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Taking mom and pop to court: Lawyers using federal law to serially sue local small businesses

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Call it a legal assault on the little guy.

Disabled residents protected under a federal law are serially suing mom and pop shops in Park Slope and Prospect Heights, forcing the small businesses’ owners to pay thousands of dollars in settlements or risk potentially ruinous legal battles, according to a local business leader.

“They’re going to go for a business that’s small, that’s not going to be able to fight back, that’s going to want to settle,” said Mark Caserta, head of the Fifth Avenue Business Improvement District.

Litigants have brought suit against at least 14 Fifth Avenue businesses, including the recently shuttered Dizzy’s diner, SkyIce, Cultured Yogurt, Lotus Vietnamese Sandwiches, Burger Bistro, Calexico, Luke’s Lobster, Hiroto Japanese Restaurant, Nahm Thai Kitchen, Russo’s Mozzarella and Pasta, Pick Quick Foods, Le Pain Quotidien, Pizza Town, and Uncle Barry’s. The lawsuits are being filed under the Americans with Disabilities Act, a 1990 law that grants federal protection to physically and mentally disabled people and requires companies to comply with specific accessibility standards.

Any business without some form of wheelchair access is liable under the legislation, but various infractions concerning signage, door width, sink height, and other less-obvious violations also can result in prosecution.

“We didn’t have a mirror at the right height in our bathroom,” said the owner of a Prospect Heights restaurant that was sued twice, who agreed to speak anonymously for fear of future litigation.

Disabled plaintiffs are required to attempt accessing a business before filing suit. But they do not have to inform its owner or any employees of their complaints before heading to court and, for many embattled proprietors, first news of their grievances appears in the form of a lawsuit.

“If it was me, and I generally wanted to patronize the business … I would bring it to the owner’s attention,” said SkyIce owner Jonathan Bayer, whose ice cream parlor was among the first Fifth Avenue shops to be sued. “That never happened.”

Among the litigants is wheelchair-bound Queens resident Pedro Fontanes, who has sued 55 businesses throughout the city since filing his first complaint last August, court records show. His lawsuits, which target at least 11 businesses on Fifth Avenue, were prosecuted by Manhattan attorney Ismail Sekendiz, who did not return messages seeking comment.

Individuals are not entitled to money under the legislation, but the same can’t be said for their lawyers, who can reap handsome fees through settlement deals.

In Park Slope, business owners who agree to settle can fork over between $5,000 and $6,500 in legal and other fees — which, while cheaper than financing a protracted legal battle, is still enough to severely affect a mom-and-pop operation’s bottom line, Caserta said.

“That’s a lot of money for a small business,” he said. “It’s crippling.”

But some advocacy groups, such as Brooklyn Center for Independence of the Disabled, offer a less aggressive approach to helping the community’s disabled by sending experts to check shops for compliance issues, according to a volunteer.

“This program is very positive, because we reach out to the site and tell them things they should make better,” said Yesenia Torres, who has been wheelchair-bound for 23-years because of a car accident.

She has never filed suit under the law, and said she would always attempt to work with a business owner before taking him or her to court.

“I would go the nicer way and speak to the person,” she said.

But Torres understands how the frustrations of living with a disability would lead a fellow differently abled person like Fontanes to seek legal recourse, she said.

“I think he has a mission,” she said. “A personal mission.”

The wheelchair-user is currently suing Fifth Avenue eatery Hiroto Japanese Restaurant, claiming he tried and failed to access it due to lack of handicapped facilities, according to court documents.

The eatery’s owner is not sure whether he’ll fight it out in court or settle to the tune of $6,000 — an amount that would devastate his business, he said.

“That’s a lot of trouble for us,” said Bryan Kheng. “We’ve got a lot to worry about.”

