Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 1 of 26

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x
HIMELDA MENDEZ, on behalf of herself and all ::others similarly situated::Plaintiffs,
:
:
v.
:
:
APPLE INC.,::
Defendant.
::- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -x

CLASS ACTION COMPLAINTAND
DEMAND FOR JURY TRIAL

INTRODUCTION
1.

Plaintiff HIMELDA MENDEZ, on behalf of herself and others similarly situated,asserts the following claims against Defendant APPLE INC. (hereinafter“APPLE”) as follows.

2.

Plaintiff is a visually-impaired and legally blind person who requires screenreading software to read website content using her computer. Plaintiff uses theterms “blind” or “visually-impaired” to refer to all people with visual impairments
who meet the legal definition of blindness in that they have a visual acuity withcorrection of less than or equal to 20 x 200. Some blind people who meet thisdefinition have limited vision. Others have no vision.

3.

Based on a 2010 U.S. Census Bureau report, approximately 8.1 million people in
the United States are visually impaired, including 2.0 million who are blind, andaccording to the American Foundation for the Blind’s 2015 report, approximately
400,000 visually impaired persons live in the State of New York.

-1-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 2 of 26

4.

Plaintiff brings this civil rights action against APPLE (“Defendant”) for its failure
to design, construct, maintain, and operate its website to be fully accessible to andindependently usable by Plaintiff and other blind or visually-impaired people.
Defendant’s denial of full and equal access to its website, and therefore denial ofits goods and services offered thereby and in conjunction with its physical locations,is a violation of Plaintiff’s rights under the Americans with Disabilities Act(“ADA”).

5.

Because Defendant’s website, www.apple.com (the “Website” or “Defendant’s
website”), is not equally accessible to blind and visually-impaired consumers, itviolates the ADA. Plaintiff seeks a permanent injunction to cause a change in
Defendant’s corporate policies, practices, and procedures so that Defendant’s
website will become and remain accessible to blind and visually-impaired
consumers.
JURISDICTION AND VENUE

6.

This Court has subject-matter jurisdiction over this action under 28 U.S.C. § 1331
and 42 U.S.C. § 12181, as Plaintiff’s claims arise under Title III of the ADA, 42
U.S.C. § 1281, et seq., and 28 U.S.C. § 1332.

7.

This Court has supplemental jurisdiction under 28 U.S.C. § 1367 over Plaintiff’s
New York State Human Rights Law, N.Y. Exec. Law Article 15, (“NYSHRL”) and
New York City Human Rights Law, N.Y.C. Admin. Code § 8-101 et seq.,(“NYCHRL”) claims.

8.

Venue is proper in this district under 28 U.S.C. §1391(b)(1) and (2) because
Defendant conducts and continues to conduct a substantial and significant amount-2-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 3 of 26

of business in this District, and a substantial portion of the conduct complained ofherein occurred in this District.
9.

Defendant is subject to personal jurisdiction in this District. Defendant has been
and is committing the acts or omissions alleged herein in the Southern District of
New York that caused injury, and violated rights the ADA prescribes to Plaintiff
and to other blind and other visually impaired-consumers. A substantial part of theacts and omissions giving rise to Plaintiff’s claims occurred in the in this District:on several separate occasions, Plaintiff has been denied the full use and enjoymentof the facilities, goods and services of Defendant’s physical locations and/or
Website in New York County. These access barriers that Plaintiff encountered havecaused a denial of Plaintiff’s full and equal access multiple times in the past, andnow deter Plaintiff on a regular basis from visiting Defendant’s brick-and mortar
physical locations.

10.

This Court is empowered to issue a declaratory judgment under 28 U.S.C. §§ 2201
and 2202.
THE PARTIES

11.

Plaintiff HIMELDA MENDEZ, at all relevant times, is a resident of New York,New York.

12.

Plaintiff is a blind, visually-impaired handicapped person and a member of memberof a protected class of individuals under the ADA, under 42 U.S.C. § 12102(1)-(2),and the regulations implementing the ADA set forth at 28 CFR §§ 36.101 et seq.,
the NYSHRL and NYCHRL.

13.

Defendant is and was at all relevant times a California Corporation doing businessin New York.

-3-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 4 of 26

14.

Defendant’s stores are public accommodations within the definition of Title III of
the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, oradvantage of Defendant’s stores.
NATURE OF ACTION

15.

The Internet has become a significant source of information, a portal, and a tool for
conducting business, doing everyday activities such as shopping, learning, banking,researching, as well as many other activities for sighted, blind and visuallyimpaired persons alike.

