Levin-Epstein & Associates, P.C. obtained a report and recommendation for the dismissal on summary judgment of all federal claims under the Americans with Disabilities Act of 1990, 42 U.S.C. § et seq. against our management-side clients.
United States District Court Southern District of New York
Amy McCloskey et al.,
STEWART D. AARON, UNITED STATES MAGISTRATE JUDGE. TO THE HONORABLE GEORGE B. DANIELS, UNITED STATES DISTRICT JUDGE:
Before the Court is a motion by Defendants Amy McCloskey (“McCloskey”), Theresa Laurent (“Laurent”), Eddie C K Chung (“Chung”) (collectively, the “Individual Defendants”), Dimur Enterprises Inc. (“Dimur”) and C&S Millennium Real Estate LLC (“C&S) (together with Individual Defendants, the “Defendants”) seeking summary judgment dismissing the Complaint filed by Plaintiff Dino Antolini (“Antolini” or “Plaintiff”), and seeking sanctions against Plaintiff’s counsel, Stuart H. Finkelstein (“Attorney Finkelstein”). (Defs.’ 1/3/22 Not. of Mot., ECF No. 268.) For the reasons set forth below, I respectfully recommend that Defendants’ motion for summary judgment be GRANTED IN PART and that the Court decline to exercise supplemental jurisdiction over Plaintiff’s claims under the New York City Human Rights Law (“NYCHRL”). Additionally, I respectfully recommend that Defendants’ motion for sanctions be DENIED.
Antolini is disabled and uses a wheelchair for mobility. (Defendants’ Rule 56.1 Statement (“Defs.’ SOF”), ECF No. 270, ¶ 2; Plaintiff’s Counter Rule 56.1 Statement (“Pl.’s SOF”), ECF No. 279, ¶ 2.) Antolini alleges that, on an unspecified date, he was denied access to the specialty cocktail bar, Madame X, located at 94 West Houston Street, New York, New York 10012, due to several barriers both in the exterior and interior of Madame X. (Defs.’ SOF ¶¶ 4-5; Pl.’s SOF ¶¶ 4-5.)
Madame X is operated by Dimur, as tenant, and is owned by C&S, Dimur’s landlord. (Defs.’ SOF ¶¶ 4, 12-14; Pl.’s SOF ¶¶ 4, 12-14.) Dimur has two shareholders, McCloskey, who is the president and owns 78 percent of the shares, and Laurent, who owns 22 percent of the shares. (Defs.’ SOF ¶¶ 15-17; Pl.’s SOF ¶¶ 15-17.) Antolini alleges that the property located at 94 West Houston Street, New York, New York 10012, where Madame X is located, is owned by C&S and Chung. (See Compl., ECF No. 1, ¶ 7.) Defendants assert that C&S is the record owner of the property, not Chung.1 (See Defs.’ 1/19/21 Answer, ECF No. 136, ¶ 7.)
On September 28, 2019, Antolini commenced this action alleging claims against the Defendants under the Americans with Disabilities Act (“ADA”), the New York State Human Rights Law (“NYSHRL"), the NYCHRL and the New York State Civil Rights Law (“NYSCRL”), as well as a claim for common law negligence. (Compl. ¶¶ 31-85.) On October 22, 2019, Dimur, McCloskey and Laurent filed their Answer, in which they assert affirmative defenses and counterclaims. (Defs.’ 10/22/19 Answer, ECF No. 16.) On June 1, 2020, this case was referred to the undersigned for general pretrial purposes and to make reports and recommendations regarding dispositive motions. (See Order of Ref., ECF No. 36.)
On September 25, 2020, Plaintiff’s expert witness, Billy Chen (“Chen”), an architect, conducted a visual inspection of the interior and exterior of Madame X. (Defs.’ SOF ¶ 68; Pl.’s SOF ¶ 68.) On October 6, 2020, Chen published his findings regarding ADA accessibility issues at Madame X in a three-page report (the “Chen Report”). (Defs.’ SOF ¶¶ 68-78; Pl.’s SOF ¶¶ 68-78; Chen Report, ECF No. 271-4.)
