JEROME PERDUM SR v. TARGET STORES PATHMARK STORES

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United States Court of Appeals, Second Circuit.

JEROME K. PERDUM, SR., Plaintiff-Appellant, v. FOREST CITY RATNER COMPANIES, FIRST NEW YORK PARTNERS MANAGEMENT, LLC, ATLANTIC CENTER FORT GREENE ASSOCIATES, Defendants-Appellees, TARGET STORES, PATHMARK STORES, Defendants.

No. 16-1240-cv

Decided: February 08, 2017

PRESENT: BARRINGTON D. PARKER, REENA RAGGI, CHRISTOPHER F. DRONEY, Circuit Judges. FOR APPELLANT: Michael L. Walker, Law Offices of Michael L. Walker, Brooklyn, New York. FOR APPELLEES: Richard M. Freiman, Zena Eldada, Richard Freiman & Associates, PLLC, New York, New York.

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the March 29, 2016 judgment of the district court is AFFIRMED.

Plaintiff Jerome K. Perdum, Sr., appeals from an award of summary judgment in favor of defendants Forest City Ratner Companies, First New York Partners Management, LLC, and Atlantic Center Fort Greene Associates, which dismissed Perdum's claim of disability discrimination in violation of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12101 et seq., for lack of standing. We review an award of summary judgment for lack of standing de novo. See Natural Res. Def. Council, Inc. v. U.S. Food & Drug Admin., 710 F.3d 71, 79 (2d Cir. 2013). We assume the parties' familiarity with the facts and record of prior proceedings, which we reference only as necessary to explain our decision to affirm for substantially the reasons stated by the district court in its thorough and well-reasoned opinion. See Perdum v. Forest City Ratner Cos., 174 F. Supp. 3d 706 (E.D.N.Y. 2016).

To establish standing under the ADA, a plaintiff must show, inter alia, an “injury in fact” that is both “concrete and particularized” and “actual or imminent.” Kreisler v. Second Ave. Diner Corp., 731 F.3d 184, 187 (2d Cir. 2013). The district court correctly concluded that Perdum lacks standing to bring his ADA claim because the “barriers to entry” that he alleges do not establish injury in fact. Perdum v. Forest City Ratner Cos., 174 F. Supp. 3d at 715–18. The “harassment” and associated penalties that he alleges resulted from his continued use of prohibited parking on a private street posed no obstacle to Perdum's access to the places of public accommodation here at issue: the Atlantic Mall shopping center and a Pathmark grocery store located therein. Perdum's argument that such harassment has “deterred” him from shopping at these places, Appellant's Br. 10; see Kreisler v. Second Ave. Diner Corp., 731 F.3d at 188 (holding deterrence from use of public accommodation may constitute injury under ADA), is belied by undisputed evidence that he has returned to and shopped at the Atlantic Mall after the alleged harassment, using alternative parking. See Perdum v. Forest City Ratner Cos., 174 F. Supp. 3d at 716. Perdum's argument that he has been “denied access to handicapped parking,” Appellant's Br. 9, also fails because the record shows that the parking garage associated with the Mall offers 30 designated handicapped parking places and direct elevator access to the Mall. Undisputed evidence establishes that Perdum is capable of entering the garage in his vehicle but chooses not to do so because it allegedly prompts him to experience “claustrophobia.” App'x 304. But he does not allege that condition to be a disability requiring accommodation. See Perdum v. Forest City Ratner Cos., 174 F. Supp. 3d at 717–18. Accordingly, Perdum's ADA claim was correctly dismissed for lack of standing.

We have reviewed Perdum's remaining arguments and conclude that they are without merit. Accordingly, the March 29, 2016 judgment of the district court is AFFIRMED.

FOR THE COURT:

CATHERINE O'HAGAN WOLFE, Clerk of Court

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