16.

In today’s tech-savvy world, blind and visually-impaired people have the ability toaccess websites using keyboards in conjunction with screen access software that
vocalizes the visual information found on a computer screen or displays the content
on a refreshable Braille display. This technology is known as screen-reading
software. Screen-reading software is currently the only method a blind or visuallyimpaired person may independently access the internet. Unless websites aredesigned to be read by screen-reading software, blind and visually-impaired
persons are unable to fully access websites, and the information, products, goods
and contained thereon.

17.

Blind and visually-impaired users of Windows operating system-enabled
computers and devices have several screen reading software programs available tothem. Some of these programs are available for purchase and other programs areavailable without the user having to purchase the program separately. Job AccessWith Speech, otherwise known as “JAWS” is currently the most popular, separately
purchased and downloaded screen-reading software program available for a
Windows computer.

-4-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 5 of 26

18.

For screen-reading software to function, the information on a website must be
capable of being rendered into text. If the website content is not capable of being
rendered into text, the blind or visually-impaired user is unable to access the samecontent available to sighted users.

19.

The international website standards organization, the World Wide Web
Consortium, known throughout the world as W3C, has published version 2.0 of the
Web Content Accessibility Guidelines (“WCAG 2.0”). WCAG 2.0 are wellestablished guidelines for making websites accessible to blind and visuallyimpaired people. These guidelines are universally followed by most large business
entities and government agencies to ensure their websites are accessible.

20.

Non-compliant websites pose common access barriers to blind and visuallyimpaired persons. Common barriers encountered by blind and visually impaired
persons include, but are not limited to, the following:a.

A text equivalent for every non-text element is not provided;b.

Title frames with text are not provided for identification andnavigation;c.

Equivalent text is not provided when using scripts;

d.

Forms with the same information and functionality as for sighted

persons are not provided;e.

Information about the meaning and structure of content is notconveyed by more than the visual presentation of content;f.

Text cannot be resized without assistive technology up to 200%

without losing content or functionality;-5-Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 6 of 26

g.

If the content enforces a time limit, the user is not able to extend,

adjust or disable it;h.

Web pages do not have titles that describe the topic or purpose;i.

The purpose of each link cannot be determined from the link text

alone or from the link text and its programmatically determined linkcontext;j.

One or more keyboard operable user interface lacks a mode ofoperation where the keyboard focus indicator is discernible;k.

The default human language of each web page cannot be

programmatically determined;l.

When a component receives focus, it may initiate a change incontext;m.

Changing the setting of a user interface component may

automatically cause a change of context where the user has not been advised
before using the component;n.

Labels or instructions are not provided when content requires user

input, which include captcha prompts that require the user to verify that heor she is not a robot;o.

In content which is implemented by using markup languages,

elements do not have complete start and end tags, elements are not nested
according to their specifications, elements may contain duplicate attributes,
and/or any IDs are not unique;p.

Inaccessible Portable Document Format (PDFs); and,-6-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 7 of 26q.

The name and role of all User Interface elements cannot be

programmatically determined; items that can be set by the user cannot be
programmatically set; and/or notification of changes to these items is notavailable to user agents, including assistive technology.
STATEMENT OF FACTS
Defendant’s Barriers on Its Website
21.

Defendant is an electronics manufacturer and retailer that operates APPLE storesas well as the APPLE website, offering features which should allow all consumers
to access the goods and services which Defendant offers in connection with their
physical locations.

22.

Defendant operates APPLE stores across the United States. At least one of thesestores is located in New York City, including its flagship store located at 767 5th
Avenue, New York, NY 10153.

23.

These stores constitute places of public accommodation. Defendant’s storesprovide to the public important goods and services. Defendant’s Website provides
consumers with access to an array of goods and services including store locations
and hours, the ability to browse and purchase electronics, such as the iPhone, iPadand Macbook Pro laptop, the ability to make service appointments online, andrelated goods and services.

24.

Defendant offers the commercial website, www.apple.com, to the public. The
website offers features which should allow all consumers to access the goods andservices which Defendant offers in connection with their physical locations. The
goods and services offered by Defendant include but are not limited to thefollowing: store locations and hours, the ability to browse and purchase electronics,-7-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 8 of 26

such as the iPhone, iPad and Macbook Pro laptop, the ability to make service
appointments online, and related goods and services.
25.

