DECISION AND ORDER INTRODUCTION Plaintiff Ronnie Zuchegno (“Plaintiff”), a deaf resident of the Town of Henrietta, New York, claims that Defendants FQSR, LLC (“FQSR”) and Yum! Brands, Inc. (“Yum!”) (collectively, “Defendants”) violated the Americans with Disabilities Act (the “ADA”), 42 U.S.C. §§121821 et seq., and violated New York State Human Rights Law (“NYSHRL”), Article 15 of the New York Executive Law §290, et seq., by failing to provide an accommodation that would enable Plaintiff to utilize a drive-through facility at a Kentucky Fried Chicken restaurant. ECF No. 34 at 1-2, 5. The operative complaint, Plaintiff’s Second Amended Complaint (“SAC”), ECF No. 34, was filed on October 21, 2021. FQSR filed an answer on November 3, 2021. ECF No. 37. Yum! moved to dismiss the SAC pursuant to Federal Rule of Civil Procedure 12(b)(6). ECF No. 38. Yum! argues that Plaintiff has failed to state a claim because he has not plausibly alleged (1) “that Yum! ‘owns, leases, or operates’ the [KFC restaurant],” as required under the ADA; and (2) “Yum!’s ‘day-to-day’ control over FQSR with respect to its employees’ conduct and its decision regarding accessibility technology,” as required to state a claim under the NYSHRL. ECF No. 38-1 at 10, 13. Plaintiff responded in opposition to Yum!’s motion, ECF No. 41, and Yum! replied. ECF No. 42. For the reasons set forth below, Yum!’s motion to dismiss is GRANTED. FACTUAL BACKGROUND When courts evaluate motions to dismiss, they must accept the facts alleged in the complaint as true and draw all reasonable inferences from those facts in favor of the non-moving party. Nat’l Fed. of the Blind v. Scribd Inc., 97 F. Supp. 3d 565, 567 (D. Vt. 2015). Therefore, for the purposes of evaluating Yum!’s motion, the facts below are taken from Plaintiff’s SAC and are accepted as true. A. January 2019 Incident Plaintiff “is deaf and is significantly limited in the life activity of hearing.” ECF No. 34 8. One night in January 2019, Plaintiff was driving his three children home from swimming and decided to stop at a Kentucky Fried Chicken restaurant in Brighton, New York (the “Brighton KFC”) to pick up dinner. Id.
15, 19-20. Rather than go inside the restaurant, Plaintiff opted for the “drive thru” since his children “were still wet from the pool and it was a cold January night.” Id. 21. Plaintiff pulled his vehicle into the drive-through lane and encountered “the order kiosk” which had an intercom for placing a food order. Id.
