(Declaratory Relief)  (on behalf of Plaintiff and the Class)  101. Plaintiff realleges and incorporates by reference the foregoing allegations as if set  forth fully herein.  102.  An actual controversy has arisen and now exists between the parties in that  Plaintiff contends, and is informed and believes that Defendant denies, that the Website contains  access barriers denying blind customers the full and equal access to the goods, services and  22  facilities of the Website and by extension the Restaurant, which Defendant owns, operates, and/or  controls, fails to comply with applicable 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. Administrative Code § 8-107, et seq. prohibiting discrimination against the blind.  103.  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.  WHEREFORE, Plaintiff prays for judgment as set forth below.  (Violation of 42 U.S.C. §§ 12181, et seq. — Title III of the Americans with Disabilities Act)  (on behalf of Plaintiff and the Class)   (Violation of New York State Human Rights Law, N.Y. Exec. Law,   Article 15 (Executive Law § 292 et seq.)  (on behalf of Plaintiff and New York subclass)   (Violation of New York State Civil Rights Law, NY CLS Civ R,  Article 4 (CLS Civ R § 40 et seq.)  (on behalf of Plaintiff and New York subclass)   (Violation of New York City Human Rights Law,  N.Y.C. Administrative Code § 8-102, et seq.)  (on behalf of Plaintiff and New York subclass)   19.  Plaintiff, on behalf of himself and all others similarly situated, seeks certification  of the following nationwide class pursuant to Rule 23(a) and 23(b)(2) of the Federal Rules of Civil  6  Procedure: “all legally blind individuals in the United States who have attempted to access the  Website and as a result have been denied access to the enjoyment of goods and services offered  by Defendant, during the relevant statutory period.”    20.  Plaintiff seeks certification of the following New York subclass pursuant to  Fed.R.Civ.P. 23(a), 23(b)(2), and, alternatively, 23(b)(3): “all legally blind individuals in New  York State who have attempted to access the Website and as a result have been denied access to  the enjoyment of goods and services offered by Defendant, during the relevant statutory period.”   21.  There are hundreds of thousands of visually impaired persons in New York State.  There are approximately 8.1 million people in the United States who are visually impaired. Thus,  the persons in the class are so numerous that joinder of all such persons is impractical and the  disposition of their claims in a class action is a benefit to the parties and to the Court.   22.  This case arises out of Defendant’s policy and practice of maintaining an  inaccessible website denying blind persons access to the goods and services of the Website and  the Restaurant. Due to Defendant’s policy and practice of failing to remove access barriers, blind  persons have been and are being denied full and equal access to independently browse the Website  and by extension the goods and services offered through the Website by the Restaurant.   23.  There are common questions of law and fact common to the class, including without  limitation, the following:  a.  Whether the Website is a “public accommodation” under the ADA;  b.  Whether the Website is a “place or provider of public accommodation” under  the laws of New York;  7  c.  Whether Defendant through its Website denies the full and equal enjoyment  of its goods, services, facilities, privileges, advantages, or accommodations  to people with visual disabilities in violation of the ADA; and  d.  Whether Defendant through its Website denies the full and equal enjoyment  of its goods, services, facilities, privileges, advantages, or accommodations  to people with visual disabilities in violation of the laws of New York.   24.  The claims of the named Plaintiff are typical of those of the Class. The Class,  similarly to the Plaintiff, are severely visually impaired or otherwise blind, and claim that  Defendant has violated the ADA, and/or the laws of New York by failing to update or remove  access barriers on the Website, so it can be independently accessible to the Class of people who  are legally blind.   25.  Plaintiff will fairly and adequately represent and protect the interests of the  members of the Class because Plaintiff has retained and is represented by counsel competent and  experienced in complex class action litigation, and because Plaintiff has no interests antagonistic  to the members of the class. Class certification of the claims is appropriate pursuant to Fed. R. Civ.  P. 23(b)(2) because Defendant has acted or refused to act on grounds generally applicable to the  Class, making appropriate both declaratory and injunctive relief with respect to Plaintiff and the  Class as a whole.   26.  Alternatively, class certification is appropriate under Fed. R. Civ. P. 23(b)(3)  because questions of law and fact common to Class members clearly predominate over questions  affecting only individual Class members, and because a class action is superior to other available  methods for the fair and efficient adjudication of this litigation.  8   27.  