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concluding as a matter of first impression that the NYSHRL and by extension the NYCHRL treat "place of public accommodation" as an "extremely broad category" that does not exclude stand-alone websites and disregarding federal decisions interpreting the ADA
Summary of this case from Tavarez v. Moo Organic Chocolates, LLCOpinion
156613/2019
03-26-2021
Phillip SULLIVAN, Plaintiff, v. BDG MEDIA, INC. d/b/a Elite Daily, Defendant.
Lee Litigation Group, PLLC, New York, NY (C. K. Lee of counsel), for plaintiff. Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York, NY (Scott A. Rader of counsel), and Washington, D.C. (Tara M. Corvo, Alyssia J. Bryant, and Elana R. Safner of counsel), for defendant.
Lee Litigation Group, PLLC, New York, NY (C. K. Lee of counsel), for plaintiff.
Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C., New York, NY (Scott A. Rader of counsel), and Washington, D.C. (Tara M. Corvo, Alyssia J. Bryant, and Elana R. Safner of counsel), for defendant.
Gerald Lebovits, J. Plaintiff, Phillip Sullivan, Jr., commenced this action against defendant, BDG Media, Inc., d/b/a Elite Daily (Elite Daily), alleging that defendant violated his civil rights by denying him equal access to services offered on defendant's website.
Elite Daily owns and operates the website www.elitedaily.com. This website allows users access the news, read articles about current events and trends, and browse videos relating to popular culture. Sullivan is deaf. He alleges that in June 2019, he attempted to watch seven videos on the website, but was unable to do so properly due to their lack of closed captioning. Without closed captioning, Sullivan could not understand the audio portions of the videos he tried to access.
Sullivan then brought this action against Elite Daily. His complaint alleges that Elite Daily discriminates against deaf and hard-of-hearing individuals by posting videos on its website without closed captioning, in violation of the New York State and New York City Human Rights Laws. Sullivan seeks damages and declaratory and injunctive relief.
Elite Daily now moves to dismiss this complaint under CPLR 3211 (a) (7). The motion is granted, because Sullivan has not alleged that he requested—and was denied—a reasonable modification of the videos on Elite Daily's website that Sullivan asserts are inaccessible to him. DISCUSSION
On a motion to dismiss under CPLR 3211 (a) (7), courts must give the pleadings a liberal construction, accept the allegations in the complaint as true, and accord a plaintiff every possible favorable inference. (See Chanko v. Am. Broadcasting Companies Inc. , 27 N.Y.3d 46, 52, 29 N.Y.S.3d 879, 49 N.E.3d 1171 [2016].) However, allegations consisting of bare legal conclusions, or factual claims contradicted by documentary evidence, are not entitled to such consideration. (See CIBC Bank & Tr. Co. (Cayman) Ltd. v. Credit Lyonnais , 270 A.D.2d 138, 138, 704 N.Y.S.2d 574 [1st Dept. 2000].)
I. Elite Daily's Argument that Sullivan's Claims are Preempted
Elite Daily contends that Sullivan's claim must be dismissed as preempted by the federal Twenty-First Century Communications and Video Accessibility Act of 2010 (CVAA). The CVAA directed the Federal Communications Commission to "revise its regulations to require the provision of closed captioning on video programming delivered using Internet protocol that was published or exhibited on television with captions." ( 47 USC § 613 [2] [A].) The resulting 2012 FCC regulations require closed captioning on "all nonexempt full-length video programming delivered using Internet protocol ... if the programming is published or exhibited on television in the United States with captions." ( 47 CFR 79.4 [b] [1].)
In other words, federal law requires closed captioning on Internet-based video content only for video content that was previously shown on television with captions. Elite Daily argues that this regulatory framework preempts application of the NYSHRL and NYCHRL to require content providers to include captioning for online-only videos. This court concludes that the CVAA does not have the preemptive effect that Elite Daily ascribes to it.
