IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

THOMAS HAMILL, et al.,

Plaintiffs,

v.

NORTH WILDWOOD CITY, et al,

Defendants.

Civil Action 

No. 10-6587 (JBS-KMW)

OPINION

APPEARANCES:

Anthony J. Brady, Jr., Esq.

1 Rose Ave.

P.O. Box 129

Maple Shade, NJ 08052

Attorney for Plaintiffs Thomas Hamill and Gregory Lasky

Eric L. Harrison, Esq.

Methfessel & Werbel, PC

3 Ethel Road

Suite 300

Edison, NJ 08818-3102

Attorney for Defendant North Wildwood City 

SIMANDLE, Chief Judge:

I. INTRODUCTION

Plaintiffs Thomas Hamill and Gregory Lasky are disabled 

individuals who use wheelchairs and who brought this action 

against Defendant North Wildwood City (“North Wildwood”) and 

John Doe Defendants for violation of Plaintiffs’ rights under 

Title II of the Americans with Disabilities Act (“ADA”), 42 

U.S.C. § 12132 and the Rehabilitation Act of 1973, 29 U.S.C. §§ 

791-794. They allege that certain sidewalks and curb cuts in 

North Wildwood City violate these laws. The Court has original 

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jurisdiction pursuant to 28 U.S.C. § 1331. This matter comes 

before the Court on Defendant North Wildwood City’s Motion for 

Summary Judgment as to Plaintiff Hamill [Docket Item 53] and its 

Motion for Summary Judgment as to Plaintiff Lasky [Docket Item 

54]. The Court held oral argument on March 11, 2013. 

Essentially, Defendant North Wildwood asserts that Plaintiffs 

lack standing because they did not suffer injuries-in-fact and 

because there is no concrete risk of future injury. Defendant’s 

motions will be denied because, construing all facts in the 

Plaintiffs’ favor, Plaintiffs have shown that they suffered 

injuries when they visited North Wildwood and are likely to 

suffer injuries in the future. 

II. FACTUAL BACKGROUND

Defendant North Wildwood City (“North Wildwood”) is a 

municipality located in Cape May County, New Jersey. (1st Am. 

Compl. ¶ 4.) Plaintiffs allege that North Wildwood’s facilities 

are not handicapped accessible and thus violate the ADA and the 

Rehabilitation Act. (1st Am. Compl. ¶ 12.) Plaintiffs demand 

nominal damages, injunctive relief, attorney fees, and costs of 

suit. (1st Am. Compl. ¶ 15.) 

Plaintiff Thomas Hamill lives in Voorhees, New Jersey. (1st 

Am. Compl. at 1.) He is quadriplegic and uses a wheelchair. (1st 

Am. Compl. ¶ 2; Docket Item 53-3, Ex. B, Hamill Oct. 5, 2011 

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Dep. 14:22.) He is a member of Advocates For Disabled Americans 

(“AFDA”). (Hamill Oct. 5, 2011 Dep. 25:23-25.) He frequently 

visits the Jersey shore, including trips to North Wildwood on 

December 14, 2010, July 16, 2011, and October 22, 2011. (1st Am. 

Compl. ¶ 6.) 

Plaintiff George Lasky lives in Broward County, Florida. 

(1st Am. Compl. at 1.) According to Google Maps, he lives 1,206 

miles from North Wildwood. [Docket Item 54-3 at 10.] He is also 

disabled and uses a wheelchair. (1st Am. Compl. ¶ 3.) He visited 

North Wildwood on October 9, 2010, December 5, 2010, April 15, 

2011, October 9, 2011, and July 16, 2011. (Lasky SOF ¶ 2.)

On their visits, Plaintiffs could not use North Wildwood’s 

services and could not access its beaches because North 

Wildwood’s facilities do not comply with ADA regulations. (1st 

Am. Compl. ¶ 7.) 

When Hamill visited North Wildwood in December of 2010, his 

purpose “was checking out the boardwalk, the beach, and the 

streets . . . looking for areas that I would be able to access 

the beach, . . . areas where I’d be able to handcycle on the 

street, and looking for access to the boardwalk.” (Hamill Oct. 

5, 2011 Dep. 81:14-25.) He noticed that “there was an area of 

sand between the ramp and the boardwalk. So I wouldn’t have been 

able to make it to the ramp.” (Hamill Oct. 5, 2011 Dep. 86:3-5.)