It is, upon information and belief, Defendant’s policy and practice to deny Plaintiff,
along with other blind or visually-impaired users, access to Defendant’s website,
and to therefore specifically deny the goods and services that are offered andintegrated with Defendant’s stores. Due to Defendant’s failure and refusal toremove access barriers to its website, Plaintiff and visually-impaired persons havebeen and are still being denied equal access to Defendant’s stores and the numerous
goods and services and benefits offered to the public through the Website.

26.

Plaintiff is a visually-impaired and legally blind person, who cannot use a computer
without the assistance of screen-reading software. Plaintiff is, however, a proficient
JAWS screen-reader user and uses it to access the Internet. Plaintiff has visited theWebsite on separate occasions using the JAWS screen-reader.

27.

During Plaintiff’s visits to the Website, the last occurring in August 2018, Plaintiff
encountered multiple access barriers that denied Plaintiff full and equal access tothe facilities, goods and services offered to the public and made available to the
public; and that denied Plaintiff the full enjoyment of the facilities, goods andservices of the Website, as well as to the facilities, goods and services of
Defendant’s physical locations in New York by being unable to learn more
information about store locations and hours, the ability to browse and purchaseelectronics, such as the iPhone, iPad and Macbook Pro laptop, the ability to makeservice appointments online, and related goods and services.

-8-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 9 of 26

28.

While attempting to navigate the Website, Plaintiff encountered multiple
accessibility barriers for blind or visually-impaired people that include, but are notlimited to, the following:a.

Lack of Alternative Text (“alt-text”), or a text equivalent. Alt-text is

an invisible code embedded beneath a graphical image on a website. Web
accessibility requires that alt-text be coded with each picture so that screenreading software can speak the alt-text where a sighted user sees pictures,
which includes captcha prompts. Alt-text does not change the visualpresentation, but instead a text box shows when the mouse moves over the
picture. The lack of alt-text on these graphics prevents screen readers fromaccurately vocalizing a description of the graphics. As a result, visuallyimpaired APPLE customers are unable to determine what is on the website,browse, look for store locations and hours, the ability to browse andpurchase electronics, such as the iPhone, iPad and Macbook Pro laptop, theability to make service appointments online, and related goods and services.
b.

Empty Links That Contain No Text causing the function or purposeof the link to not be presented to the user. This can introduce confusion for
keyboard and screen-reader users;c.

Redundant Links where adjacent links go to the same URL address

which results in additional navigation and repetition for keyboard andscreen-reader users; andd.

Linked Images Missing Alt-text, which causes problems if an image-9-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 10 of 26

within a link contains no text and that image does not provide alt-text. A
screen reader then has no content to present the user as to the function of
the link, including information contained in PDFs.
Defendant Must Remove Barriers To Its Website
29.

Due to the inaccessibility of Defendant’s Website, blind and visually-impaired
customers such as Plaintiff, who need screen-readers, cannot fully and equally use
or enjoy the facilities, products, and services Defendant offers to the public on its
Website. The access barriers Plaintiff encountered have caused a denial of
Plaintiff’s full and equal access in the past, and now deter Plaintiff on a regularbasis from accessing the Website.

30.

These access barriers on Defendant’s Website have deterred Plaintiff from visiting
Defendant’s physical locations and enjoying them equal to sighted individuals
because: Plaintiff was unable to find the location and hours of operation of
Defendant’s physical stores on its Website and other important information,
preventing Plaintiff from visiting the locations to take advantage of the goods andservices that it provides to the public.

31.

If the Website was equally accessible to all, Plaintiff could independently navigate
the Website and complete a desired transaction as sighted individuals do.

32.

Through her attempts to use the Website, Plaintiff has actual knowledge of theaccess barriers that make these services inaccessible and independently unusableby blind and visually-impaired people.

33.

Because simple compliance with the WCAG 2.0 Guidelines would provide Plaintiff
and other visually-impaired consumers with equal access to the Website, Plaintiff-10-Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 11 of 26

alleges that Defendant has engaged in acts of intentional discrimination, including
but not limited to the following policies or practices:a.

Constructing and maintaining a website that is inaccessible tovisually-impaired individuals, including Plaintiff;b.

Failure to construct and maintain a website that is sufficiently intuitive

so as to be equally accessible to visually-impaired individuals, including
Plaintiff; and,c.

Failing to take actions to correct these access barriers in the face of

substantial harm and discrimination to blind and visually-impaired
consumers, such as Plaintiff, as a member of a protected class.
34.

Defendant therefore uses standards, criteria or methods of administration that have theeffect of discriminating or perpetuating the discrimination of others, as alleged herein.

