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Diaz v. Lobel's of New York LLC

Claim Suit Mooted by Site's Upgrade Rebutted; Issues Exist if Access Barriers Violate ADA

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MEMORANDUM & ORDER Plaintiff Christhian Diaz brings this putative class action against Defendant Lobel’s of New York, LLC (“Lobel’s”) alleging that its website is inaccessible to blind customers in violation of Title III of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §12101 et seq. Currently pending before this court are the Defendant’s motion to dismiss or in the alternative for summary judgment and Plaintiff’s motion for summary judgment. (See Def. Mot. to Dismiss or for Summ. J. (“Def. Mot.”) (Dkt. 37); Pl. Mot. for Summ. J. (“Pl. Mot.”) (Dkt. 47).) For the following reasons, the court DENIES both parties’ motions.I. BACKGROUNDA. Factual BackgroundThe following statement of facts is largely taken from the parties’ Local Rule 56.1 statements and declarations, with the evidence “constru[ed]…in the light most favorable to the non-moving party.” Wandering Dago, Inc. v. Destito, 879 F.3d 20, 30 (2d Cir. 2018) (internal citation and quotation marks omitted). (See Def. Statement of Material Facts (“Def. 56.1″) (Dkt. 39); Pl. Resp. to Def. 56.1 (“Pl. 56.1 Resp.”) (Dkt. 41); Pl. Statement of Material Facts (“Pl. 56.1″) (Dkt. 48); Def. Resp. to Pl. 56.1 (“Def. 56.1 Resp.”) (Dkt. 51).) The parties agree on the following facts, except where otherwise noted.Plaintiff Christhian Diaz is blind and uses screen-reading software, named JAWS and NVDA, to access the internet and read website content. (Pl. 56.1 2.) Defendant owns and operates the website www.lobels.com (the “Website”). (Def. 56.1 1.) Defendant uses the website to market and sell more than 400 different products, including fresh meats, other food products, merchandise, and gift packages. (Id.

2-3.) Defendant also uses its website to post recipes and information about its business. (Id. 4.) The Website consists of nearly 1,000 separate pages. (Id.

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