A. Field Preemption
Elite Daily asserts that the CVAA and its implementing regulations occupy the field of accessibility requirements for online video content, precluding any state regulation in this area. Federal law will be considered to impliedly preempt state law under the Supremacy Clause of the United States Constitution only when "federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it." ( Balbuena v. IDR Realty LLC , 6 N.Y.3d 338, 356, 812 N.Y.S.2d 416, 845 N.E.2d 1246 [2006], quoting Cipollone v. Liggett Grp., Inc. , 505 U.S. 504, 516, 112 S.Ct. 2608, 120 L.Ed.2d 407 [1992].) Several reasons lead this court to conclude that the CVAA (and the accompanying FCC regulations) do not occupy the legislative field of online-video accessibility requirements for preemption purposes.
The CVAA amended the Telecommunications Act of 1996. In so doing, the CVAA left intact the Telecommunications Act's savings clause, which provides that the Act or any amendments thereto "shall not be construed to modify, impair, or supersede Federal, State, or local law unless expressly so provided in such Act or Amendments." (Telecommunications Act of 1996, Pub L 104-104, 110 US Stat 56, § 601 [c] [1].) This savings clause undercuts any inference that Congress intended to occupy the entire legislative field of captioning requirements. (See Greater Los Angeles Agency on Deafness, Inc. v. Cable News Network, Inc., 742 F.3d 414, 428 [9th Cir. 2014].)
There also is little reason to think that Congress intended to occupy the field with respect to online-video accessibility requirements such as captioning. The CVAA does not contain express language providing that it impairs or supersedes state law regarding video captioning, as would be needed under the Telecommunication Act's savings clause.
Further, the captioning requirements of CVAA and its implementing regulations are limited to full-length video programs (and clips excerpted from full-length programs) that previously appeared on television. These regulatory requirements simply do not address one way or another the large and ever-growing field of online-only video content. Nor is this court persuaded by Elite Daily's argument that federal regulatory silence in this area should be understood as evincing an intent to wholly occupy the field and thereby displace preemptively any state or local regulation of accessibility of online-only video content. (See Greater Los Angeles Agency on Deafness , 742 F.3d at 428 [similarly rejecting a version of this argument].)
B. Conflict Preemption
Elite Daily also contends that federal law preempts the NYSHRL and NYCHRL as a matter of conflict preemption. Such implied preemption will be found "where state law stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress." ( English v. Gen. Elec. Co. , 496 U.S. 72, 79, 110 S.Ct. 2270, 110 L.Ed.2d 65 [1990] [internal citations omitted].) No such obstacle exists here.
More precisely, Elite Daily's conflict-preemption argument draws on what is sometimes referred to as the "obstacle" branch of conflict preemption (in which state law is an obstacle to federal policy), as distinct from the "impossibility" branch of conflict preemption (in which it is literally impossible for a regulated party to comply with both state and federal law at the same time).
By enacting the CVAA, Congress intended to "update the communications laws to help ensure that individuals with disabilities are able to fully utilize communications services and equipment and better access video programming." ( S Rep 111-386, 111th Cong, 2nd Sess [2010].) Interpreting New York law to require captioning of online-only videos furthers, rather than obstructs the congressional purpose of enhancing the ability of individuals with disabilities to access video programming.
Elite Daily asserts that Congress deliberately chose to balance that objective against the regulatory burden of the CVAA by requiring closed captioning only with respect to online video that had previously aired on television. But Elite Daily has not identified any indication that Congress deliberately refrained in 2010 from requiring captioning of online-only video content because it felt that such a requirement would impose an excessive burden on content providers—rather than for example, deciding to proceed one step at a time in regulating a new (and rapidly growing and changing) form of communication. To the contrary, Elite Daily itself quotes from a CVAA committee report suggesting that Congress was open to the possibility of requiring captioning for online-only content but wished to have the benefit of further study of the issue before proceeding. (See NYSCEF No. 4 at 5, quoting H Rep 111-563 111th Cong, 2nd Sess, at 30 [2010].) Similarly, the 2014 FCC Order on closed captioning cited and quoted by Elite Daily (see id. at 6) expanded federal regulation of online video content by requiring captioning for excerpted clips of previously aired content, in addition to full-length programs. (See Second Order on Reconsideration, Matter of Closed Captioning of Internet Protocol-Delivered Video Programming , 29 FCC Record 8687, at ¶¶ 1-2, 4-9 [July 14, 2014].) Elite Daily thus has not shown that interpreting the NYSHRL and NYCHRL to require captioning for online-only video content would necessarily obstruct federal captioning policy, such that Sullivan's complaint should be dismissed on that ground at the pleading stage.