On January 19, 2021, after the default judgments against them were vacated, Chung and C&S filed their Answer, in which they assert affirmative defenses and counterclaims. (Defs.’ 1/19/21 Answer.) On April 15, 2021, one of Defendants’ expert witnesses, CCI Consultants Professional Engineers, PC (“CCI”), conducted an on-site survey of Madame X. (See 5/13/21 CCI Report, ECF No. 281-1, at PDF p. 5.) On May 13, 2021, CCH published a report analyzing the Chen Report, wherein CCI concluded that “the Chen Report includes vague observations which were not based on specific accessibility requirements.” (See id. at PDF pp. 4-19.)
On May 12, 2021, another of Defendants’ expert witnesses, Hany Demetry (“Demetry”) of Sotir Associates, LLC (“Sotir”), conducted an on-site survey of Madame X. (See 5/13/21 Sotir Report, ECF No. 281-1, at PDF p. 27.) On May 13, 2021, Demetry published his findings regarding ADA accessibility issues and an analysis of the Chen Report. (See id. at PDF pp. 27-38.)
Discovery closed on November 15, 2021. (See 9/16/21 Order, ECF No. 239, ¶ 2.) On January 3, 2022, Defendants filed the instant motion for summary judgment and for sanctions against Attorney Finkelstein. (See Defs.’ 1/3/22 Not. of Mot.) On February 9, 2022, Plaintiff filed his papers in opposition to Defendants’ motion. (See Pl.’s SOF; Finkelstein 2/9/22 Decl., ECF No. 280; Pl.’s Opp. Mem., ECF No. 281.) Plaintiff attached to his opposition memorandum a Declaration of Plaintiff’s expert witness, Chen, dated February 4, 2022 (the “Chen Declaration”), wherein Chen expanded upon aspects of his original expert report and responded to Defendants’ expert reports. (See Chen 2/4/22 Decl., ECF No. 281-2, at PDF pp. 1-6.) On February 22, 2022, Defendants filed their reply. (See Defs.’ Reply Mem., ECF No. 282.)
A. Summary Judgment Legal Standards
Summary judgment is appropriate where there are no genuine issues of material fact, and the movant is entitled to judgment as a matter of law. See Fed. R. Civ. P. 56(c); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-50 (1986). “[T]he trial court’s task at the summary judgment motion stage of the litigation is carefully limited to discerning whether there are any genuine issues of material fact to be tried, not to deciding them. Its duty, in short, is confined at this point to issue finding; it does not extend to issue-resolution.” Gallo v. Prudential Residential Servs. L.P., 22 F.3d 1219, 1224 (2d Cir. 1994). In determining whether summary judgment is appropriate, a court must resolve all ambiguities and draw all reasonable inferences against the moving party. See Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587-88 (1986) (citing United States v. Diebold, Inc., 369 U.S. 654, 655 (1962)); see also Gallo, 22 F.3d at 1223. Summary judgment is improper if there is any evidence in the record from any source from which a reasonable inference could be drawn in favor of the nonmoving party. See Chambers v. TRM Copy Ctrs. Corp., 43 F.3d 29, 37 (2d Cir. 1994).
B. Legal Standards Under Title III Of The ADA
Title III of the ADA provides that “[n]o individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation.” 42 U.S.C. § 12182(a).
The ADA empowered the Department of Justice (“DOJ”) to “promulgate regulations—including ‘standards applicable to [public accommodations]’ to carry out enforcement of Title III.” Range v. 535 Broadway Grp. LLC, No. 17-CV-00423, 2019 WL 4182966, at *3 (S.D.N.Y. Sept. 3, 2019) (quoting 42 U.S.C. § 12186(b)). On July 26, 1991, the DOJ issued rules implementing Title III, which are codified at 28 CFR part 36. Appendix D to part 36 contains the 1991 ADA Standards for Accessible Design, which are based upon the 1991 Americans with Disabilities Act Accessibility Guidelines (“ADAAG”).2 These standards “clarify the obligations of those businesses operating places of public accommodation.” Shalto v. Bay of Bengal Kabob Corp., No. 12-CV-00920 (KAM) (VMS), 2013 WL 867429, at *4 (E.D.N.Y. Feb. 6, 2013), report and recommendation adopted as modified, 2013 WL 867420 (E.D.N.Y. Mar. 7, 2013); see also Kreisler v. Second Ave. Diner Corp., No. 10-CV-07592 (RJS), 2012 WL 3961304, at *6 (S.D.N.Y. Sept. 11, 2012), aff’d, 731 F.3d 184 (2d Cir. 2013).3
To establish a violation of Title III of the ADA, a plaintiff must establish “(1) [that] he or she is disabled within the meaning of the ADA; (2) that the defendants own, lease, or operate a place of public accommodation; and (3) that the defendants discriminated against the plaintiff within the meaning of the ADA.” Roberts v. Royal Atl. Corp., 542 F.3d 363, 368 (2d Cir. 2008). The relevant legal standard for the analysis of the third prong of discrimination depends on whether the facility at issue has been “altered in a manner that affects or could affect its usability.” Antolini v. Thurman, No. 19-CV-09674 (JMF) (KNF), 2021 WL 3115169, at *2 (S.D.N.Y. July 21, 2021) (citing Roberts, 542 F.3d at 369).