He made these observations from his van. (Hamill Oct. 5, 2011 

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Dep. 86:19-20.) He also noticed problematic curb cuts, such as 

“curb cuts to nowhere . . . going into grass area” and “really 

dangerous [curb cuts] because you could wind up with a couple of 

wheels off the ground.” (Hamill Oct. 5, 2011 Dep. 92:25-93:10.)

Hamill “wants to enjoy the streets, avenues, and sidewalks of 

North Wildwood for cycling but is unable to do so.” (Docket Item 

61, Hamill SOF ¶ 6.) 

Hamill also visited North Wildwood on October 22, 2011 “to 

see if I could find any motels that were open during the offseason and I had a phone call from Mr. Lasky about some issues 

that he had seen. . . .” (Hamill May 7, 2012 Dep. 6:8-11.) He 

acknowledged that “one of the reasons” for the October 2011 

visit was to address questions he had from his first deposition 

in this litigation. (Hamill May 7, 2012 Dep. 8:2-5.) 

When Lasky visited North Wildwood in December of 2010, he 

was “going up and down the coast by Cape May and looking for 

places to rent.” (Lasky Oct. 12, 2012 Dep. 6:11-12.) Like 

Hamill, Lasky also experienced difficulty with the curb cuts,

and he had to use his wheelchair in the street. (Lasky Oct. 12, 

2012 Dep. 16:1-6.) The curb cuts did not have a flat landing and 

“[t]he angle going up is beyond a safe traversing – a safe angle 

that I don’t have a chance of flipping backwards.” (Lasky Oct. 

12, 2012 Dep. 17:6-14.) In addition, the only open bathroom was 

a port-a-potty with a three-inch gap. (Lasky Oct. 12, 2012 Dep. 

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61:1-3.) He also made return visits to “follow up more in depth 

on . . . the new curb cuts, the parking, . . . whether it was 

acceptable, whether it met code, and the bathrooms. . . .” 

(Lasky Oct. 12, 2012 Dep. 46:13-17.)

Plaintiffs both intend to return to North Wildwood as 

patrons and as testers. (1st Am. Compl. ¶ 13.) For example, when 

they filed the initial Complaint [Docket Item 1], they alleged 

an intention to return for the AFDA meeting in North Wildwood in 

the summer of 2011. (Compl. ¶ 15.) Plaintiffs attended the AFDA 

meeting in North Wildwood on July 16, 2011 and, when the First 

Amended Complaint was filed on February 15, 2012, they intended 

to attend the next AFDA meeting in North Wildwood in the summer 

of 2012. (1st Am. Compl. ¶ 13.)1

When Hamill was asked on May 7, 2012 whether he planned to 

make more visits to North Wildwood, Hamill responded, “I don’t 

have any crystalized plans, more of a vague plan.” (Docket Item 

53-3, Ex. L, Hamill May 7, 2012 Dep. 4:22-25.) Hamill later 

clarified that he “intends to return to North Wildwood as a 

tester” because he believes that Defendant’s attorney’s “clients 

 1 The 2012 AFDA meeting was postponed to October 27, 2012 

partially because Lasky had a new child and did not want to 

travel to New Jersey in the heat of the summer with an infant. 

(Lasky SOF ¶ 5.) At oral argument, counsel advised that Lasky 

came to New Jersey for the October 27th meeting but, due to 

Hurricane Sandy that weekend, the meeting could not be held in 

North Wildwood and was instead held in another New Jersey 

location.

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would not comply with the ADA unless ordered by a Judge.” 