Elite Daily quotes from FCC rulemaking documents that refer to balancing the interests of users of closed captioning of online video content against the interests of providers of such content. (See NYSCEF No. 4 at 5-6.) In context, however, that interest-balancing analysis does not refer to the choice between requiring captioning only of television-first online video content as opposed to captioning of all online video content—nor could it, given the CVAA's imposition only of television-first captioning requirements. Rather, the references relied on by Elite Daily pertain to various subsidiary policy questions that arose in the course of implementing the statutory television-first requirements.
To the extent Elite Daily suggests that a state-law captioning requirement for online-only content is preempted because it "removes the flexibility granted by federal law," this court disagrees. (NYSCEF No. 4 at 11.) As Elite Daily contends, in some circumstances a state law may be preempted where that law, if enforced, would deprive a federal department or agency of policy discretion afforded by Congress. Here, however, the CVAA specifies clearly the parameters of the closed-captioning regulation that Congress is directing the FCC to promulgate. (See 47 USC § 613 [c] [2].) Applying the NYSHRL and NYCHRL to captioning of online-only video content would not narrow those parameters, or otherwise interfere with the policy discretion that the FCC retains in implementing the CVAA. It would instead add a distinct regulatory requirement outside the scope of the CVAA altogether. As discussed above, that new, added requirement would not stand as an obstacle to Congress's policy objectives in the CVAA.
II. Elite Daily's Argument that its Website is Not a Place of Public Accommodation
Next, Elite Daily argues that its website is not a place of public accommodation—as required for it to be subject to the accessibility requirements of the NYSHRL and NYCHRL. (See Executive Law § 296 [2] [a] ; Administrative Code of City of NY § 8-107 [4] [a] [1] [a].) This court is not aware of any prior decision by a New York court that addresses this question.
A decision of the court recently noted that a federal district court applying New York law has held a website to qualify as a place of public accommodation. (See Petty v. Law Office of Robert P. Santoriella, P.C. , 2020 N.Y. Slip Op. 33908[U], at *3, 2020 WL 7011753 [Sup. Ct., N.Y. County Nov. 25, 2020] [Rosado, J.], citing Andrews v. Blick Art Materials, LLC , 268 F. Supp. 3d 381, 398-401 [E.D. N.Y. 2017].) But that decision did so merely to indicate the breadth of the NYSHRL's definition of public accommodation, in the course of resolving a different interpretive question. The court did not itself have occasion in Petty to consider whether websites are within the statutory definition.
As a matter of first impression, considering the NYSHRL's text, purpose, and precedent, this court concludes that a website qualifies as a place of public accommodation under the statute.
The NYSHRL treats "place of public accommodation" as an extremely broad category. The statute's definition of this term is expressly framed in illustrative rather than exclusive or limiting terms. (See Executive Law § 292 [9].) And it is clear that "the Legislature intended that the definition of place of accommodation should be interpreted broadly." ( Matter of United States Power Squadrons v. State Human Rights Appeal Bd. , 59 N.Y.2d 401, 410, 465 N.Y.S.2d 871, 452 N.E.2d 1199 [1983].)