Judicial economy will be served by maintenance of 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.   28.  References to Plaintiff shall be deemed to include the named Plaintiff and each  member of the Class, unless otherwise indicated.  29.  Defendant owns and operates the Restaurant located at 3165 Harkness Avenue,  Brooklyn, New York 11235.   30.  The Website is a service and benefit offered by Defendant throughout the United  States, including New York State. The Website is owned, controlled and/or operated by Defendant.   31.  Among the features offered by the Website are the following:  (a)  information about the Restaurant, including its hours, phone number, and  location;  (b)  menus;  (c)  retail prices;  (d)  and information about the Restaurant’s history.   32.  This case arises out of Defendant’s policy and practice of denying the blind access  to the Website, including the goods and services offered by Defendant through the Website. Due  to Defendant’s failure and refusal to remove access barriers to the Website, blind individuals have  been and are being denied equal access to the Restaurant, as well as to the numerous goods,  services, and benefits offered to the public through the Website.   33.  Defendant denies the blind access to goods, services and information made  available through the Website by preventing them from freely navigating the Website.  9   34.  The Internet has become a significant source of information for conducting business  and for doing everyday activities such as shopping, banking, etc., for sighted and blind persons.   35.  The blind access websites by using keyboards in conjunction with screen-reading  software which vocalizes visual information on a computer screen. Except for a blind person  whose residual vision is still sufficient to use magnification, screen access software provides the  only method by which a blind person can independently access the Internet. Unless websites are  designed to allow for use in this manner, blind persons are unable to fully access Internet websites  and the information, products, and services contained therein.   36.  There are well established guidelines for making websites accessible to blind  people. These guidelines have been in place for at least several years and have been followed  successfully by other large business entities in making their websites accessible. The Web  Accessibility Initiative (“WAI”), a project of the World Wide Web Consortium which is the  leading standards organization of the Web, has developed guidelines for website accessibility,  called the Web Content Accessibility Guidelines (“WCAG”). The federal government has also  promulgated website accessibility standards under Section 508 of the Rehabilitation Act. These  guidelines are readily available via the Internet, so that a business designing a website can easily  access them. These guidelines recommend several basic components for making websites  accessible, including, but not limited to: ensuring that all functions can be performed using a  keyboard and not just a mouse; adding alternative text to non-text content; and adding headings so  that blind people can easily navigate the site. Without these very basic components, a website will  be inaccessible to a blind person using a screen reader.  10   37.  The Website contains access barriers that prevent free and full use by Plaintiff and  blind persons using keyboards and screen reading software. These barriers are pervasive and  include but are not limited to: the use of images of text, rather than text, to display essential content.   38.  According to WCAG 2.1 Guideline 1.4.5, text should be used to convey  information, rather than images of text. The menus on the “Menu” page and the coupons on the  homepage are rendered as images, rather than as text that would be accessible via a screen reader.  Because of this formatting, blind users such as Plaintiff are unable to determine what kinds of food  the Restaurant offers. Additionally, blind users cannot access the Restaurant’s coupons and  therefore would pay more than sighted users who are able to understand the images of text. Thus,  the Website’s inaccessible design denies Plaintiff and blind customers the ability to independently  access coupons and menus on the Website.   39.  The Website thus contains access barriers which deny full and equal access to  Plaintiff, who would otherwise use the Website and who would otherwise be able to fully and  equally enjoy the benefits and services of the Restaurant.   40.  Plaintiff has made several attempts to view the coupons and menus on the Website,  most recently in August 2018, but was unable to do so independently because of the many access  barriers on the Website. These access barriers have caused the Website to be inaccessible to, and  not independently usable by, blind and visually impaired individuals.   41.  As described above, Plaintiff has actual knowledge of the fact that the Website  contains access barriers causing it to be inaccessible, and not independently usable by, blind and  visually impaired individuals.   42.  