(Hamill SOF ¶¶ 18-19.)2

When Lasky was asked about his plans to return to North 

Wildwood, he said he had specific plans to return “but I don’t 

know exactly what date.” (Docket Item 54-3, Ex. F, Lasky May 7, 

2012 Dep. 18:2-4.) Lasky’s purpose for future visits was “[t]o 

continue to see about access, to enjoy what little parts of the 

sidewalk that we can get to and we [the AFDA] hold our yearly 

meeting and we’re going to continue to hold it at Flip Flop[z].”3

(Lasky May 7, 2012 Dep. 18:5-10.) He plans to return to North 

Wildwood with his family for “enjoyment.” (Lasky Oct. 12, 2012 

 2 Plaintiffs’ counsel Anthony J. Brady, Jr. and North Wildwood’s 

counsel Eric L. Harrison have previously litigated cases against 

each other and referenced this history in their briefing. For 

example, Harrison noted other ADA cases in which Brady served as 

counsel, Lasky and Hamill were plaintiffs, or North Wildwood was 

the defendant. Brady’s wife Albena Shutenko is a fact witness in 

this litigation. Harrison made arguments based on “[p]rior 

litigation experience with complaints filed by plaintiff’s 

counsel. . . .” (E.g., Def. Br. Supp. Mot. Summ. J. Against 

Hamill at 13.) Harrison also argued, “Mr. Lasky is the Julius 

Caesar of the AFDA [Advocates For Disabled Americans] – he 

comes, he sees, and he sues (veni, vidi, egi) – and the City is 

yet another victim of Mr. Brady’s ‘drive-by’ litigation 

business.” (Def. Br. Supp. Mot. Summ. J. Against Lasky at 17.) 

In the exhibits to Plaintiffs’ Opposition Briefs, Brady attached 

the transcript of a March 16, 2012 settlement conference before 

Magistrate Judge Joel Schneider in Lasky v. Moorestown Township, 

Civ. No. 09-5624 (RBK-JS). [Docket Item 60-9.] Judge Schneider 

ordered defendant Moorestown’s representatives to attend the 

hearing because he was “concerned about the credibility of the 

representation [he] was getting from Moorestown and its 

lawyers.” [Docket Item 60-9 at 2.] In assessing the pending 

motions for summary judgment, the Court limited its analysis to 

only the briefing and evidence offered in this particular case. 

3 Flip Flopz is a restaurant in North Wildwood.

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Dep. 81:11-12.) He notes that North Wildwood “is a major tourist 

attraction.” (Lasky SOF ¶ 14.) He also has “specific intent to 

return to North Wildwood to act as a tester” because the 

accessibility issues in North Wildwood are so problematic and 

“inconceivable.” (Lasky SOF ¶ 16.) 

Although he lives in Florida, Lasky visits New Jersey up to 

four times per year for his roles as President of the AFDA and 

guardian ad litem for a disabled man, who was involved in 

litigation in Camden, New Jersey. (Lasky SOF ¶¶ 7, 9.) In 

addition, he enjoys attending Philadelphia sporting events. 

(Lasky SOF ¶ 10.) His wife’s best friend lives near Hightstown, 

New Jersey, and he enjoys the change of seasons in New Jersey. 

(Lasky SOF ¶ 12.)

III. PROCEDURAL HISTORY

On October 24, 2011, the Court dismissed with prejudice 

[Docket Item 21] another Plaintiff, an organization called 

Advocates For Disabled Americans (“AFDA”), pursuant to a 

stipulation between the parties [Docket Item 19]. 

On February 14, 2012, this Court issued a memorandum 

opinion [Docket Item 38] addressing the motion of Plaintiff Karl 

Loose to withdraw his claims without prejudice [Docket Item 22] 

and the motion of Plaintiffs Hamill and Lasky to amend the 

complaint [Docket Item 23]. The Court permitted Loose to 

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withdraw his claims without prejudice and permitted Hamill and 

Lasky to withdraw without prejudice their claims under the New 

Jersey Law Against Discrimination, N.J. Stat. Ann. § 10:5-1. 

Plaintiffs Hamill and Lasky then filed a First Amended Complaint 

(“Amended Complaint”). [Docket Item 40.]

Defendant North Wildwood City filed a Motion for Summary 

Judgment as to Plaintiff Hamill [Docket Item 53] and a Motion 

for Summary Judgment as to Plaintiff Lasky [Docket Item 54]. 

Both motions argue that Plaintiffs lack constitutional standing 

to pursue their claims under the ADA. 

North Wildwood argues that the Plaintiffs did not suffer 

any injuries-in-fact because they did not attempt to navigate 

the areas that they had determined, through visual inspections, 

to be inaccessible. In addition, North Wildwood argues that 

Plaintiffs lack concrete, specific plans to visit North Wildwood 

and avail themselves of North Wildwood’s services and facilities

in the future. If the Court declines to grant summary judgment, 

Defendant asks the Court to conduct a preliminary evidentiary 

hearing on standing. North Wildwood asserts that Plaintiffs’ 

affidavits, which they submitted in support of the opposition to 

summary judgment, are sham affidavits. North Wildwood further 

argues that the affidavits cannot establish intent to return to 

North Wildwood because standing is based on conditions at the 

time of filing a complaint and, therefore, Plaintiffs must have 

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had the intent to return at the time they filed the initial 

Complaint.