C. Application Of Legal Standards To Plaintiff’s ADA Claims
The Complaint identifies the following barriers to access that Plaintiff asserts violate the ADA: (1) lack of an accessible entrance/exit; (2) lack of accessible routes through the restaurant and bar; (3) an inaccessible service counter; (4) lack of an accessible pathway to the restrooms; and (5) lack of accessible restrooms.4 (Compl. ¶ 22.)
Defendants argue that summary judgment should be granted in their favor because Plaintiff has failed to meet his burden of articulating a plausible proposal for removal of the alleged barriers, “the costs of which, facially, do not clearly exceed its benefits.”5 (Defs.’ Mem. at 9 (citing Thurman, 2021 WL 3115169 at *3).) Defendants contend that the “readily achievable” standard applies because Plaintiff has not identified any modifications to Madame X that could be considered alterations under the ADA. (See id.) Defendants further contend that the Chen Report is unreliable and lacks evidentiary value and that the Chen Declaration, submitted for the first time in opposition to Defendants’ motion, should not be considered by the Court. (See id. at 9-16; see also Defs.’ Reply Mem. at 4-6.) Thus, the Court first considers whether any portion of Madame X has been altered and whether to consider the Chen Declaration before turning to the parties’ remaining arguments.
D. Plaintiff’s State And City Law Claims
Defendants move for sanctions against Attorney Finkelstein under 28 U.S.C. § 1927 and the Court’s inherent authority purportedly because Plaintiff’s ADA claims against the Individual Defendants are frivolous and, according to Defendants, brought to “unreasonably and vexatiously multipl[y] the proceedings.” (See Defs.’ Mem. at 20-21.)
A. Legal Standards
Under 28 U.S.C. § 1927 (“Section 1927”), sanctions may be imposed on any attorney “who so multiplies the proceedings in any case unreasonably and vexatiously.” 28 U.S.C. § 1927. The Court also has inherent power to sanction an attorney, “a power born of the practical necessity that courts be able ‘to manage their own affairs so as to achieve the orderly and expeditious disposition of cases.’” Revson v. Cinque & Cinque, 221 F.3d 71, 78 (2d Cir. 2000) (quoting Chambers v. NASCO, Inc., 501 U.S. 32, 43 (1991)). The imposition of sanctions under Section 1927 or the Court’s inherent powers, the Court “must find clear evidence that (1) the offending party’s claims were entirely without color, and (2) the claims were brought in bad faith.” Eisemann v. Greene, 204 F.3d 393, 396 (2d Cir. 2000). A claim is entirely without color when it lacks any legal or factual basis. Wolters Kluwer Fin. Servs., Inc. v. Scivantage, 564 F.3d 110, 114 (2d Cir. 2009). Bad faith may be inferred when the attorney’s “actions are so completely without merit as to require the conclusion that they must have been undertaken for some improper purpose such as delay.” Schlaifer Nance & Co. v. Estate of Warhol, 194 F.3d 323, 336 (2d Cir.1999). Both findings “must be supported by a high degree of specificity in the factual findings.” Id.