35.

The ADA expressly contemplates the injunctive relief that Plaintiff seeks in thisaction. In relevant part, the ADA requires:
In the case of violations of . . . this title, injunctive relief shall include an order toalter facilities to make such facilities readily accessible to and usable by individuals
with disabilities . . . Where appropriate, injunctive relief shall also include requiring
the . . . modification of a policy . . .

42 U.S.C. § 12188(a)(2).
36.

Because Defendant’s Website have never been equally accessible, and because
Defendant lacks a corporate policy that is reasonably calculated to cause its Website
to become and remain accessible, Plaintiff invokes 42 U.S.C. § 12188(a)(2) andseeks a permanent injunction requiring Defendant to retain a qualified consultant
acceptable to Plaintiff (“Agreed Upon Consultant”) to assist Defendant to comply
with WCAG 2.0 guidelines for Defendant’s Website. Plaintiff seeks that this-11-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 12 of 26

permanent injunction requires Defendant to cooperate with the Agreed Upon
Consultant to:a.

Train Defendant’s employees and agents who develop the Website

on accessibility compliance under the WCAG 2.0 guidelines;b.

Regularly check the accessibility of the Website under the WCAG

2.0 guidelines;c.

Regularly test user accessibility by blind or vision-impaired persons

to ensure that Defendant’s Website complies under the WCAG 2.0
guidelines; and,d.

Develop an accessibility policy that is clearly disclosed on Defendant’s

Websites, with contact information for users to report accessibility-related
problems.
37.

If the Website was accessible, Plaintiff and similarly situated blind and visuallyimpaired people could independently view service items, locate Defendant’s
physical locations and hours of operation, shop for and otherwise research related
goods and services available via the Website.

38.

Although Defendant may currently have centralized policies regarding maintaining
and operating its Website, Defendant lacks a plan and policy reasonably calculated
to make them fully and equally accessible to, and independently usable by, blindand other visually-impaired consumers.

39.

Defendant has, upon information and belief, invested substantial sums indeveloping and maintaining their Website and has generated significant revenue-12-Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 13 of 26

from the Website. These amounts are far greater than the associated cost of making
their Website equally accessible to visually impaired customers.
40.

Without injunctive relief, Plaintiff and other visually-impaired consumers willcontinue to be unable to independently use the Website, violating their rights.
CLASS ACTION ALLEGATIONS

41.

Plaintiff, on behalf of herself and all others similarly situated, seeks to certify anationwide class under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
individuals in the United States who have attempted to access Defendant’s Website
and as a result have been denied access to the equal enjoyment of goods and services
offered in Defendant’s physical locations, during the relevant statutory period.

42.

Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New
York State subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
individuals in the State of New York who have attempted to access Defendant’s
Website and as a result have been denied access to the equal enjoyment of goods andservices offered in Defendant’s physical locations, during the relevant statutory period.

43.

Plaintiff, on behalf of herself and all others similarly situated, seeks certify a New
York City subclass under Fed. R. Civ. P. 23(a) and 23(b)(2): all legally blind
individuals in the City of New York who have attempted to access Defendant’s
Website and as a result have been denied access to the equal enjoyment of goods andservices offered in Defendant’s physical locations, during the relevant statutory period.

44.

Common questions of law and fact exist amongst Class, including:a.

Whether Defendant’s Website is a “public accommodation” underthe ADA;b.

Whether Defendant’s Website is a “place or provider of public-13-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 14 of 26

accommodation” under the NYSHRL or NYCHRL;
Whether Defendant’s Website denies the full and equal enjoyment

c.
of

its

products,

services,

facilities,

privileges,

advantages,oraccommodations to people with visual disabilities, violating the ADA; andWhether Defendant’s Website denies the full and equal enjoyment

d.
of

its

products,

services,

facilities,

privileges,

advantages,oraccommodations to people with visual disabilities, violating the NYSHRLor NYCHRL.
45.

Plaintiff’s claims are typical of the Class. The Class, similarly to the Plaintiff, areseverely visually impaired or otherwise blind, and claim that Defendant has
violated the ADA, NYSYRHL or NYCHRL by failing to update or remove accessbarriers on its Website so either can be independently accessible to the Class.

46.