IV. STANDARD OF REVIEW

Summary judgment is appropriate “if the movant shows that 

there is no genuine dispute as to any material fact and the 

movant is entitled to judgment as a matter of law.” Fed. R. Civ. 

P. 56(a). A dispute is “genuine” if “the evidence is such that a 

reasonable jury could return a verdict for the non-moving 

party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). A fact is “material” only if it might affect the outcome 

of the suit under the applicable rule of law. Id. Disputes over 

irrelevant or unnecessary facts will not preclude a grant of 

summary judgment. Id. The district court must “view the facts 

and draw reasonable inferences in the light most favorable to 

the party opposing the summary judgment motion.” Scott v. 

Harris, 550 U.S. 372, 378 (2007).

V. ANALYSIS

Defendant contends that summary judgment is warranted, 

because Plaintiffs lack standing to sue for injunctive relief 

under the ADA. “Standing is a threshold jurisdictional 

requirement. . . .” Pub. Interest Research Group, Inc. v. 

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Magnesium Elektron, Inc., 123 F.3d 111, 117 (3d Cir. 1997).4 The 

party invoking federal jurisdiction bears the burden of 

establishing standing “in the same way as any other matter on 

which the plaintiff bears the burden of proof, i.e., with the 

matter and degree of evidence required at successive stages of 

the litigation.” Lujan v. Defenders of Wildlife, 504 U.S. 555, 

561 (1992). At the summary judgment stage, Plaintiffs cannot 

rest on mere allegations to establish standing, “but must ‘set 

forth’ by affidavit or other evidence, ‘specific facts,’ which 

for purposes of the summary judgment motion will be taken to be 

true.” Lujan at 561 (citing Fed. R. Civ. P. 56(e)). 

To establish constitutional standing, a plaintiff must

prove the following elements:

(1) [He] has suffered an “injury in fact” that is (a) 

concrete and particularized and (b) actual or 

imminent, not conjectural or hypothetical; (2) the 

injury is fairly traceable to the challenged action of 

the defendant; and (3) it is likely, as opposed to 

merely speculative, that the injury will be redressed 

by a favorable decision.

Friends of the Earth, Inc. v. Laidlaw Envtl. Servs., Inc., 528 

U.S. 167, 180–81 (2000); see also Doe v. Nat'l Bd. of Med. 

Exam'rs, 210 Fed. Appx. 157, 159 (3d Cir. 2006) (“Doe II”).

 4 Standing doctrine embraces both constitutional and judicially 

self-imposed prudential limitations on who may invoke the power 

of the federal courts. Allen v. Wright, 468 U.S. 737, 751 

(1984). Defendant has not challenged Plaintiffs’ standing based 

on prudential considerations and, therefore, the Court has not 

analyzed this factor.

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There is no dispute that North Wildwood’s actions in terms of 

failing to make its facilities accessible caused Plaintiffs’ 

alleged injuries. And there is no dispute that, if Plaintiffs 

obtained an injunction ordering North Wildwood to improve 

accessibility, then Plaintiffs’ injuries would be redressed. The 

Court’s analysis will therefore focus on the first element, 

i.e., injury-in-fact.

A. Previous Injury

North Wildwood argues that Plaintiffs did not suffer any 

injuries when they visited North Wildwood. For example, 

Defendant emphasizes Lasky’s “inexcusable failure to traverse a 

single curb cut. . . .” (Def. Br. Supp. Summ. J. Against Lasky 

at 17.) Defendant also argues that Hamill “never got out of his 

van . . . to physically traverse the areas he determined, solely 

by visual inspection, to be inaccessible.” (Def. Br. Supp. Summ. 

J. Against Hamill at 9.)

The ADA does not “require a person with a disability to 

engage in a futile gesture . . .,” if the disabled person has 

“actual notice” of a facility’s non-compliance with the ADA. 42 

U.S.C. § 12188(a)(1). Although the Third Circuit has not 

addressed the issue, other Circuits have held that while 

plaintiffs “need not engage in a ‘futile gesture’ of visiting a 

building containing known barriers that the owner has no 

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intention of remedying, see 42 U.S.C. § 12188(a)(1), they must 

at least prove knowledge of the barriers and that they would 

visit the building in the imminent future but for those 

barriers.” Access 4 All, Inc. v. Boardwalk Regency Corp., Civ. 