Defendants contend that Plaintiff’s ADA claims against the Individual Defendants are frivolous because “[c]ase law is legion that there is no individual liability under the ADA.” (See Defs.’ Mem. at 20.) Defendants are correct there is no individual liability for claims under the ADA seeking damages. See Nelson v. City of New York, No. 11-CV-02732 (JPO), 2013 WL 4437224, at *14 (S.D.N.Y. Aug. 19, 2013) (finding no individual liability under the ADA where the plaintiff sought damages); Goonewardena v. New York, 475 F. Supp. 2d 310, 321 (S.D.N.Y. 2007) (same). Here, however, Plaintiff only is seeking declaratory and injunctive relief against the Individual Defendants on its ADA claims. (See Compl. at PDF p. 18.) District Courts in the Second Circuit have found that an individual may be liable under Title III of the ADA where the individual “operates” a place of public accommodation within the meaning of the ADA. See Doe v. NYSARC Tr. Serv., Inc., No. 20-CV-00801 (BKS) (CFH), 2020 WL 5757478, at *5 (N.D.N.Y. Sept. 28, 2020), report and recommendation adopted, 2020 WL 7040982 (N.D.N.Y. Dec. 1, 2020); Bebry v. ALJAC LLC, 954 F. Supp. 2d 173, 178 (E.D.N.Y. 2013); Bowen v. Rubin, 385 F. Supp. 2d 168, 180 (E.D.N.Y. 2005). Courts have interpreted the term “operate” as meaning the individual defendant was in a position of authority and had the power and discretion to perform potentially discriminatory acts. See Doe, 2020 WL 5757478, at *5; Bebry, 954 F. Supp. 2d at 178.
Curiously, in the portions of their legal memoranda addressing summary judgment, Defendants did not separately seek dismissal of the claims asserted against the Individual Defendants. Nor did Defendants include in their 56.1 Statement undisputed facts as to why the claims against the Individual Defendants should be dismissed.
Defendants did include as part of the summary judgment record the transcript of McCloskey’s deposition. McCloskey’s testimony reflects that she potentially could have individual liability for any ADA violations at Madame X. McCloskey testified that she owned 78 percent of the shares of Dimur, the entity that owns Madame X, and was president of Dimur. (See 2/17/21 McCloskey Dep. at 18-19.) Although McCloskey testified that Karen Kramer handled the day-to-day operations of Madame X, McCloskey admitted that she herself wrote the rent checks and had rather detailed knowledge of renovations done over twenty years ago. (See id. at 22-24, 48-51.) In these circumstances, there is a factual dispute as to whether McCloskey was in a position of authority and had the power and discretion to make decisions regarding the removal of barriers to access to Madame X. See Bowen, 385 F. Supp. 2d at 180-81 (denying summary judgment as to individual defendant who was sole shareholder and president of corporate entity). It certainly cannot be said that the ADA claims against McCloskey are frivolous.
With respect to the other Individual Defendants, i.e., Laurent and Chung, there is not enough of a record before the Court to assess the claims of Individual Liability against them. Defendants failed to file before the Court their deposition transcripts,15 or any sworn testimony from them by way of affidavit or declaration.
Based on the foregoing, the Court finds that sanctions against Attorney Finkelstein are not appropriate with respect to his assertion of claims against the Individual Defendants. Even though there may be a scant factual basis for the claims against Laurent and Chung, the Court cannot say that the ADA claims against any of the Individual Defendants seeking injunctive relief were so entirely without merit as to require the conclusion that any of them were named as defendants so as to delay the proceedings. See Schlaifer Nance & Co., 194 F.3d at 336. Thus, the Court respectfully recommends that Defendants’ motion for sanctions be denied.16
For the foregoing reasons, I respectfully recommend that Defendants’ motion for summary judgment be GRANTED with respect to Plaintiff’s ADA, NYSHRL, NYSCRL and negligence claims and that the Court decline to exercise supplemental jurisdiction over Plaintiff’s NYCHRL claims. Additionally, I respectfully recommend that Defendants’ motion for sanctions be DENIED.
NOTICE OF PROCEDURE FOR FILING OBJECTIONS TO THIS REPORT AND RECOMMENDATION
The parties shall have fourteen (14) days (including weekends and holidays) from service of this Report and Recommendation and Order to file written objections to this Report and Recommendation pursuant to 28 U.S.C. § 636(b)(1) and Rule 72(b) of the Federal Rules of Civil Procedure. See also Fed. R. Civ. P. 6(a), (d) (adding three additional days when service is made under Fed. R. Civ. P. 5(b)(2)(C), (D) or (F)). A party may respond to another party’s objections within fourteen days after being served with a copy. Fed. R. Civ. P. 72(b)(2). Any requests for an extension of time for filing objections must be addressed to Judge Daniels.