Plaintiff will fairly and adequately represent and protect the interests of the Class
Members because Plaintiff has retained and is represented by counsel competentand experienced in complex class action litigation, and because Plaintiff has nointerests antagonistic to the Class Members. Class certification of the claims isappropriate under Fed. R. Civ. P. 23(b)(2) because Defendant has acted or refusedto act on grounds generally applicable to the Class, making appropriate bothdeclaratory and injunctive relief with respect to Plaintiff and the Class as a whole.

47.

Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3) because
fact and legal questions common to Class Members predominate over questions
affecting only individual Class Members, and because a class action is superior toother available methods for the fair and efficient adjudication of this litigation.

-14-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 15 of 26

48.

Judicial economy will be served by maintaining this lawsuit as a class action in that
it is likely to avoid the burden that would be otherwise placed upon the judicial
system by the filing of numerous similar suits by people with visual disabilities
throughout the United States.
FIRST CAUSE OF ACTIONVIOLATIONS OF THE ADA, 42 U.S.C. § 1281 et seq.

49.

Plaintiff, on behalf of herself and the Class Members, repeats and realleges every
allegation of the preceding paragraphs as if fully set forth herein.

50.

Section 302(a) of Title III of the ADA, 42 U.S.C. § 12101 et seq., provides:
No individual shall be discriminated against on the basis of disability in the full andequal enjoyment of the goods, services, facilities, privileges, advantages, or
accommodations of any place of public accommodation by any person who owns,
leases (or leases to), or operates a place of public accommodation.

42 U.S.C. § 12182(a).
51.

Defendant’s stores are public accommodations within the definition of Title III of
the ADA, 42 U.S.C. § 12181(7). Defendant’s Website is a service, privilege, oradvantage of Defendant’s stores. The Website is a service that is integrated withthese locations.

52.

Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination todeny individuals with disabilities the opportunity to participate in or benefit fromthe products, services, facilities, privileges, advantages, or accommodations of anentity. 42 U.S.C. § 12182(b)(1)(A)(i).

53.

Under Section 302(b)(1) of Title III of the ADA, it is unlawful discrimination todeny individuals with disabilities an opportunity to participate in or benefit fromthe products, services, facilities, privileges, advantages, or accommodation, which-15-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 16 of 26

is equal to the opportunities afforded to other individuals. 42 U.S.C. §12182(b)(1)(A)(ii).
54.

Under Section 302(b)(2) of Title III of the ADA, unlawful discrimination also
includes, among other things:[A] failure to make reasonable modifications in policies, practices, or procedures,
when such modifications are necessary to afford such goods, services, facilities,
privileges, advantages, or accommodations to individuals with disabilities, unlessthe entity can demonstrate that making such modifications would fundamentally
alter the nature of such goods, services, facilities, privileges, advantages or
accommodations; and a failure to take such steps as may be necessary to ensure thatno individual with a disability is excluded, denied services, segregated or otherwise
treated differently than other individuals because of the absence of auxiliary aidsand services, unless the entity can demonstrate that taking such steps would
fundamentally alter the nature of the good, service, facility, privilege, advantage,or accommodation being offered or would result in an undue burden.

42 U.S.C. § 12182(b)(2)(A)(ii)-(iii).
55.

The acts alleged herein constitute violations of Title III of the ADA, and theregulations promulgated thereunder. Plaintiff, who is a member of a protected classof persons under the ADA, has a physical disability that substantially limits the
major life activity of sight within the meaning of 42 U.S.C. §§ 12102(1)(A)-(2)(A).
Furthermore, Plaintiff has been denied full and equal access to the Website, has notbeen provided services that are provided to other patrons who are not disabled, andhas been provided services that are inferior to the services provided to non-disabled
persons. Defendant has failed to take any prompt and equitable steps to remedy its
discriminatory conduct. These violations are ongoing.

56.

Under 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth andincorporated therein, Plaintiff, requests relief as set forth below.

-16-Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 17 of 26

SECOND CAUSE OF ACTIONVIOLATIONS OF THE NYSHRL
57.

Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats
and realleges every allegation of the preceding paragraphs as if fully set forth herein.

58.

N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory practicefor any person, being the owner, lessee, proprietor, manager, superintendent, agent
or employee of any place of public accommodation . . . because of the . . . disabilityof any person, directly or indirectly, to refuse, withhold from or deny to such person
any of the accommodations, advantages, facilities or privileges thereof.”

59.

Defendant’s physical locations are located in State of New York and throughout
the United States and constitute sales establishments and public accommodations
within the definition of N.Y. Exec. Law § 292(9). Defendant’s Website is a service,privilege or advantage of Defendant. Defendant’s Website is a service that is by
and integrated with these physical locations.