These barriers to access have denied Plaintiff full and equal access to, and  enjoyment of, the goods, benefits and services of the Website and the Restaurant.  11   43.  Defendant 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 to blind class  members with knowledge of the discrimination; and/or  (b)  constructing and maintaining a website that is sufficiently intuitive and/or  obvious that is inaccessible to blind class members; and/or  (c)  failing to take actions to correct these access barriers in the face of  substantial harm and discrimination to blind class members.   44.  Defendant utilizes standards, criteria or methods of administration that have the  effect of discriminating or perpetuating the discrimination of others.  45.  Plaintiff realleges and incorporates by reference the foregoing allegations as if set  forth fully herein.   46.  Title III of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12182(a),  provides that “No individual shall be discriminated against on the basis of disability in the full and  equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any  place of public accommodation by any person who owns, leases (or leases to), or operates a place  of public accommodation.” Title III also prohibits an entity from “[u]tilizing standards or criteria  or methods of administration that have the effect of discriminating on the basis of disability.” 42  U.S.C. § 12181(b)(2)(D)(I).   47.  The Restaurant is a sales establishment and public accommodation within the  definition of 42 U.S.C. § 12181(7)(B). The Website is a service, privilege or advantage of  12  Defendant. The Website is a service that is by and integrated with the Restaurant. Independent of  the Restaurant, the Website is also a public accommodation.   48.  Defendant is subject to Title III of the ADA because it owns and operates the  Website.   49.  Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(I) it is unlawful  discrimination to deny individuals with disabilities or a class of individuals with disabilities the  opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages,  or accommodations of an entity.   50.  Under Title III of the ADA, 42 U.S.C. § 12182(b)(1)(A)(II), it is unlawful  discrimination to deny individuals with disabilities or a class of individuals with disabilities an  opportunity to participate in or benefit from the goods, services, facilities, privileges, advantages,  or accommodation, which is equal to the opportunities afforded to other individuals.   51.  Specifically, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(II), unlawful  discrimination 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,  unless the entity can demonstrate that making such modifications would fundamentally alter the  nature of such goods, services, facilities, privileges, advantages or accommodations.”    52.  In addition, under Title III of the ADA, 42 U.S.C. § 12182(b)(2)(A)(III), unlawful  discrimination also includes, among other things, “a failure to take such steps as may be necessary  to ensure that no individual with a disability is excluded, denied services, segregated or otherwise  treated differently than other individuals because of the absence of auxiliary aids and services,  unless the entity can demonstrate that taking such steps would fundamentally alter the nature of  13  the good, service, facility, privilege, advantage, or accommodation being offered or would result  in an undue burden.”   53.  There are readily available, well established guidelines on the Internet for making  websites accessible to the blind and visually impaired. These guidelines have been followed by  other large business entities in making their websites accessible, including but not limited to  ensuring that all functions can be performed using a keyboard. Incorporating the basic  components to make the Website accessible would neither fundamentally alter the nature of  Defendant’s business nor result in an undue burden to Defendant.   54.  The acts alleged herein constitute violations of Title III of the ADA, 42 U.S.C.  § 12101 et seq., and the regulations promulgated thereunder. Patrons of Defendant who are blind  have been denied full and equal access to the Website, have not been provided services that are  provided to other patrons who are not disabled, and/or have been provided services that are  inferior to the services provided to non-disabled patrons.    55.  Defendant has failed to take any prompt and equitable steps to remedy its  discriminatory conduct. These violations are ongoing.    56.  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 goods, services, facilities, privileges, advantages, accommodations  and/or opportunities of the Website and the Restaurant in violation of Title III of the Americans  with Disabilities Act, 42 U.S.C. §§ 12181 et seq. and/or its implementing regulations.   57.  Unless the Court enjoins Defendant from continuing to engage in these unlawful  practices, Plaintiff and members of the proposed class and subclass will continue to suffer  irreparable harm.  14   58.  The actions of Defendant were and are in violation of the ADA and therefore  Plaintiff invokes his statutory right to injunctive relief to remedy the discrimination.   