The statutory definition lists a host of examples—most relevantly here, "establishments dealing with goods or services of any kind." ( Executive Law § 292 [9] ; accord Matter of Cahill v. Rosa , 89 N.Y.2d 14, 21-22, 651 N.Y.S.2d 344, 674 N.E.2d 274 [1996] [construing this example broadly].) Although many of these examples are physical structures or establishments, rather than an intangible "place" like a website, the Court of Appeal emphasized in United States Power Squadrons that "place" in this statute is a "term of convenience, not limitation." ( 59 N.Y.2d at 411, 465 N.Y.S.2d 871, 452 N.E.2d 1199.) That is, public accommodations need not necessarily be "supplied at fixed places," and establishments "may discriminate by denying goods or services without denying individuals access to any particular place"—as in the case of "mail order services." ( Id. ) Thus, the "place of the public accommodation need not be a fixed location, it is the place where [regulated parties] do what they do." ( Id. ) Here, Elite Daily is a media establishment that provides services to the public in the form of articles and videos. And it provides those services through its website. This court concludes that under United States Power Squadrons ’ expansive, functional understanding of "place," Elite Daily's website—like a mail-order catalog or the like—qualifies as a place of public accommodation notwithstanding the absence of any physical location. Indeed, given the modern prevalence of e-commerce, excluding online-only commercial enterprises from the definition of "public accommodation" would severely frustrate the Legislature's intent to enable individuals with disabilities to fully enjoy the goods, services, privileges, and advantages available to the general public.
Conversely, the statutory definition's two principal categories of institutions or establishments that are not places of public accommodation are (i) various types of educational institutions; and (ii) "any institution, club or place of accommodation which proves that it is in its nature distinctly private." Elite Daily's website is neither an educational institution nor distinctly private.
Elite Daily contends that its website nonetheless does not qualify as a place of public accommodation under the NYSHRL because the website "does not sell or lease goods or services to the public," but instead "offers free content to its online readers" while deriving its revenue "from online ad placements." (NYSCEF No. 4 at 15.) But Elite Daily fails to explain why this distinction should make a dispositive difference under New York law; and this court concludes that it does not. That the business model of the "establishment" in this case is based on a more indirect means of earning revenue from the services it provides—i.e. , through advertising rather than through subscriptions or per-item charges—does not alter the nature of the services (articles and videos) themselves. And in any event, the statutory definition encompasses "retail stores and establishments dealing with goods or services of any kind. " ( Executive Law § 292 [9] [emphasis added].)
Elite Daily's argument on this point is based exclusively on federal decisions interpreting the Americans With Disabilities Act, rather than on New York precedent. (See NYSCEF No. 4 at 14-15 & n 7.)
This court is thus not persuaded by Elite Daily's argument that Sullivan's complaint fails to state a cause of action for failure to allege that Sullivan was denied access to the advantages and privileges of a place of accommodation within the meaning of the NYSHRL. And given that the NYCHRL is to be construed more broadly than the NYSHRL in favor of plaintiffs alleging discrimination, Elite Daily's argument fails perforce as to this element of Sullivan's NYCHRL claim.
III. Elite Daily's Argument that It Did Not Refuse to Make Reasonable Modifications to its Website
Elite Daily also argues that Sullivan's claims should be dismissed because he has not alleged that he sought and was denied a captioning-related modification or accommodation. This court agrees.
Under the NYSHRL, an unlawful discriminatory practice in the context of disability discrimination includes "a refusal to make reasonable modifications in policies, practices, or procedures" that are needed to enable an individual with a disability to take advantage of a place of accommodation; or, similarly, "a refusal to take such steps as may be necessary to ensure that no individual with a disability is excluded or denied services because of the absence of auxiliary aids and services." ( Executive Law § 296 [2] [c] [i]-[ii].)