60.

Defendant is subject to New York Human Rights Law because it owns and operates
its physical locations and Website. Defendant is a person within the meaning of
N.Y. Exec. Law § 292(1).

61.

Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove
access barriers to its Website, causing its Website and the services integrated withDefendant’s physical locations to be completely inaccessible to the blind. This
inaccessibility denies blind patrons full and equal access to the facilities, services
that Defendant makes available to the non-disabled public.

62.

Under N.Y. Exec. Law § 296(2)(c)(i), unlawful discriminatory practice includes,
among other things, “a refusal to make reasonable modifications in policies,-17-Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 18 of 26

practices, or procedures, when such modifications are necessary to afford facilities,
privileges, advantages or accommodations to individuals with disabilities, unlesssuch person can demonstrate that making such modifications would fundamentally
alter the nature of such facilities, privileges, advantages or accommodations being
offered or would result in an undue burden".
63.

Under N.Y. Exec. Law § 296(2)(c)(ii), unlawful discriminatory practice also
includes, “a refusal to take such steps as may be necessary to ensure that noindividual with a disability is excluded or denied services because of the absenceof auxiliary aids and services, unless such person can demonstrate that taking such
steps would fundamentally alter the nature of the facility, privilege, advantage or
accommodation being offered or would result in an undue burden.”

64.

Readily available, well-established guidelines exist on the Internet for making
websites accessible to the blind and visually impaired. These guidelines have been
followed by other large business entities and government agencies in making theirwebsite accessible, including but not limited to: adding alt-text to graphics andensuring that all functions can be performed using a keyboard. Incorporating thebasic components to make its Website accessible would neither fundamentally alter
the nature of Defendant’s business nor result in an undue burden to Defendant.

65.

Defendant’s actions constitute willful intentional discrimination against the classon the basis of a disability in violation of the NYSHRL, N.Y. Exec. Law § 296(2)in that Defendant has:a.

constructed and maintained a website that is inaccessible to blindclass members with knowledge of the discrimination; and/or-18-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 19 of 26b.

constructed and maintained a website that is sufficiently intuitive

and/or obvious that is inaccessible to blind class members; and/orc.

failed to take actions to correct these access barriers in the face of

substantial harm and discrimination to blind class members.
66.

Defendant has failed to take any prompt and equitable steps to remedy theirdiscriminatory conduct. These violations are ongoing.

67.

Defendant discriminates, and will continue in the future to discriminate against
Plaintiff and New York State Sub-Class Members on the basis of disability in thefull and equal enjoyment of the products, services, facilities, privileges, advantages,
accommodations and/or opportunities of Defendant’s Website and its physicallocations under § 296(2) et seq. and/or its implementing regulations. Unless the
Court enjoins Defendant from continuing to engage in these unlawful practices,
Plaintiff and the Sub-Class Members will continue to suffer irreparable harm.

68.

Defendant’s actions were and are in violation of New York State Human Rights
Law and therefore Plaintiff invokes her right to injunctive relief to remedy thediscrimination.

69.

Plaintiff is also entitled to compensatory damages, as well as civil penalties andfines under N.Y. Exec. Law § 297(4)(c) et seq. for each and every offense.

70.

Plaintiff is also entitled to reasonable attorneys’ fees and costs.

71.

Under N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth andincorporated therein Plaintiff prays for judgment as set forth below.

-19-Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 20 of 26

THIRD CAUSE OF ACTIONVIOLATION OF THE NEW YORK STATE CIVIL RIGHTS LAW
72.

Plaintiff, on behalf of herself and the New York State Sub-Class Members, repeats
and realleges every allegation of the preceding paragraphs as if fully set forth herein.

73.

Plaintiff served notice thereof upon the attorney general as required by N.Y. Civil
Rights Law § 41.

74.

N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction of thisstate shall be entitled to the full and equal accommodations, advantages, facilities
and privileges of any places of public accommodations, resort or amusement,
subject only to the conditions and limitations established by law and applicable
alike to all persons. No persons, being the owner, lessee, proprietor, manager,
superintendent, agent, or employee of any such place shall directly or indirectly
refuse, withhold from, or deny to any person any of the accommodations,advantages, facilities and privileges thereof . . .”75.

N.Y. Civil Rights Law § 40-c(2) provides that “no person because of . . . disability,
as such term is defined in section two hundred ninety-two of executive law, be
subjected to any discrimination in his or her civil rights, or to any harassment, as
defined in section 240.25 of the penal law, in the exercise thereof, by any other personor by any firm, corporation or institution, or by the state or any agency or subdivision.”