59.  Plaintiff is also entitled to reasonable attorneys’ fees and costs.     60.  Pursuant to 42 U.S.C. § 12188 and the remedies, procedures, and rights set forth  and incorporated therein Plaintiff prays for judgment as set forth below.  61.  Plaintiff realleges and incorporates by reference the foregoing allegations as  though fully set forth herein.   62.  N.Y. Exec. Law § 296(2)(a) provides that it is “an unlawful discriminatory  practice for any person, being the owner, lessee, proprietor, manager, superintendent, agent or  employee of any place of public accommodation . . . because of the . . . disability of any person,  directly or indirectly, to refuse, withhold from or deny to such person any of the  accommodations, advantages, facilities or privileges thereof.”   63.   The Restaurant is a sales establishment and public accommodation within the  definition of N.Y. Exec. Law § 292(9). The Website is a service, privilege or advantage of the  Restaurant. The Website is a service that is by and integrated with the Restaurant. Independent of  the Restaurant, the Website is a public accommodation.   64.  Defendant is subject to New York Human Rights Law because it owns and operates  the Restaurant and the Website. Defendant is a person within the meaning of N.Y. Exec. Law  § 292(1).   65.  Defendant is violating N.Y. Exec. Law § 296(2)(a) in refusing to update or remove  15  access barriers to the Website, causing the Website and the services integrated with the Restaurant  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 the non-disabled  public.    66.  Specifically, under N.Y. Exec. Law § 296(2)(c)(I), unlawful discriminatory  practice includes, among other things, “a refusal to make reasonable modifications in policies,  practices, or procedures, when such modifications are necessary to afford facilities, privileges,  advantages or accommodations to individuals with disabilities, unless such person can demonstrate  that making such modifications would fundamentally alter the nature of such facilities, privileges,  advantages or accommodations.”   67.  In addition, 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 no individual with a  disability is excluded or denied services because of the absence of 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.”   68.  There are readily available, well established guidelines on the Internet for making  websites accessible to the blind and visually impaired. These guidelines have been followed by  other large business entities in making their websites accessible, including but not limited to  ensuring that all functions can be performed using a keyboard. Incorporating the basic components  to make the Website accessible would neither fundamentally alter the nature of Defendant’s  business nor result in an undue burden to Defendant.   69.  Defendant’s actions constitute willful intentional discrimination against the class  16  on the basis of a disability in violation of the New York State Human Rights Law, N.Y. Exc. Law  § 296(2) in that Defendant has:   (a)  constructed and maintained a website that is inaccessible to blind class  members with knowledge of the discrimination; and/or  (b)  constructed and maintained a website that is sufficiently intuitive and/or  obvious that is inaccessible to blind class members; and/or  (c)  failed to take actions to correct these access barriers in the face of  substantial harm and discrimination to blind class members.   70.  Defendant has failed to take any prompt and equitable steps to remedy its  discriminatory conduct. These violations are ongoing.   71.  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 goods, services, facilities, privileges, advantages, accommodations  and/or opportunities of the Website and the Restaurant 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 members of the subclass will continue to suffer irreparable harm.   72.  The actions of Defendant were and are in violation of New York State Human  Rights Law and therefore Plaintiff invokes his right to injunctive relief to remedy the  discrimination.   73.  Plaintiff is also entitled to compensatory damages, as well as civil penalties and  fines pursuant to N.Y. Exc. Law § 297(4)(c) et seq. for each and every offense.   74.  Plaintiff is also entitled to reasonable attorneys’ fees and costs.   75.  Pursuant to N.Y. Exec. Law § 297 and the remedies, procedures, and rights set forth  17  and incorporated therein Plaintiff prays for judgment as set forth below.   76.  Plaintiff served notice thereof upon the attorney general as required by N.Y.  Civil Rights Law § 41.    77.  Plaintiff realleges and incorporates by reference the foregoing allegations as  though fully set forth herein.   78.  N.Y. Civil Rights Law § 40 provides that “all persons within the jurisdiction  of this state 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 . . . .”     79.  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 person or by any firm,  corporation or institution, or by the state or any agency or subdivision.”   80.   