No. 08-3817 (RMB), 2010 WL 4860565, *4 (D.N.J. Nov. 23, 2010)

(citing Steger v. Franco, Inc., 228 F.3d 889, 892 (8th Cir. 

2000)).

Plaintiffs identified many problems with North Wildwood’s 

facilities. For example, they described “really dangerous [curb 

cuts] because you could wind up with a couple of wheels off the 

ground,” (Hamill Oct. 5, 2011 Dep. 92:25-93:10), and “[t]he 

angle going up [curb cuts] is beyond a safe traversing – a safe 

angle that I don’t have a chance of flipping backwards,” (Lasky 

Oct. 12, 2012 Dep. 17:6-14)5

. The Court must view the facts in 

 5 To contradict Lasky’s testimony that North Wildwood’s curb cuts 

were inaccessible, North Wildwood cites the testimony of Albena 

Shutenko, who visited North Wildwood with Lasky. (Shutenko is 

married to Plaintiffs’ attorney Anthony Brady.) Shutenko 

testified that Lasky “could use [the curb cuts]. He would just 

have to be right in front of them.” (Docket Item 54-3, Ex. Q, 

Shutenko Oct. 7, 2011 Dep. 71:4-7.) North Wildwood argues that 

Shutenko’s testimony “[p]ut[] further strain on Mr. Lasky’s 

contention that the City’s curb cuts were insurmountable.” (Def. 

Br. Supp. Summ. J. Against Lasky at 13.) But Shutenko also 

testified that “the curb cuts were not done properly to me. 

Technical issue,” and that “[Lasky] was criticizing the curb 

cuts. And I could see that he had a point.” (Shutenko Oct. 7, 

2011 Dep. 71:2-3, 23-24.) At this procedural posture, the Court 

must construe facts in favor of the Plaintiffs; there is 

adequate testimony in the record from Lasky and Shutenko to 

establish that, at minimum, there is a disputed issue of 

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the light most favorable to the Plaintiffs. Plaintiffs have 

provided sufficient evidence to show, at this procedural 

posture, that North Wildwood’s facilities are inaccessible and 

that they had actual notice, through their visual inspections, 

of inaccessibility. Plaintiffs need not engage in futile, and 

possibly unsafe, gestures to establish that they suffered an 

injury-in-fact when they visited North Wildwood.

B. Future Injury

Plaintiffs seek injunctive relief and, because injunctions 

regulate future conduct, a party seeking prospective injunctive 

relief must demonstrate a real and immediate, i.e., not

speculative, threat of future harm. City of Los Angeles v. 

Lyons, 461 U.S. 95, 111 (1983); see also Doe II at 159–60. 

“[I]ntentions to return to the source of the illegal conduct 

‘some day’—without any description of concrete plans, or indeed 

even any specification of when the some day will be—do not 

support a finding of the requisite actual or imminent injury.” 

Dempsey v. Pistol Pete's Beef N Beer, LLC, Civ. No. 08-5454

(RBK-AMD), 2009 WL 3584597 at *4 (D.N.J. Oct. 26, 2009) (citing 

Lujan at 564, where affiant lacked standing to seek injunction 

protecting endangered animals, because she merely professed 

 

material fact regarding the accessibility of North Wildwood’s 

curb cuts and, thus, whether Lasky was injured by the curb cuts.

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intent to “some day” return to observe them, but had no 

“concrete plans” to do so). 

Thus, an ADA plaintiff “who seeks an injunction mandating 

removal of architectural barriers cannot ‘manufacture standing’

by simply claiming that [he] intends to return to the 

defendant's establishment.” Access 4 All v. Boardwalk Regency 

Corp., at *4 (citing Kramer v. Midamco, 656 F.Supp.2d 740, 747–

48 (N.D. Ohio 2009)). Courts assess a plaintiff's likelihood of 

returning in the imminent future (but for the barriers) by 

considering the following four factors: “(1) the plaintiff's 

proximity to the defendant's place of public accommodation; (2) 

the plaintiff's past patronage; (3) the definiteness of the 

plaintiff's plan to return; and (4) the plaintiff's frequency of 

nearby travel.” Access 4 All v. Boardwalk Regency Corp., at *4; 

see also Cottrell v. Zagami, LLC, Civ. No. 08–3340 (JEI-AMD), 

2009 WL 1416044, at *3 n.3 (D.N.J. May 20, 2009) (collecting 

cases in which constitutional standing analysis regarding intent 

to return was based on four factors listed above)). An analysis 

of these factors “sheds light on the question of whether the 

plaintiff is likely to return and thus whether the alleged 

discrimination has caused a sufficiently real and immediate 

injury to support standing for injunctive relief.” Access 4 All

v. Boardwalk Regency Corp., at *4.