76.

Defendant’s New York State physical locations are sales establishments and public
accommodations within the definition of N.Y. Civil Rights Law § 40-c(2).
Defendant’s Website is a service, privilege or advantage of Defendant and its
Website is a service that is by and integrated with these establishments.

-20-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 21 of 26

77.

Defendant is subject to New York Civil Rights Law because it owns and operates
its physical locations and Website. Defendant is a person within the meaning of
N.Y. Civil Law § 40-c(2).

78.

Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or
remove access barriers to its Website, causing its Website and the goods andservices integrated with Defendant’s physical locations to be completely
inaccessible to the blind. This inaccessibility denies blind patrons full and equal
access to the facilities, goods and services that Defendant makes available to thenon-disabled public.

79.

N.Y. Civil Rights Law § 41 states that “any corporation which shall violate any of theprovisions of sections forty, forty-a, forty-b or forty-two . . . shall for each and every
violation thereof be liable to a penalty of not less than one hundred dollars nor morethan five hundred dollars, to be recovered by the person aggrieved thereby . . .”80.

Under NY Civil Rights Law § 40-d, “any person who shall violate any of theprovisions of the foregoing section, or subdivision three of section 240.30 or section
240.31 of the penal law, or who shall aid or incite the violation of any of said
provisions shall for each and every violation thereof be liable to a penalty of notless than one hundred dollars nor more than five hundred dollars, to be recoveredby the person aggrieved thereby in any court of competent jurisdiction in the county
in which the defendant shall reside ...”

81.

Defendant has failed to take any prompt and equitable steps to remedy its
discriminatory conduct. These violations are ongoing.

-21-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 22 of 26

82.

Defendant discriminates and will continue in the future to discriminate against
Plaintiff and New York State Sub-Class Members on the basis of disability arebeing directly or indirectly refused, withheld from, or denied the accommodations,advantages, facilities and privileges thereof in § 40 et seq. and/or its implementing
regulations.

83.

Plaintiff is entitled to compensatory damages of five hundred dollars per instance,
as well as civil penalties and fines under N.Y. Civil Law § 40 et seq. for each andevery offense.
FOURTH CAUSE OF ACTIONVIOLATIONS OF THE NYCHRL

84.

Plaintiff, on behalf of herself and the New York City Sub-Class Members, repeats
and realleges every allegation of the preceding paragraphs as if fully set forth herein.

85.

N.Y.C. Administrative Code § 8-107(4)(a) provides that “It shall be an unlawful
discriminatory practice for any person, being the owner, lessee, proprietor,
manager, superintendent, agent or employee of any place or provider of public
accommodation, because of . . . disability . . . directly or indirectly, to refuse,
withhold from or deny to such person, any of the accommodations, advantages,
facilities or privileges thereof.”

86.

Defendant’s locations are sales establishments and public accommodations within
the definition of N.Y.C. Admin. Code § 8-102(9), and its Website is a service thatis integrated with its establishments.

87.

Defendant is subject to NYCHRL because it owns and operates its physicallocations in the City of New York and its Website, making it a person within themeaning of N.Y.C. Admin. Code § 8-102(1).

-22-Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 23 of 26

88.

Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to
update or remove access barriers to Website, causing its Website and the services
integrated with its physical locations to be completely inaccessible to the blind.
This inaccessibility denies blind patrons full and equal access to the facilities,
products, and services that Defendant makes available to the non-disabled public.

89.

Defendant is required to “make reasonable accommodation to the needs of persons
with disabilities . . . any person prohibited by the provisions of [§ 8-107 et seq.]
from discriminating on the basis of disability shall make reasonableaccommodation to enable a person with a disability to . . . enjoy the right or rights
in question provided that the disability is known or should have been known by thecovered entity.” N.Y.C. Admin. Code § 8-107(15)(a).

90.

Defendant’s actions constitute willful intentional discrimination against the SubClass on the basis of a disability in violation of the N.Y.C. Administrative Code §8-107(4)(a) and § 8-107(15)(a) in that Defendant has:a.

constructed and maintained a website that is inaccessible to blindclass members with knowledge of the discrimination; and/orb.

constructed and maintained a website that is sufficiently intuitive

and/or obvious that is inaccessible to blind class members; and/orc.

failed to take actions to correct these access barriers in the face of

substantial harm and discrimination to blind class members.
91.