FAILURE TO OBJECT WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See 28 U.S.C. § 636(b)(1); Fed. R. Civ. P. 6(a), 6(d), 72(b); Thomas v. Arn, 474 U.S. 140 (1985).
1 Defendants’ 56.1 Statement does not address Chung, except to note that his deposition was taken. (See Defs.’ SOF ¶ 60.)
2 The ADAAG originally were published on July 26, 1991 as 28 CFR Part 36, Appendix A, but were redesignated as 28 CFR Part 36, Appendix D, effective March 15, 2011. See Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities, 75 FR 56236-01.
3 Because the 1991 Standards incorporate the ADAAG, those terms often are used interchangeably. Here, the Court cites to these standards as the “1991 ADAAG.” In 2010, the DOJ promulgated regulations adopting revised standards called the 2010 ADA Standards for Accessible Design (the “2010 Standards”), which became effective on March 15, 2012. See Kreisler, 2012 WL 3961304, at *6 n.5 (citing 28 C.F.R. § 36; AG Order No. 3181–2010); see also ADA Standards for Accessible Design, available at https://www.ada.gov/2010ADAstandards_index.htm (last visited May 5, 2022). The 2010 Standards consist of a revised version of the ADAAG from 2004 and the requirements contained in 28 CFR § 35.151. See 28 CFR part 36, Appendix B.
4 To the extent Plaintiff raises other barriers in opposition to Defendant’s motion, the Court does not consider them since they were not alleged in the Complaint. Plaintiff “may not use his submission in opposition to summary judgment as a back door means to amend the complaint.” Thurman, 2021 WL 3115169, at *5 (quoting Isaac v. City of New York, 701 F. Supp. 2d 477, 491 (S.D.N.Y. 2010)).
5 Plaintiff’s argument that the burden-shifting analysis does not apply at the summary judgment stage is without merit. See Thurman, 2021 WL 3115169, at *2 (applying burden-shifting analysis in summary judgment context).
6 Although McCloskey refers to the “second floor,” she appears to be referring to the first floor, which is the top floor of Madame X’s two floors (a basement-level floor and a first floor). (See 10/6/20 Chen Report at 1; 5/13/21 Sotir Report at PDF p. 27; Architectural Plans, ECF Nos. 281-5, 281-6, 281-7.) The Court construes McCloskey’s reference to the “second floor” as actually referring to the first floor.
7 Nor is the Chen Declaration an appropriate supplemental report pursuant to Rule 26(e). See Fed. R. Civ. P. 26(e) (permitting a party to supplement its Rule 26(a) disclosures, including expert disclosures, when that “party learns that in some material respect the disclosure or response is incomplete or incorrect, and if the additional or corrective information has not otherwise been made known to the other parties during the discovery process . . ..”). In his Declaration, Chen does not rely upon any new information that would provide a basis to supplement his original report. Rather, Chen relied on the same September 25, 2020 inspection of Madame X that he relied on in making his original report. (Compare Chen 2/4/22 Decl. ¶ 5 with Chen Report at 2.). “[A]n expert’s supplemental report that ‘does not rely [on] any information that was previously unknown’ to him or her is not an appropriate supplemental report under Federal Rule of Civil Procedure 26(e).” Rodriguez v. Vill. of Port Chester, 535 F. Supp. 3d 202, 211 (S.D.N.Y. 2021); see also Lidle v. Cirrus Design Corp., No. 08-CV-01253 (BSJ) (HBP), 2009 WL 4907201, at *5 (S.D.N.Y. Dec. 18, 2009) (“Rule 26(e) is not, however, a vehicle to permit a party to serve a deficient opening report and then remedy the deficiency through the expedient of a ‘supplemental’ report.”).
8 Accordingly, the Court need not reach Defendants’ other evidentiary arguments regarding the Chen Report. (See Defs.’ Mem. at 9-11.)
9 Even if the Court were to consider the Chen Declaration, Chen’s suggestion that a ramp with a side approach could be installed still does not meet his burden to set forth a plausible proposal since he gives no indication of how such a ramp could be installed. See Thurman, 2021 WL 3115169, at *4 (report not plausible proposal for installation when provided no detail on where or how lifts could be installed).
