The following e-filed papers read herein: NYSCEF Doc Nos.

Defendants moves for summary judgment under CPLR § 3211 dismissing the case since the plaintiff is collaterly estopped from raising issues determined by district court Judge Pamela K. Chen in Irish v Tropical Emerald LLC and Rainbow USA Inc. (2024 WL 1345711 EDNY 2024). The court grants the motion to dismiss.

In 2018, plaintiff Kelly Irish filed a federal lawsuit against defendants Tropical Emerald LLC and Rainbow U.S.A Inc. She claimed that the defendants violated the Americans with Disabilities Act ("ADA") [42 U.S.C. § 12181 et. Seq.], the New York State Human Rights Law ("NYSHRL") [§ 290], and the New York City Human Rights Law ("NYCHRL") [§ 40] (see Irish v. Tropical Emerald LLC Rainbow US, Inc., WL 1345711 [E.D.NY Mar. 30, 2024]). Ms. Irish also sought a declaration that Rainbow discriminated against her due to her disability.

Ms. Irish uses a wheelchair. When she attempted to shop at Rainbow, the aisles were too narrow. She asked the store staff for help, and they refused. The ADA has covered her since [*2]Rainbow altered the premises in 2005 and possibly 2012.

Ms. Irish was "frustrated." She never returned to Rainbow. Further, she seeks a declaration that Rainbow discriminated against her as a public accommodation. She sought compensatory damages, punitive damages, and attorney fees.

After the federal district lawsuit commenced, Rainbow removed barriers asserted by the plaintiff and her expert. It created a wheelchair-accessible route through the middle of each aisle that "connects to the front of the store... and to the rear of the store." (Id). It also remediated the escalator, passenger elevator, and service counter. Rainbow posted signs depicting the International Symbol of Accessibility along main aisles and at each floor's cash register, notifying customers that they could ask staff for assistance. They ensured that staff would order aisles between movable display racks by pulling them apart to permit persons in wheelchairs to travel between them and Rainbow's sidewall.

At the district court defendant moved for summary judgment on "all claims." The plaintiff moves to strike a portion of the defendant's reply supporting the summary judgment motion. The court granted the defendant's motion for summary judgment and denied the plaintiff's motion to strike. It determined that the plaintiff did not supply evidence to defeat the summary judgment motion. (Irish at *3, citing Celotex Corp. v. Catrett, 477 US 317, 325 [1986]).

The district court held that the plaintiff had to prove Rainbow violated either the Alteration Standard or a Barrier Removal Standard under the ADA.

Under the Alteration Standard, Rainbow had to ensure alterations affecting the store's usable areas of primary function complied with the ADA. The alterations had to allow for accessibility to the "maximum extent feasible" not disproportionate to "the cost and scope." (Roberts v. Royal Atl. Corp., 542 F.3d 363, 372 [2d Cir. 2008], citing 42 U.S.C. § 12183(a)(2)). The plaintiff offered no evidence that the defendants altered the fixed merchandise units or displays. (Irish at *6). Irish's expert claimed only one example of a narrow aisle between display merchandise but not alterations to the wall or aisles. (Id). She further failed to offer any remedy which considered costs. (Roberts, 542 F.3d at 372—73, 376). The court dismissed the Alteration Standard claim.

To prove a Barrier Removal claim, a plaintiff must prove that the barrier removal is "readily achievable" and plausible. (Roberts, 542 F.3d at 373, quoting Borkowski v. Valley Cent. Sch. Dist., 63 F.3d 131, 138 [2d Cir. 1995]).

The plaintiff wanted Rainbow to rearrange the merchandise display racks to provide accessible routes to the display floor areas. However, she did not propose evidence regarding plausible "feasibility" or "costs" for wider aisles. (Irish *8). She failed to provide evidence that her requests would not cause a "significant loss of selling or service" to Rainbow. (See 28 C.F.R. § 36.304(f)). Therefore, the plaintiff did not prove that Barrier Removal was "readily achievable." (Irish at *8, citing Antolini v. McCloskey, 2022 WL 2763367, at *7 [S.D.NY, May 10, 2022]). Since the plaintiff provided "no evidence to support" her Barrier Removal claim the court granted summary judgment on that claim as well. (Irish at *9),. (Celotex Corp. v. Catrett, 477 U.S. 317, 325, [1986]).

Despite dismissal under the federal ADA claims, the court refused to exert supplemental jurisdiction and decide the New York Claims. (See Irish at *9; Milione v. City Univ. of New York, 153 AD3d 807, 808, 59 N.Y.S.3d 796 [2nd Dept, 2017]). The court dismissed the state claims with leave to refile in state court, which the plaintiff did.

The defendants claim the district court decision collaterally estops Irish from relitigating in a "subsequent action or proceeding an issue raised in a prior action or proceeding." (Ryan v NY Tel. Co., 62 NY2d 494, 501 [1984]). Rainbow must prove the claims were "previously raised and decided against [Irish]whether or not the . . . the causes of action are the same." (Id. at 500 1984). Collateral estoppel requires that "(i) the issues are identical, (ii) to the issues in the preceding case . . . litigated and decided, and (iii) there was a full and fair opportunity to litigate in the prior proceeding, and (iv) the issue was necessary to support a valid finding on the merits." (Id. at 502). The court finds that the defendant met this burden regarding collateral estoppel on the NYCRL and NYSHRL claims.

The New York City and State claims resolved in the district court are "essentially the same state and city human rights law claim[s asserted here]. "(Russell v. New York Univ., 204 AD3d 577, 578, [1st Dept, 2022]). The court in Russell noted that the NYCHRL required a separate and independent analysis of federal law and NYSHRL. (Id.) The court must analyze '"[u]niquely broad and remedial purposes which go beyond those of counterpart state and federal law rights.'" (Id., citing Williams v. New York City Hous. Auth., 61 AD3d 62, 66, [1st Dept. 2009], lv denied 13 NY3d 702 [2009]).

Nevertheless, "it would be illogical to accept as true in the state action a factual allegation rejected by the federal court where the plaintiff had a full and fair opportunity to litigate it in the federal action, as long as the same conclusion would result if the allegation were viewed under the more liberal City Human Rights Law standard." (Russel at 579, quoting Simmons—Grant v. Quinn Emanuel Urquhart & Sullivan, LLP (116 AD3d 134, 141 [1st Dept. 2014]).

The court holds that under facts and circumstances, the plaintiff is collaterally estopped from raising the New York claims even under the liberal NYCHR standard. Thus, the court dismisses the plaintiff's case under CPLR 3211(5).

This is the court's decision and order.