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i. Future Injury Analysis for Plaintiff Lasky

An analysis of the four factors shows that Lasky is likely 

to return to North Wildwood and, therefore, has standing to seek 

injunctive relief based on a non-speculative threat of future 

harm. 

The first factor is the Plaintiff’s proximity to the 

Defendant’s establishment. Lasky lives 1,206 miles from North 

Wildwood. [Docket Item 54-3 at 10.] “Generally, when a plaintiff 

resides more than 100 miles from the defendant, courts conclude 

the likelihood of a plaintiff's return diminishes.” Brown v. 

Showboat Atl. City Propco, LLC, CIV. No. 08-5145 (NLH), 2010 WL 

5237855 (D.N.J. Dec. 16, 2010). The 100-mile distinction is not, 

however, determinative in this case: “a plaintiff's proximity to 

a defendant's establishment is not probative of intent to return 

when that establishment is a travel destination. . . .” Access 4 

All v. Boardwalk Regency Corp., at *5. 

Lasky pled that North Wildwood “is a major tourist 

attraction.” (Lasky SOF ¶ 14.) Defendant argues that “[u]nlike 

businesses that cater specifically to travelers, such as hotels, 

City facilities cater predominantly to local residents.” (Def. 

Br. Supp. Summ. J. Against Lasky at 15.) Defendant does not cite 

any case law supporting its contention that municipalities have 

less of an obligation to accommodate disabled travelers, as 

compared to local residents. Such a proposition is even more 

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dubious when advanced by a tourist resort, such as North 

Wildwood. Regardless, construing the facts in the light most 

favorable to the Plaintiff, Lasky has alleged that North 

Wildwood is a tourist destination and, thus, is not subject to 

the informal 100-mile rule. “Accordingly, the distance between 

[Lasky]'s residence and [North Wildwood] weighs neither for or 

against standing.” See Access 4 All v. Boardwalk Regency Corp.,

at *5.6

The second factor is the Plaintiff’s past patronage. Lasky

visited North Wildwood on October 9, 2010, December 5, 2010, 

April 15, 2011, October 9, 2011, and July 16, 2011. (Lasky SOF ¶ 

2.) This action was filed on December 16, 2010 and, therefore, 

at the time of filing the first Complaint, Lasky had visited 

North Wildwood twice. 

Defendant emphasizes that the Court must assess standing at 

the time the Complaint was filed and must not consider efforts 

made after the filing of the Complaint. A plaintiff “must have 

set forth a definitive intent to return before filing his 

complaint in order to establish standing.” Access 4 All, Inc. v. 

539 Absecon Blvd., L.L.C., Civ. No. 05-5624 (FLW), 2006 WL 

1804578, *4 (D.N.J. June 26, 2006). Lasky has satisfied this 

 6 The Plaintiff in Access 4 All v. Boardwalk Regency Corp. resided 

only 125 miles from the defendants, which were casinos and 

hotels, but the tourist destination analysis is still 

instructive. 

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standard. When he filed the initial Complaint, he alleged an 

intention to return for the AFDA meeting in North Wildwood in 

the summer of 2011. (Compl. ¶ 15.) He did attend that meeting 

and, when the First Amended Complaint was filed on February 15, 

2012, he intended to attend the next AFDA meeting in North 

Wildwood in 2012. (1st Am. Compl. ¶ 13.)7 While post-complaint 

trips cannot establish standing, they “may still be relevant to 

the Court's assessment of Plaintiff's credibility” regarding 

future intent to return. Access 4 All v. Boardwalk Regency 

Corp., at *8. Lasky’s visits since this litigation commenced

bolster the credibility of his statements in his Complaint that 

he intended to return to North Wildwood as a visitor and a 

tester.

North Wildwood argues that Lasky “has no history of 

attempting to utilize City facilities or services for reasons 

other than the pursuit of litigation.” (Def. Br. Supp. Summ. J. 

Against Lasky at 16.) Lasky states that his reasons for visiting 

North Wildwood included looking for vacation rentals for his 

family, attending the yearly AFDA meetings, and assessing 

accessibility problems. The Court must construe the facts in the 

light favorable to the Plaintiff, who has alleged multiple 

reasons for visiting North Wildwood. But, even if all of Lasky’s 

 7 As explained above, the meeting did not actually occur in North 

Wildwood because of Hurricane Sandy and, instead, took place at 

another location in New Jersey. 