10 Similarly, in Kreisler, the Court considered whether Plaintiff could meet his burden to articulate a plausible proposal for enlarging the restrooms by adopting the cost estimate of defendant’s expert. Id., 2012 WL 3961304, at *12. However, there, as in de la Rosa, the defendants had articulated a plausible proposal for removal.
11 As set forth above, although Defendants argue that the readily achievable standard applies, the Court applies the more rigorous post-alteration standard to Plaintiff’s claims regarding the interior or Madame X.
12 Section 4.3.3 states, in relevant part, that “the minimum clear width of an accessible route shall be 36 in (915 mm) except at doors.” ADAAG § 4.3.3.
13 Section 5.2 of the 1991 ADAAG provides: [w]here food or drink is served at counters exceeding 34 in (865 mm) in height for consumption by customers seated on stools or standing at the counter, a portion of the main counter which is 60 in (1525 mm) in length minimum shall be provided [at an accessible height] or service shall be available at accessible tables within the same area.” 1991 ADAAG § 5.2.
14 Defendants also argue that Plaintiff lacks standing to seek injunctive relief under the ADA because Plaintiff does not genuinely intend to return to Madame X. (See Defs.’ Mem. at 16-17.) The Second Circuit has held that in order for a plaintiff to establish standing under the ADA, he must show: “(1) the plaintiff alleged past injury under the ADA; (2) it was reasonable to infer that the discriminatory treatment would continue; and (3) it was reasonable to infer, based on the past frequency of plaintiff’s visits and the proximity of defendants’ restaurants to plaintiff’s home, that plaintiff intended to return to the subject location.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187-88 (2d Cir. 2013). Whether or not a plaintiff intends to return to the facility at issue is a “highly fact-sensitive inquiry[.]” Ortiz v. Westchester Med. Ctr. Health Care Corp., No. 15-CV-05432 (NSR), 2016 WL 6901314, at *5 (S.D.N.Y. Nov. 18, 2016). The Court finds that there is a genuine issue of material fact regarding Plaintiff’s intent to return to Madame X. When asked at his deposition whether he had future plans to go back to Madame X, Plaintiff responded “[y]eah, if I could get in.” (See 4/19/21 Antolini Dep., ECF No. 271-1, at 141.) Based upon the record before the Court, it is plausible that Plaintiff, who has a residence in near proximity of Madame X and passes Madame X when he goes out (see 4/19/21 Antolini Dep. at 141, 143), would act on his stated intention of returning to Madame X. Thus, Defendants are not entitled to summary judgment on this basis. See Access 4 All, Inc. v. Trump Int’l Hotel & Tower Condo., 458 F. Supp. 2d 160, 168 (S.D.N.Y. 2006) (material issue of fact regarding plaintiff’s intent to return to Trump Tower where plaintiff had personal and business connections in New York and stated a “definite intention” to return to Trump Tower).
15 Defendants contend that Plaintiff’s counsel refused their requests for such transcripts. (See Defs.’ SOF ¶¶ 57, 60.) Even if that were the case, Defendants could have procured the transcripts directly from the court reporting service, or could have sought court intervention.
16 Defendants also seek sanctions, pursuant to 42 U.S.C. § 12205 and 42 U.S.C. § 2000a-3(b), “[o]ut of an abundance of caution.” (See Defs.’ Mem. at 21 n.43; Defs.’ Reply at 10 n.11.) However, Defendants do not provide substantive argument for sanctions pursuant to these statutes in their memoranda. Further, under both of these statutes, it is within the Court’s discretion to award attorneys’ fees to the prevailing party. See Guglielmo v. Nebraska Furniture Mart, Inc., No. 19-CV-11197 (KPF), 2021 WL 4124660, at *2 (S.D.N.Y. Sept. 9, 2021); Union of Needletrades, Indus. & Textile Emps., AFL-CIO, CLC v. U.S. I.N.S., 202 F. Supp. 2d 265, 269 n.1 (S.D.N.Y. 2002), aff’d, 336 F.3d 200 (2d Cir. 2003). Given that the Court finds that sanctions are not warranted pursuant to 28 U.S.C. § 1927 because Plaintiff’s claims against the Individual Defendants are not frivolous, the Court, in its discretion, declines to recommend that the Court grant attorneys’ fees under 42 U.S.C. § 12205 and 42 U.S.C. § 2000a-2(b).