Defendant has failed to take any prompt and equitable steps to remedy theirdiscriminatory conduct. These violations are ongoing.

-23-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 24 of 26

92.

As such, Defendant discriminates, and will continue in the future to discriminate
against Plaintiff and members of the proposed class and subclass on the basis of
disability in the full and equal enjoyment of the products, services, facilities,
privileges, advantages, accommodations and/or opportunities of its Website and its
establishments under § 8-107(4)(a) and/or its implementing regulations. Unless the
Court enjoins Defendant from continuing to engage in these unlawful practices,
Plaintiff and members of the class will continue to suffer irreparable harm.

93.

Defendant’s actions were and are in violation of the NYCHRL and therefore
Plaintiff invokes her right to injunctive relief to remedy the discrimination.

94.

Plaintiff is also entitled to compensatory damages, as well as civil penalties andfines under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense
as well as punitive damages pursuant to § 8-502.

95.

Plaintiff is also entitled to reasonable attorneys’ fees and costs.

96.

Under N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies,
procedures, and rights set forth and incorporated therein Plaintiff prays forjudgment as set forth below.
FIFTH CAUSE OF ACTIONDECLARATORY RELIEF

97.

Plaintiff, on behalf of herself and the Class and New York State and City SubClasses Members, repeats and realleges every allegation of the preceding
paragraphs as if fully set forth herein.

98.

An actual controversy has arisen and now exists between the parties in that Plaintiff
contends, and is informed and believes that Defendant denies, that its Website
contains access barriers denying blind customers the full and equal access to the-24-Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 25 of 26

products, services and facilities of its Website and by extension its physicallocations, which Defendant owns, operations and controls, fails to comply withapplicable laws including, but not limited to, Title III of the Americans with
Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq., and
N.Y.C. Admin. Code § 8-107, et seq. prohibiting discrimination against the blind.
99.

A judicial declaration is necessary and appropriate at this time in order that each of
the parties may know their respective rights and duties and act accordingly.
PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully requests this Court grant the following relief:a.

A preliminary and permanent injunction to prohibit Defendant fromviolating the Americans with Disabilities Act, 42 U.S.C. §§ 12182, et seq.,
N.Y. Exec. Law § 296, et seq., N.Y.C. Administrative Code § 8-107, et seq.,
and the laws of New York;b.

A preliminary and permanent injunction requiring Defendant to takeall the steps necessary to make its Website into full compliance with therequirements set forth in the ADA, and its implementing regulations, so that
the Website is readily accessible to and usable by blind individuals;c.

A declaration that Defendant owns, maintains and/or operates its

Website in a manner that discriminates against the blind and which fails toprovide access for persons with disabilities as required by Americans with
Disabilities Act, 42 U.S.C. §§ 12182, et seq., N.Y. Exec. Law § 296, et seq.,
N.Y.C. Administrative Code § 8-107, et seq., and the laws of New Yorkd.

An order certifying the Class and Sub-Classes under Fed. R. Civ. P.

-25-

Case 1:18-cv-07550 Document 1 Filed 08/19/18 Page 26 of 26

23(a) & (b)(2) and/or (b)(3), appointing Plaintiff as Class Representative,
and her attorneys as Class Counsel;e.

Compensatory damages in an amount to be determined by proof,

including all applicable statutory and punitive damages and fines, toPlaintiff and the proposed class and subclasses for violations of their civilrights under New York State Human Rights Law and City Law;f.

Pre- and post-judgment interest;g.

An award of costs and expenses of this action together withreasonable attorneys’ and expert fees; andh.

Such other and further relief as this Court deems just and proper.
DEMAND FOR TRIAL BY JURY

Pursuant to Fed. R. Civ. P. 38(b), Plaintiff demands a trial by jury on all questionsof fact the Complaint raises.
Dated:

Brooklyn, New York
August 19, 2018
COHEN & MIZRAHI LLP
By:____________________
Joseph H. Mizrahi, Esq.
Joseph@cml.legal
300 Cadman Plaza West, 12 Fl.
Brooklyn, N.Y. 11201
Telephone: (929) 575-4175
Facsimile: (929) 575-4195
GOTTLIEB & ASSOCIATES
Jeffrey M. Gottlieb (JG7905)
nyjg@aol.com
Dana L. Gottlieb (DG6151)
danalgottlieb@aol.com
150 East 18th Street, Suite PHR
New York, N.Y. 10003-2461
Telephone: (212) 228-9795
ATTORNEYS FOR PLAINTIFF-26-