The Restaurant located in New York State is a sales establishment and public  accommodation within the definition of N.Y. Civil Rights Law § 40-c(2). The Website is a  service, privilege or advantage of the Restaurant. The Website is a service that is by and integrated  18  with the Restaurant.   81.  Defendant is subject to New York Civil Rights Law because it owns and operates  the Restaurant and the Website. Defendant is a person within the meaning of N.Y. Civil Law  § 40-c(2).   82.  Defendant is violating N.Y. Civil Rights Law § 40-c(2) in refusing to update or  remove access barriers to the Website, causing the Website and the services integrated with the  Restaurant 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 the non- disabled public.    83.  There are readily available, well established guidelines on the Internet for making  websites accessible to the blind and visually impaired. These guidelines have been followed by  other large business entities in making the Website accessible, including but not limited to:  ensuring that all functions can be performed using a keyboard. Incorporating the basic components  to make the Website accessible would neither fundamentally alter the nature of Defendant’s  business nor result in an undue burden to Defendant.   84.  In addition, N.Y. Civil Rights Law § 41 states that “any corporation which shall  violate any of the provisions 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 more than  five hundred dollars, to be recovered by the person aggrieved thereby . . . .”   85.  Specifically, under NY Civil Rights Law § 40-d, “any person who shall violate any  of the provisions 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 not less than one hundred dollars nor more  19  than five hundred dollars, to be recovered by the person aggrieved thereby in any court of  competent jurisdiction in the county in which the defendant shall reside . . . .”   86.  Defendant has failed to take any prompt and equitable steps to remedy its  discriminatory conduct. These violations are ongoing.   87.  As such, Defendant discriminates, and will continue in the future to discriminate  against Plaintiff and members of the proposed class on the basis of disability are being directly or  indirectly refused, withheld from, or denied the accommodations, advantages, facilities and  privileges thereof in § 40 et seq. and/or its implementing regulations.    88.  Plaintiff is entitled to compensatory damages of five hundred dollars per instance,  as well as civil penalties and fines pursuant to N.Y. Civil Law § 40 et seq. for each and every  offense.  89.  Plaintiff realleges and incorporates by reference the foregoing allegations as if set  forth fully herein.   90.  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.”    91.  The Restaurant is a sales establishment and public accommodation within the  definition of N.Y.C. Administrative Code § 8-102(9). The Website is a service, privilege or  advantage of the Restaurant. Independent of the Restaurant, the Website is a public  20  accommodation.   92.  Defendant is subject to City Law because it owns and operates the Restaurant and  the Website. Defendant is a person within the meaning of N.Y.C. Administrative Code § 8-102(1).   93.  Defendant is violating N.Y.C. Administrative Code § 8-107(4)(a) in refusing to  update or remove access barriers to the Website, causing the Website and the services integrated  with the Restaurant 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 the non-disabled public. Specifically, 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 reasonable  accommodation 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 the covered entity.” N.Y.C.  Administrative Code § 8-107(15)(a).   94.  Defendant’s actions constitute willful intentional discrimination against the class  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 blind class  members with knowledge of the discrimination; and/or  (b) constructed and maintained a website that is sufficiently intuitive and/or  obvious that is inaccessible to blind class members; and/or  (c) failed to take actions to correct these access barriers in the face of substantial  harm and discrimination to blind class members.   95.  Defendant has failed to take any prompt and equitable steps to remedy its  21  discriminatory conduct. These violations are ongoing.   96.  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 goods, services, facilities, privileges, advantages, accommodations  and/or opportunities of the Website and the Restaurant 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 subclass will continue to suffer irreparable  harm.   97.  The actions of Defendant were and are in violation of City law and therefore  Plaintiff invokes his right to injunctive relief to remedy the discrimination.   98.  Plaintiff is also entitled to compensatory damages, as well as civil penalties and fines  under N.Y.C. Administrative Code § 8-120(8) and § 8-126(a) for each offense.   99.  Plaintiff is also entitled to reasonable attorneys’ fees and costs.  100.  Pursuant to N.Y.C. Administrative Code § 8-120 and § 8-126 and the remedies,  procedures, and rights set forth and incorporated therein Plaintiff prays for judgment as set forth  below. 