Recitation, as required by CPLR §2219 (a), of the papers considered in the review of defendant ALAMO DRAFTHOUSE CINEMAS HOLDINGS, LLC’s motion: Papers Numbered Order to Show Cause/Notice of Motion and Affidavits/Affirmations Annexed 1 Cross-Motion and Affidavits/Affirmations Answering Affidavits/Affirmations 2 Reply Affidavits/Affirmations 3 Memorandum of Law 4, 5, 6 Upon the foregoing cited papers and after oral argument, defendant ALAMO DRAFTHOUSE CINEMAS HOLDINGS, LLC moves, pursuant to CPLR 3211 (a) (7), for an Order dismissing the Complaint and granting attorneys’ fees and expenses. Relevant Facts Defendant ALAMO DRAFTHOUSE CINEMAS HOLDINGS, LLC1 (“Defendant”) owns and operates movie theaters. Plaintiff, who was diagnosed with a hearing impairment, visited Defendant’s theater on April 7, 2019 in downtown Brooklyn to watch a movie. According to the Complaint, Plaintiff believed that Defendant offered movies with open captions based on what she read on its website2. However, upon arriving at the theater, Plaintiff was only offered an external closed captioning device, which she used to view the movie. Plaintiff commenced this action on April 12, 2019, alleging that Defendant violated §8- 107(4)(a) and §8-107(15)(a) of the New York City Administrative Code (also known as the New York City Human Rights Law, “NYCHRL”) “by failing to reasonably accommodate [her]” (Complaint, 15); and that “Defendant’s failure to provide movie screenings with open captions amounts to denying the deaf and hearing impaired, including Plaintiff, equal access to and full enjoyment of Defendant’s goods and services” (Complaint, 14). In her Complaint, Plaintiff claims that she experienced problems with the external closed captioning device provided by Defendant, including faulty batteries and connectivity issues, which rendered the captions out of sync with the movie (Complaint, 12). The instant motion ensued. Argument Defendant argues that Plaintiff fails to state a viable cause of action for violating the NYCHRL because it had provided her with reasonable accommodation by way of an external closed captioning device. Defendant contends that it had no knowledge that Plaintiff experienced issues with the provided accommodation, as she neither complained to the theater that the external closed captioning device did not work nor requested a different accommodation. Defendant further claims that open captioning is merely a preferred alternative to external closed captioning devices, and that the NYC Commission on Human Rights deems external closed captioning technology a suitable accommodation for a theater to offer an individual with a hearing impairment. In opposition, Plaintiff contends that the external closed captioning devices “often do not work,” and that she should be entitled to watch movies without leaving the theater to request for a functional device. She also avers that discrimination exists when Defendant’s practices and policies have the effect of denying her equal and full access to its movies, regardless of whether reasonable accommodations were offered. Plaintiff notes that her claim for disability discrimination rests on two theories: (1) Defendant’s practice of not offering open captions amounts to discriminatory treatment because she was treated less well than non-hearingimpaired persons; and (2) said practice has a disparate impact on Plaintiff by not affording her full and equal access. In reply, Defendant maintains that it provided Plaintiff with a reasonable accommodation pursuant to the NYCHRL. Defendant also argues that while Plaintiff may have requested to view the movie with open captions, she accepted the external closed captioning device provided to her. Therefore, Defendant satisfied its obligation to provide reasonable accommodation in the form of assistive technology. Defendant further avers that its website explains that “while open-captioning is offered only certain screening, “all Alamo locations are equipped with Closed Captioning devices and headsets for amplification and descriptive audio.” Discussion “On a motion to dismiss for failure to state a cause of action pursuant to CPLR 3211(a) (7), the complaint must be construed liberally, the factual allegations deemed to be true, and the nonmoving party granted the benefit of every possible favorable inference” (see Leon v. Martinez, 84 NY2d 83, 87 [1994]; Nestor v. Putney Twombly Hall & Hirson, LLP, 153 AD3d 840, 841 [2d Dept 2017]). While the NYCHRL “provides somewhat broader rights” than the ADA and requires “independent liberal