and conclude that they are
19 without merit. Accordingly, the March 29, 2016 judgment of the district court is
20 AFFIRMED.
21 FOR THE COURT:
22 CATHERINE O’HAGAN WOLFE, Clerk of Court
3