Reach reporter Colin Mixson at cmixson@cnglocal.com or by calling (718) 260-4505.
Updated 10:10 am, August 24, 2017
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Reasonable discourse

Steven from Rosner says:
'Differently abled",is a non-sensical politically-correct term,that began about 1990, and mercifully ended before 1995. It actually was a term for anybody,who was legally handicapped. It meant anything from a wheelchair-bound quadriplegic,to a neurologically-impaired(learning-disabled) individual. Since the victim of this alleged ADA act discrimination,does NOT have any financial gain,nor are these"mom and pop" businesses required to make the corrective-accommodations,it sounds like petty extortion-pure and simple. Besides,obviously some lawyers,is anyone else; on the take? Perhaps,the larger chain-stores,or even some local politicians-offices,are also prospering,at the expense of small(local) businessed?
Aug. 24, 2017, 9:30 am
Bunny from Columbia Street Waterfront says:
I think that the person who is doing all of the suing should have to speak to the business owners first about accommodating handicapped people before he sues. These people are trying to make an honest living and sometimes have a lot of pressure doing so. If someone notifies them first of the problem, they most likely will be most willing to comply. Seems to me this guy might be splitting the awards he receives with his attorney.
Aug. 24, 2017, 11:03 am
Reputable Attorney from Park Slope says:
I am a lawyer and this this is unadulerated b.s. and a money grab by some reptile of the legal profession. It solves nothing except the attorney's retirement account.

Perhaps we can build a wall around the plaintiff so he has nothing to worry about in terms of transportation. What a jackhole.

If I were to find the lawyer(s) that represent these "injured" parties, they would join the list of the physically challenged.
Aug. 24, 2017, 11:52 am
Petey from Sunset Park says:
William Shakespeare's Henry VI, Part 2, Act IV, Scene 2. "The first thing we do, let's kill all the lawyers".

Enough said!
Aug. 24, 2017, 12:53 pm
MJ from Bay Ridge says:
this is so unfair advantage
Aug. 24, 2017, 1:41 pm
Rachel from Sunset Park says:
Some might find having to ring a bell for assistance, so as to dine out on the town, an unnecessary humiliation.
Aug. 24, 2017, 10:38 pm
HONEY Pooter from Williamsburg says:
Just because he's in a wheelchair doesn't mean he's disabled! Pedro Fontanes might just be lazy or fat! That's not a disability!
Aug. 25, 2017, 3:39 am
Jim from Cobble Hill says:
These money-grubbing lawyers make a living off of threatening small businesses with a fuccking tape-measure. I hope those bastards have thir legs eaten off by raccoons.
Aug. 25, 2017, 8:03 pm
Steven Rosner from Fresh Meadows says:
How about the local business" advocacy organization",and the businesses sued,by this chronic"litigant";counter-suing him and/or his attorney/s,for harassment and pain and suffering? So far,none of the comnents,actually suggested-a solution.
Aug. 25, 2017, 8:35 pm
Sparkle from Bay Ridge says:
I will rage at those who don't want to hear my lunacy. I demand access to disturb the quite meals of ordinary people behaving "normally." I will sue if I am not permitted access to violate the rights to quiet enjoyment of others.
Aug. 25, 2017, 9:07 pm
Sean F. from Bensonhurst says:
If the plaintiff isn't being awarded money, and the defendant isn't required to make the changes, what does it gain this guy to file the suits? Want to bet he's getting a piece of the action from the lawyers?
Aug. 26, 2017, 3:33 pm
J.P. from Sunset park says:
Why can't the judge ask the owners to make the facility handicap accessible if possible before any legal action is taken against them because many of these stores cannot be renovated without tons of money, and owners cannot afford it.
Aug. 26, 2017, 5:20 pm
David Weinkrantz from Downtown Brooklyn says:
Steven from Rosner says that the "mom and pop" businesses are not required to make corrective accommodations.

According to Wikipedia, the ADA allows private plaintiffs to receive only injunctive relief (a court order requiring the public accommodation to remedy violations of the accessibility regulations).
Sept. 1, 2017, 1:15 pm
Paul Goebert from Park Slope says:
Cafe Steinhof just joined the ranks of the restaurants being sued. Help!
Sept. 1, 2017, 6:44 pm
Observer from Park slope says:
There seems to be a scammer going around and saying some small biz owners are not compliant with the law. In the case of one small biz owner in Park slope it seems that this person has had numerous other cases trying to get money from small business owners, and uses these law suits as their income. It's very sleezy and hopefully judges and lawyers will see that some of these people are real scam artist.
Sept. 1, 2017, 6:47 pm

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