construction” (Krist v. Kolombos Rest. Inc., 688 F3d 89, 97 [2d Cir 2012]), claims for disability discrimination arising under the NYCHRL are governed by the same legal standards as federal ADA claims (Sullivan v. Study.com LLC, 18-CV-1939 (JPO), 2019 WL 1299966, at *6 [SDNY Mar. 21, 2019]). Also, “[a]s a general matter, interpretations of a statute by the agency charged with its administration are entitled to deference from courts applying New York law” (de la Rosa v. 597 Broadway Dev. Corp., 13CV7999 (LAK) (MHD), 2015 WL 7351540, at *19 [SDNY Aug. 4, 2015]). Reasonable Accommodation “[U]nder the appropriate prima facie standard of Section 8-107(15) of the NYCHRL in the context of public accommodations, [a plaintiff] must show that: (1) [he or she] has a disability; (2) [the defendant] knew or should have known of the disability; (3) an accommodation would enable [the plaintiff] to use or enjoy the public accommodation; (4) and [the defendant] refused to provide an accommodation (In the Matter of Commission on Human Rights ex rel. Estelle Stamm, Petitioner, v. E & E Bagels, Inc., Respondent., OATH Index No. 803/14, 2016 WL 1644879, at *6). “The reasonableness of an […] accommodation is a ‘fact-specific’ question that often must be resolved by a factfinder. But in a case […] in which [a covered entity] has already taken (or offered) measures to accommodate the disability, [the covered entity] is entitled to summary judgment if, on the undisputed record, the existing accommodation is ‘plainly reasonable’” (Noll v. Intl. Bus. Machines Corp., 787 F3d 89, 94 [2d Cir 2015]). “Whether or not something constitutes a reasonable accommodation is necessarily fact-specific. Therefore, determinations on this issue must be made on a case-by-case basis” (Wernick v. Fed. Reserve Bank of New York, 91 F3d 379, 385 [2d Cir 1996]). Here, that “fact-specific” question is whether, under all the facts and circumstances of this case, the external closed captioning device offered to Plaintiff was a reasonable accommodation (See Noll at 100). Plaintiff has not set forth the factual grounds upon which the Court may find that such external closed captioning device was not a reasonable accommodation. She admits that “[t]ypical movie-theater accommodations include external closed captioning devices…If the devices don’t work, which is often the case, Plaintiff must leave the theater to ask for a working one, which takes time and means that she misses much of the movie she paid to see” (Plaintiff’s memo of law, p2). Notably, in her Complaint, Plaintiff neither alleged that she notified Defendant that her device was defective, nor that she requested a working unit or another form of accommodation. Instead, Plaintiff suggests that open captioning is the “only accommodation” to address her disability (Plaintiff’s memo of law, at 8), that she requires an accommodation in the form of open captioning in order to fully and equally enjoy the movies (id., at 14), and that refusing to make available movie screenings with open captions constitutes violations of the NYCHRL (Complaint §20). “A covered entity need not provide the specific accommodation sought; rather, a covered entity may propose reasonable alternatives that meet the specific needs of the person with the disability or that specifically address the limitation at issue” (NYC Commission of Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability, at 80) (see also Porter v. City of New York, 128 AD3d 448, 449 [1st Dept 2015] ["Defendants were not required to provide plaintiff with the specific accommodation she preferred"]). Here, the external closed captioning device offered by Defendant is a form of accommodation that “specifically address[es] the limitation at issue” (NYC Commission of Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability, at 104 ["reasonable accommodations for people with disabilities can include…the use of assistive technology. Examples…A theater may install closed captioning in certain seat sections to accommodate individuals with hearing disabilities during performances"]). Even assuming, arguendo, that Plaintiff is entitled to open captioning because she deems it the “only accommodation” to address her needs, she does not allege that she ever communicated to Defendant that only open captioning would be satisfactory (see Pimentel v. Citibank, N.A., 29 AD3d 141, 148 [1st Dept 2006] ["[D]efendant cannot be held liable for failing to provide the plaintiff with an accommodation since she failed to adequately explain the extent and limits of her