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visits have been litigation-based, that fact would not negate 

the likelihood of future injury. “Indeed, because Plaintiff [] 

is a frequent litigant with the stated goal of ensuring ADA 

compliance, his claim of intent to return . . . to do additional 

examinations is made more, not less, credible.” Access 4 All, 

Inc. v. Absecon Hospitality Corp., Civ. No. 04-6060 (JEI), 2006 

WL 3109966, *7 (D.N.J. Oct. 30, 2006). The past patronage factor 

therefore weighs in Lasky’s factor. 

The third factor is the definiteness of Plaintiff’s plans 

to return. “[A] plaintiff's mere assertion that he hopes to 

return at some later date falls short of establishing a real and 

immediate threat of future injury.” Access 4 All v. Boardwalk 

Regency Corp., at *6. When Lasky was asked about his plans to 

return to North Wildwood, he said he had specific plans to 

return “but I don’t know exactly what date.” (Lasky May 7, 2012 

Dep. 18:2-4.) His purpose for future visits was “[t]o continue 

to see about access, to enjoy what little parts of the sidewalk 

that we can get to and we [the AFDA] hold our yearly meeting and 

we’re going to continue to hold it at Flip Flop[z].” (Lasky May 

7, 2012 Dep. 18:5-10.) He also plans to return to North Wildwood 

with his family for “enjoyment.” (Lasky Oct. 12, 2012 Dep. 

81:11-12.) Lasky’s reasons are far more than a “mere assertion 

that he hopes to return at some later date.” In particular, the 

AFDA has held multiple meetings at Flip Flopz restaurant in 

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North Wildwood and plans to continue doing so. This factor 

weighs in Lasky’s favor.

The fourth factor is the frequency of nearby travel. Lasky 

visits New Jersey up to four times per year for his roles as 

President of the AFDA and guardian ad litem for a disabled man, 

who was involved in litigation in Camden, New Jersey. (Lasky SOF 

¶¶ 7, 9.) In addition, he enjoys attending Philadelphia sporting 

events. (Lasky SOF ¶ 10.) His wife’s best friend lives near 

Hightstown, New Jersey, and he enjoys the change of seasons in 

New Jersey. (Lasky SOF ¶ 12.) This factor also weighs in Lasky’s 

favor. 

Essentially, three of the four factors indicate that Lasky 

has shown a likelihood of future injury. And the first factor, 

i.e., proximity, weighs neither for nor against Defendant

because North Wildwood is a tourist destination. Defendant’s 

motion for summary judgment as to Plaintiff Lasky is denied 

because Lasky has shown that he has constitutional standing.

ii. Future Injury Analysis for Plaintiff Hamill

Hamill easily satisfies the first factor, which is his 

proximity to Defendant’s place of public accommodation. Hamill 

lives in Voorhees, New Jersey (1st Am. Compl. at 1), which is 

undoubtedly less than 100 miles from North Wildwood.

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In terms of the second factor, i.e., past patronage, Hamill

traveled to North Wildwood on December 14, 2010, July 16, 2011, 

and October 22, 2011. (1st Am. Compl. ¶ 6.) Hamill’s first visit 

was two days before this action was filed, although his visits 

continued during the litigation. He admits that his visits have, 

in part, been fueled by this litigation. But, as discussed 

above, a plaintiff’s interest in visiting for litigation 

purposes or as a tester weighs in his favor. The second factor 

weighs in Hamill’s favor, although not strongly. 

The third factor is the definiteness of the plaintiff’s 

plans to return. When Hamill was asked on May 7, 2012 whether he 

planned to make more visits to North Wildwood, Hamill responded, 

“I don’t have any crystalized plans, more of a vague plan.” 

(Docket Item 53-3, Ex. L, Hamill May 7, 2012 Dep. 4:22-25.) 

Hamill “intends to return to North Wildwood as a tester” because 

he believes that Defendant’s attorney’s “clients would not 

comply with the ADA unless ordered by a Judge.” (Hamill SOF ¶¶ 

18-19.) He also intends to visit North Wildwood to attend AFDA 

conferences. (Hamill SOF ¶ 9.) And he “wants to enjoy the 

streets, avenues, and sidewalks of North Wildwood for cycling 

but is unable to do so.” (Docket Item 61, Hamill SOF ¶ 6.)

