ADA tester has standing to sue Nanuet Mall for disasbility violations

The Court of Appeals has reinstated a disability discrimination suit brought by a wheelchair-bound paraplegic who sued Nanuet Mall over public access violations and wants to return to the mall, in part, to test its compliance with the Americans with Disabilities Act.

The case is Harty v. Simon Property Group, a summary order decided on June 29. The Second Circuit (Miner, Raggi and Lynch) makes two rulings: Harty has standing to bring this action and he also states a claim for disability discrimination.

The Americans with Disabilities Act allows plaintiffs to sue for injunctive relief. But in order to get an injunction, the plaintiff has to show that he suffered an ADA violation at the public establishment and that he intends to return there in the future such that he will likely suffer another violation someday. The district court held that Harty had no standing to seek an injunction, but the Court of Appeals reverses because he plans to return as a patron "to avail himself of the goods and services offered to the public at the property" and also as a tester to make sure that the Nanuet Mall is complying with the ADA. He also travels to gun shows around the country, and in returning to the area for that purpose, he intends to shop at Nanuet Mall. On remand, the district court is free to conduct discovery and fact-finding to ensure that Harty truly intends to return to the Nanuet Mall in the future.

The case law in the area of ADA standing is sparse; this could have been a published opinion. The holding that Harty has standing, in part, because he wants to return as a tester seems innovative in light of the district court's ruling, as follows:

Plaintiff's status as a tester does not confer standing. See Judy v. Pingue, 2009 U.S. Dist. LEXIS 109990 (S.D.Ohio Nov. 25, 2009) (“Any tester status that [Plaintiff] might possess does not confer standing to seek prospective relief where he cannot show a reasonable likelihood of returning to [Defendant's] property.”) (collecting cases); Kelly Johnson, Note: Testers Standing Up for Title III of the ADA, 59 Case W. Res. 683, 698 (2009) (“The vast majority of courts that have dealt with the issue [of testers in the context of ADA litigation] have denied standing to plaintiffs.”) (collecting cases); see, e.g., Access 4 All, Inc. v. Thirty E. 30th St., LLC, 2006 U.S. Dist. LEXIS 96742, at *30-31, 2009 WL 4261389 (S.D.N.Y. Dec. 11, 2006) (intending to return to Property to assess compliance with ADA is not sufficient to establish standing).

The other question on appeal is whether Harty has a real claim under the ADA on the merits. The Second Circuit says that he does. You can read this decision until you are blue in the face and have no idea what actually happened to Harty to prompt this lawsuit. The district court opinion says that "Plaintiff, who 'is mobility impaired and is bound to ambulate in a wheelchair,' alleges that Defendant has discriminated [and is continuing to discriminate] against the Plaintiff by denying him access to, and full and equal enjoyment of, the goods, services, facilities, privileges, advantages, and/or accommodations of the subject property, as prohibited by [the ADA]. Defendant's alleged violations include, but are not limited to, lack of accessible routes, accessible public restrooms, and access to goods and services."