restrictions”]). On the contrary, she accepted the external closed captioning device as an accommodation (see Martinez v. Mount Sinai Hosp., 670 Fed Appx 735, 736 [2d Cir 2016], finding that the defendant was entitled to summary judgment under NYCHRL when a plaintiff accepted an accommodation without countering with an alternative accommodation or indicating that what was offered was insufficient). Based on the above, this Court finds that Plaintiff failed to state a viable NYCHRL §8- 107(15)(a) claim under the theory that Defendant did not reasonably provide her with an accommodation. Disparate Treatment To assert a disparate treatment claim based on a disability under NYCHRL section 8- 107(4), Plaintiff must show that: “(1) [she] is a member of a protected class as defined by the NYCHRL; (2) [Defendant] directly or indirectly refused, withheld from, or denied an accommodation, advantage, facility, or privilege thereof based, in whole or in part, on [Plaintiff's] membership in a protected group; and (3) [Defendant] acted in such a manner and circumstances as to give rise to the inference that its actions constituted discrimination in violation of Section 8-107(4)” (Matter of Commission on Human Rights ex rel. Carlos Rodriguez v. A Plus Worldwide Limo, Inc., et al, OATH Index No. 905/15, 2019 WL 3225764, at *5). In light of the Court’s finding that Plaintiff failed to establish that Defendant did not reasonably provide her with an accommodation, her NYCHRL claim under the disparate treatment theory fails. Disparate Impact “While the central question in a disparate treatment case is whether the protected trait, at least in part, motivated the covered entity’s decision or actions, disparate impact claims involve policies or practices that are facially neutral, but disproportionately or more harshly impact one group” (NYC Commission of Human Rights Legal Enforcement Guidance on Discrimination on the Basis of Disability, at 25). The NYC Commission of Human Rights identified two examples of neutral policies with disparate impact in public accommodations: “No outside food” policies that may exclude people with diabetes who need to eat frequently to control their glucose level, and “no motorized devices” policies that may exclude people with disabilities to use wheelchairs and electric scooters (id., at 30-31). Furthermore, NYCHRL §8-107 (17) (a) provides, in pertinent part, that: “An unlawful discriminatory practice based upon disparate impact is established when: (1) [the Plaintiff] demonstrates that a policy or practice of a covered entity…results in a disparate impact to the detriment of any group protected by the provisions of this chapter; and (2) the covered entity fails to plead and prove as an affirmative defense that…such policy or practice does not contribute to the disparate impact[.]“ Here, Plaintiff argues that Defendant’s policy and practice of not offering open-captioned movies disparately impacts hearing-impaired individuals. Plaintiff did not adduce evidence of such a policy or practice (see In the Matter of the Complaint of Paris Baldacci, et al., Complainants v. Jack Lalanne Fitness Centers, Respondent, 1995 WL 1052260, at *3 ["A disparate impact claim […] cannot prevail based on conclusory allegations”]). The Complaint, however, references Defendant’s website, which states that “Screenings and Assistive Technology for our deaf and hard of hearing guests. Open Caption Screenings. Check the list below for current new release films with upcoming Open Caption screenings. Tickets will go on sale by Tuesday for the upcoming weekend if there are films scheduled. If there are not films listed below, it indicates that there are no Open Caption screenings scheduled for this week. However, all Alamo locations are equipped with Closed Captioning devices and headsets for amplification and descriptive audio. Simply ask the box office when you arrive and they’ll provide you with the technology.” (https://drafthouse.com/nyc/program/open-caption-screenings) Thus, it is evident that Defendant’s policy or practice does not exclude open captioning. Therefore, the Court finds that Plaintiff has not established a prima facie disparate impact claim under the NYCHRL. Conclusion Accordingly, based on the above, defendant ALAMO DRAFTHOUSE CINEMAS HOLDINGS, LLC’s motion is GRANTED TO THE EXTENT that plaintiff’s complaint is dismissed. The branch of defendant’s motion for attorneys’ fees is DENIED as it failed to explain why such relief should be granted. This constitutes the Decision and Order of the court.