Hamill’s motivations are specific and definite. His 

previous attendance at AFDA meetings in North Wildwood lends 

credibility to his assertion that he plans to continue attending 

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them. Moreover, he has alleged that he cannot access the 

boardwalk for hand-cycling; it would be incongruous for the 

Court to require Hamill to specify dates when he plans to return 

to hand-cycle when he cannot currently do so due to the alleged 

barrier problems there. In Access 4 All v. 539 Absecon Blvd.,

the district court stated, “It is sufficient for a plaintiff to 

allege that he has actual knowledge of architectural barriers 

and that but for noncompliance with ADA provisions, he would 

avail himself of the defendant's goods and services.” Access 4 

All v. 539 Absecon Blvd., at *4. The district court made this 

statement in the context of discussing the past patronage 

factor, but its reasoning is also applicable to the definiteness 

of plans to return analysis. 

The fourth factor, i.e., frequency of nearby travel, also 

weighs in Hamill’s favor, albeit not strongly. He alleged that 

he frequently visits the Jersey shore, (1st Am. Compl. ¶ 6), but 

he has not provided details about these other trips. Given 

Hamill’s general proximity to North Wildwood, however, this 

factor also weighs in his favor.

Defendant’s motion for summary judgment as to Plaintiff 

Hamill is denied because Hamill has shown that he has 

constitutional standing.

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C. Evidentiary Hearing

Defendant also requests, if the Court finds that 

Plaintiffs’ assertions in opposition to Defendants motions are 

more than sham affidavits, a pretrial evidentiary hearing on the 

standing issue. “A sham affidavit is a contradictory affidavit 

that indicates only that the affiant cannot maintain a 

consistent story or is willing to offer a statement solely for 

the purpose of defeating summary judgment.” Jiminez v. All Am. 

Rathskeller, Inc., 503 F.3d 247, 253 (3d Cir. 2007).

Defendant argues that Plaintiffs’ affidavits submitted in 

support of their opposition briefs are sham affidavits, but 

Defendant’s argument lacks merit. (Docket Item 64, Def. Reply at 

1-2.) Defendant argues that Lasky’s affidavit states that “his 

wife’s best friend lives in Hightstown, which he incorrectly 

describes as located in Middlesex rather than Mercer County. . . 

.” (Def. Reply at 2.) The location of Lasky’s wife’s friend is 

relevant to establish Lasky’s connection to this area; Lasky’s 

misidentification of the county does not foreclose his 

connection to this area and it certainly does not make his 

affidavit a sham. Defendant also notes that Lasky’s affidavit 

states that he had “been going to North Wildwood since 

approximately 2008,” but in response to interrogatories, Lasky 

stated, “Driving to Cape May since 2008 and have driven through 

North Wildwood. I do not remember the dates.” (Def. Reply at 2.) 

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There is some inconsistency between the verbs “going to” and 

“driven through,” but this inconsistency does not negate the 

other evidence in the record regarding Lasky’s standing. “When 

there is independent evidence in the record to bolster an 

otherwise questionable affidavit, courts generally have refused 

to disregard the affidavit.” Baer v. Chase, 392 F.3d 609, 625 

(3d Cir. 2004). Moreover, “district courts cannot disregard an 

affidavit merely because it conflicts to some degree with an 

earlier deposition.” Access 4 All v. Boardwalk Regency Corp., at 

*7. Defendant has not shown that Plaintiffs’ affidavits are 

shams. 

Given that Plaintiffs’ affidavits are not shams and that 

Plaintiffs have established standing, at this procedural stage, 

the Court will not order an evidentiary hearing. “An evidentiary 

hearing is necessary to resolve questions of standing only when 

the Court cannot determine from the facts on record whether 

standing has been met.” Brown v. Showboat Atl. City Propco, LLC, 

Civ. No. 08-5145 (NLH), 2010 WL 5237855, at 5 n.9 (D.N.J. Dec. 

16, 2010). The record before the Court establishes, for summary 

judgment purposes, that standing has been met. There is no need 

for an evidentiary hearing.

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VI. Conclusion

Defendant’s motions for summary judgment will be denied 

because, construing all facts in the Plaintiffs’ favor, 

Plaintiffs have established constitutional standing.

March 11, 2013 s/ Jerome B. Simandle 

Date JEROME B. SIMANDLE

Chief U.S. District Judge 

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