As Elite Daily argues, though, Sullivan's complaint cannot establish that Elite Daily refused to make necessary modifications to its video content, or refused to take steps necessary for him to enjoy that content without auxiliary aids, because he has not alleged that he ever requested such steps or modifications in the first place. Indeed, Sullivan's opposition to the motion to dismiss effectively concedes as much. Sullivan contends that he can nonetheless state a cause of action because it would have been futile for him to make that request of Elite Daily. But his complaint does not allege any facts supporting this contention—for example, that Elite Daily had affirmatively represented that it was unwilling to add captioning to videos or provide similar accommodations, or that Sullivan was aware that Elite Daily had previously refused similar requests made by other deaf individuals.
Sullivan suggests that such allegations are unnecessary. He asserts that he had actual notice that Elite Daily "does not intend to comply" with its obligations under antidiscrimination law because Sullivan "has affirmatively attempted and failed to access Defendant's services." (NYSCEF No. 13, at 12, 13.) But for present purposes the question is not whether Elite Daily's failure to provide captioning for several videos allegedly prevented Sullivan from meaningfully accessing those videos. Rather, it is whether Sullivan has alleged a basis to conclude that Elite Daily would refuse to make reasonable modifications on request that would afford Sullivan such access. And he has not.
This case is thus similar to the decision of the U.S. District Court for the Southern District of New York in Castillo v. Hudson Theatre, LLC , in which the court held that the plaintiff had failed to state a disability-discrimination cause of action because she had not alleged facts indicating either that she had sought and been refused a modification or accommodation for her disability, or that she had a basis to believe that making such a request would be futile. ( 412 F. Supp. 3d 447, 451-452 [S.D. N.Y. 2019].) If anything, Sullivan's position is weaker than that of the plaintiff in Castillo , because Elite Daily undisputedly provides a means of accessing captioned versions of most of the videos at issue via YouTube. (See NYSCEF No. 4 at 17 & n 9.)
Sullivan disputes Elite Daily's contention that these alternative means are, in practice, reasonably equivalent to offering captioned videos directly on Elite Daily's website. (See NYSCEF No. 13 at 14-15.) The point here, though, is not whether offering links to Elite Daily content on YouTube is itself a reasonable accommodation—a question on which this court expresses no opinion here. It is that Elite Daily's apparent willingness to provide captioning for its videos when hosted on YouTube undercuts Sullivan's argument that it would have been futile for him even to request that Elite Daily provide captioning for videos on its website. And again, Sullivan has not alleged facts that might otherwise support (or salvage) his futility argument.
Sullivan relies heavily on a decision of the U.S. District Court for the Western District of Texas, which held that the wheelchair-using plaintiffs in the case did not need to have actually downloaded Uber and Lyft's mobile apps and requested rides as a precondition to suing defendants under the ADA for failing to provide ride-sharing services to wheelchair-users. (See NYSCEF No. 13 at 12-13, citing Ramos v. Uber Techs., Inc. , 2015 WL 758087, at *9 [W.D. Tex. Feb. 20, 2015].) But in reaching this conclusion, the district court in Ramos took into account on detailed affidavits from plaintiffs explaining why they believed that Uber and Lyft would deny services to—and would not accommodate—wheelchair-using customers. (See 2015 WL 758087 at *8-*9 ; accord Lowell v. Lyft, Inc. , 352 F. Supp. 3d 248, 253, 256 [S.D. N.Y. 2018] [same].) This is precisely the kind of information that is not alleged in Sullivan's complaint (or for that matter his motion to dismiss). Sullivan thus cannot satisfy a necessary element of his disability-discrimination claims. Accordingly, for the foregoing reasons, it is hereby
Although, as noted above, disability-discrimination claims under the NYCHRL may be subject to a less-demanding inquiry than NYSHRL claims, Sullivan does not identify any respect in which this court should treat his NYSHRL and NYCHRL claims differently.
ORDERED that defendant's motion to dismiss under CPLR 3211 (a) (7) is granted, and the action is dismissed, with costs and disbursements to defendant as taxed by the County Clerk upon submission of a reasonable bill of costs; and it is further
ORDERED that defendant serve a copy of this decision with notice of its entry on plaintiff; on the office of the General Clerk; and on the office of the County Clerk, which shall enter judgment accordingly.